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Tag: disability

New York City Workers with Disabilities Fight for Inclusion in Pandemic Recovery, Mayoral Race

Posted on by Workplace Fairness
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Even before the pandemic, unemployment among disabled workers in New York City was at a crisis level—just 30 to 35 percent were employed. Over the past year, the situation has grown even worse.

Independent living centers, which help disabled residents find socio-economic stability, reported that more than 50 percent of their clients were let go from their jobs, the Center for an Urban Future found in a March 2021 report.

Now, leaders of these centers are preparing a policy platform and calling for greater resources from City Hall hopefuls. As talk of pandemic recovery intensifies and the June 22 primary for citywide and council races fast approaches, leaders see an opportunity to make inroads against growing inequities.

FIRST FIRED, LAST REHIRED

The United States Census estimated there were nearly 900,000 people with disabilities in New York City as of 2019; the Office of the New York State Comptroller put it even higher, closer to 930,000 in 2017.

That’s a population close to twice the size of the borough of Staten Island. It’s a broad group of people, cutting across class, racial, and gender identities, with disabilities such as visual, hearing, ambulatory, cognitive—the list goes on.

“We’re the nurse, the doctor, the police officer, the educator, the person who’s cleaning the sidewalk, the person stocking shelves in stores,” said Christina Curry, executive director of the Harlem Independent Living Center. “You don’t need to be born in this community. It can happen at any moment.”

Independent living centers like Curry’s offer job training, counseling, and educational programs. Organizer Ed Robert led efforts to develop the independent living movement in the 1970s in Berkeley, California, as a means of empowering disabled people to live fulfilling lives on their own terms.

But New Yorkers with disabilities face a longstanding employment crisis. “Poverty is a huge, huge issue,” said Susan Dooha of the Center for the Independence of the Disabled, a nonprofit that serves 40,000 New Yorkers annually.

Data compiled by the University of New Hampshire Institute on Disability Statistics showed that about 26 percent of people with disabilities were living below the federal poverty level last year. The poverty level for a family of four in the United States in 2021 is an annual income of $26,500.

“We’re the last hired, first fired, and last rehired if things work the way they are now,” said Susan Scheer, founder of the city’s Access-A-Ride program (launched in 1990, the initiative offers a door-to-door transportation service to disabled New Yorkers) and CEO of the Institute for Career Development.

Often the main barriers to employment are “misinformation, fear, stigma,” Curry said. “Our common goal is to get the disabled community employed, to have access to the community, to remove those barriers.”

TRANSIT A HUGE OBSTACLE

With thousands out of work, transit reform will be crucial to bridging the gap.

Joe Rappaport of the Brooklyn Center for the Independence of the Disabled points to a survey by the New York Independent Living Council. “Transportation is cited as the second-most prominent reason for people to have trouble getting employment,” said Rappaport. “Second to discrimination.”

Less than one-quarter of New York City’s subway stations are compliant with the Americans with Disabilities Act (ADA), which passed over 30 years ago. And that’s if none of the elevators are out of service.

Many advocates want to see the transit system overhauled to reflect the principle of universal design, in other words, the reconstruction of spaces so that they can be accessed and understood by the largest group of people, regardless of their background and ability. Many of the changes community members would like to see, such as accessible subway stations and taxi cabs, are already mandated by city, state, or federal laws like the ADA.

Rappaport and others are involved in a growing number of accessibility-related lawsuits against local and state government to force these reforms. While he couldn’t comment on any one case in particular, he said he sees a decades-spanning trend.

“Typically, the response of the city when a disparity or shortcoming is pointed out by members of the community or organizations is, the city just says, ‘We’re going to fight this with everything we’ve got.’” Rappaport said. “This isn’t the de Blasio administration, or Bloomberg, or Giuliani, or Koch or Dinkins—it’s every administration.

“It’s inexcusable and it costs money. We’re going to win. The city’s going to lose. But in the meantime, the city’s lack of action puts people at risk.”

EMPTY BOARD SEATS

While it’s true that New York Governor Andrew Cuomo and state legislators in Albany have immense power over the Metropolitan Transit Authority (MTA), New York City isn’t powerless when it comes to decisions on the system’s capital projects.

The new mayor, whoever that turns out to be, may have a rosier relationship with the governor’s office than current Mayor Bill de Blasio does. Rappaport suggested a new mayor should redouble efforts to appoint members to the MTA Board; there are two vacancies now, but Cuomo has made no concerted public effort to get de Blasio’s nominees confirmed by the state senate.

These individuals would have veto power over capital projects that don’t, for instance, include financing the construction of additional elevators in the city subway system.

“Other entities—the state senate and assembly for example—over the years, have influenced the direction of the MTA’s capital program by using the threat of veto power to get what they want,” Rappaport said. “It’s not an unheard-of idea.”

In April the MTA proposed “Zoning for Accessibility,” a series of zoning reforms to incentivize private developers with the promise of financial awards to build elevators in the city’s subway stations.

This proposal aligns with the transit system’s five-year plan released in 2019 to pump millions of dollars into accessibility-oriented upgrades at dozens of stations. This week several transit and accessibility advocacy groups rallied together to call on President Biden to include $20 billion for this capital plan in the proposed federal infrastructure bill (also known as the American Jobs Plan).

CITY MUST LEAD BY EXAMPLE

And yet, even if transit options were widely accessible, other barriers to employment abound—chief among them, discrimination by employers.

Brett Eisenberg has been battling it for decades; before his current role as executive director of the Bronx Independent Living Center, he was at the insurance company American International Group working to improve corporate hiring practices.

“There’s a lot of misinformation out there about hiring people with disabilities,” said Eisenberg. “A new administration should lead by example. If you’re not hiring people with disabilities, how can you expect anyone else to?”

Many advocates point to the federal hiring quota for people with disabilities as a standard that the city should adopt, since it currently does not have one. Under the Obama administration, the federal government required that people with disabilities comprise 7 percent of its workforce; it soon surpassed that figure, hitting 14 percent in 2016.

SHUT OUT OF ELECTIONS

In an open letter to candidates for municipal office this spring, a coalition of independent living center directors and advocates demanded that campaigns become more accessible to disabled voters.

“Federal and local laws require reasonable accommodations for people with disabilities, including allowing full access to events, forums, and meetings,” they wrote. “But those laws often are ignored, and we end up shut out of the electoral process.”

The letter hasn’t gotten much response. “To be honest, we received a little inquiry, but not what we would want,” co-signer Eisenberg said. “In general when we talk about people with disabilities, the biggest problems we have are attitudinal.”

With primary day drawing near, a mix of co-signers of the April letter and others are working to release a formal platform to present to candidates on behalf of the disability community.

“It’s late in the game, but we think it will be useful for the next administration,” Rappaport said, “not just the next mayor but the next city council and other officials.”

‘NOT EVEN ON THE RADAR’

Only a few candidates had reached out to center leaders by the time of writing this article. Many advocates are concerned that services for the disabled are still largely left out of the political discourse.

“I have to be very careful, because politicians have very long memories,” Curry said. “We’re not even thought about to be forgotten when politicians and candidates start talking about what they want to do to help New Yorkers. We’re not even on the radar.

“We’re constantly re-educating them: we’re here. You want us to go vote? Well, it would be nice if you would help us in that fight to make sure the polling place is accessible.”

For Scheer, it comes down to political will. “Disability is a product of the environment, and the environment can be adapted,” she said. “I use a wheelchair, so stairs make me disabled when a ramp makes me abled.

“I don’t want to be having this conversation again with somebody in 20 years. This is our moment and we can really change the tide.”

This blog originally appeared at LaborNotes on June 10, 2021. Reprinted with permission.

About the Author: Emmet Teran is content manager of Unit, a digital platform launched to help U.S. workers form unions. He’s also a New Yorker with low vision and an Urban Policy & Leadership Master’s student at Hunter College.


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Guide to Disability Benefits Under the Federal Employees Retirement System (FERS)

Posted on by Aaron Wersing
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The Federal Employees Retirement System (FERS) is the primary retirement plan for federal employees. Congress created this plan in 1986 to replace the Civil Service Retirement System (CSRS), which had existed since 1920. FERS covers all employees who joined the federal service on and after January 1, 1987. One of the most important components of FERS is its disability benefits. 

If you are an injured or disabled federal employee, it’s critical for you to understand the disability benefits that FERS offers. It is also essential for you to understand the amount of compensation that you may potentially obtain.

Is FERS the Same as CSRS?

Many people ask whether FERS offers them the same disability benefits as CSRS. The answer is that the two systems have significant differences. For one, CSRS disability benefits are calculated differently than FERS disability benefits. 

Furthermore, CSRS only has one component—an annuity. FERS consists of three parts:

  • The Thrift Savings Plan (TSP);
  • Social security benefits; and
  • An annuity. 

The tax consequences of each retirement plan are also different.

Which Federal Employees Are Eligible for FERS Disability Benefits?

To be eligible for FERS disability benefits, you must have:

  • Finished at least 18 months of Federal service;
  • Become disabled because of a medical condition that prevents you from performing the essential functions of your position; and 
  • Applied for social security disability benefits. 

On top of all that, your disability must be expected to last at least one year. 

Your federal employer plays a significant role in this process as well. Specifically, your federal employer must demonstrate that it attempted to accommodate your disability within your current position. It must also show that it looked for and failed to find any other jobs you could perform with your disability.

There are two important things that you do not need to demonstrate to be eligible for FERS. First, you do not need to show that your disability prevents you from performing all work. You only need to demonstrate that it makes you unable to perform your position of record with or without reasonable accommodations. 

Second, you do not need to show that your medical disability resulted from your job.

How Can I Calculate the Amount of My Benefits? 

To calculate your FERS disability benefits amount, you first need to determine the highest average basic pay you earned during any consecutive three- year period in your federal career. This figure is called the “high-3” average salary. 

Most federal employees receive their high-3 average salary during the final three years of their career. However, you can use an earlier period of time if you received a pay cut near the end of your career. 

Once you know your high-3 average salary, you can calculate your disability benefits in one of two different ways based on your age and years of service. 

If you are over 62 and have 20 or more years of service, your disability benefits equal 1.1% of your high-3 average salary multiplied by the number of years you worked.

If you are older than 62 with fewer than 20 years of service, or under 62, you will receive just 1.0% of your high-3 average salary multiplied by the number of years of service.

Two Examples for Calculating FERS Disability Benefits


Let’s look at a couple of examples to show you how this process works.

Example 1: Fred’s high-3 average salary is $100,000. He is 65 years old and has 35 years of federal service.

Therefore, he can use 1.1% of his high-3 average salary. 1.1% of $100,000 is $1,100. $1,100 times 35 equals $38,500. Therefore, Fred will receive $38,500 a year in FERS disability benefits.

Example 2: John’s high-3 average salary is also $100,000. He is 50 years old and has 20 years of service. Because of this, he can only use 1.0% of his high-3 average salary when calculating his disability benefits. 1.0% of $100,000 is $1,000. $1,000 multiplied by 20 equals $20,000.

Therefore, John will get $20,000 a year in FERS disability benefits.

One final note. If you are less than 62 years old, your FERS disability benefits get reduced by the amount of any social security benefits you receive during the first 12 months of your disability retirement. After 12 months, your disability benefits get reduced by 60% of any social security benefits you receive.

How Can I Apply for FERS Disability Benefits?

You must do several things to apply for FERS disability benefits. First, you must complete Standard Form (SF) 3107, titled “Application for Immediate Retirement.” You must also complete SF 3112, titled “Documentation In Support of Disability Retirement.“ Although completing these forms may sound daunting, the good news is that your employing
agency will help you complete them. Your employer can also provide you with advice on what to include in your application package. Finally, your employer will forward your completed application package to OPM, the federal agency responsible for processing disability retirement applications.

If you are less than 62 years old, you also need to show whether you have applied for social security disability benefits after you separate from federal service. You can learn more about applying for FERS disability benefits here.

What Do I Do If the Government Denies My Application for FERS Disability Benefits? 

Your best choice is to contact a qualified federal employment attorney. Federal employment attorneys can evaluate why the government denied your application for disability benefits.  They can also assess whether the government was right in denying your claim. Moreover, a federal employment attorney can protect your rights to disability by appealing your denial of benefits.

This blog is printed with permission.

About the Author: Aaron Wersing is the founder of The Law Office of Aaron D. Wersing, PLLC. His practice
focuses on assisting federal employees with a wide variety of litigation and transactional matters.


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FAQ: COVID-19 and Navigating the Workplace with a Disability

Posted on by Elisabeth Baker Pham
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Many individuals with medical conditions managed through medication and/or lifestyle adjustments are finding themselves particularly vulnerable during the Covid-19 pandemic—especially when it comes to their employment. Some of these individuals may not previously have requested a reasonable accommodation for a heart or lung condition because they work in an office environment with sedentary duties.

This FAQ is intended to help employees navigate their options, from the basics to the nuances during this pandemic.

Q. My employer is making me come to work but I have a disability that makes me more likely to get really sick if I become infected with COVID-19. What can I do?

A. A “disability” under the Americans with Disabilities Act, is a medical condition that substantially limits one or more major life activities, such as standing, breathing, walking, etc. You can request a reasonable accommodation to help minimize your risk of catching COVID-19 in the workplace and/or during your commute.

Q. My employer says I am entitled to a reasonable accommodation once I get sick but not to help protect me from getting sick. Is that right?

Q. No. Employees with a disability that makes them more likely to become severely ill if they become infected with COVID-19 are entitled to a reasonable accommodation to minimize the risk of infection.

Q. What is a reasonable accommodation?

A. A reasonable accommodation is:

  • a workplace adjustment (which may also relate to an employee’s commute);
  • for a qualified employee with a disability (i.e., an employee who possesses the skills or qualifications necessary to perform the duties of the position);
  • which assists the employee in performing the essential functions of their position;
  • and which is not an undue hardship on the employer (an undue hardship is a modification whose cost or other requirements would pose a severe financial or organizational burden).

Q. How do I request a reasonable accommodation?

A. Requesting a reasonable accommodation is easy.

First, depending on the size of your organization, there may be a specific person designated to receive and process these requests. If you aren’t sure, ask Human Resources. If there is not a designated person, ask the person in your chain of command you feel most comfortable with. The request may be as simple as “I have a condition which makes me more likely to become severely ill if I catch COVID-19. I am requesting a reasonable accommodation.”

Then, suggest the reasonable accommodation you and/or your doctor thinks would be most effective. Be prepared, however, for your employer to suggest an alternative and to discuss that alternative in good faith. Importantly, you are not entitled to the accommodation of your choice; you are only entitled to an effective accommodation, even if it is the accommodation proposed by your employer. If you or your doctor does not believe the alternative accommodation proposed by your employer would be effective, you and your employer can negotiate for one that is mutually acceptable.

Finally, also be prepared that approval may not be automatic: your employer may need time to verify your disability and your need for the particular accommodation you requested, you may need time to get appropriate medical documentation, and your employer may need more time than normal to obtain any appropriate equipment. Both you and your employer are required to engage in an interactive dialogue in good faith—during this pandemic, this includes extra flexibility and patience from everyone. During this time, you should ask for an interim reasonable accommodation, a temporary accommodation that may be the same or different than the accommodation initially requested and may include the use of leave if there are no other alternatives.

Q. What kind of reasonable accommodations may I request?

A. Which accommodation is most appropriate will depend upon the individual’s disability and job duties. To determine which accommodation(s) would be most effective for you, provide your physician with a copy of your position description and discuss your request and any alternative(s) proposed by your employer. Common requests during this time include personal protective equipment (PPE), teleworking, and the use of leave.

Q. Is my employer required to grant my request?

A. It depends. An employer is required to approve a request for a reasonable accommodation which assists the employee in performing the essential functions of their position unless the accommodation would be an undue hardship. What may constitute an undue hardship is fact-specific and the current pandemic may have an effect. If an employer denies a request as an undue hardship, the employer should explain the basis for its decision and offer alternative accommodations, where possible. If an employee is facing denial of a request for a reasonable accommodation, they should speak with an attorney about the specific facts.

Q. I have a disability but I have not requested a reasonable accommodation and do not want one. My employer is requiring that all employees with any disability stay home and use their leave. Can they do that?

A. No. An employer may not exclude an employee from the workplace because of the employee’s disability unless it has a reasonable belief, based on objective evidence, that the employee’s disability makes the employee a threat in the workplace. An employer also may not exclude an employee from the workplace because the employee has a record of a disability or because the employer perceives the employee to have a disability.

Q. My employer says that I either have to come to work or stay home without pay, even though I have sick and vacation time available. Can they do that?

A. No. Although absence from work is a less common accommodation, and the courts differ on the circumstances under which this is appropriate, if an employer is offering or requiring absence from the workplace due to an employee’s disability, the employer cannot forbid the employee from using available leave during that time.

Q. I have requested a reasonable accommodation, but my employer is requesting medical documentation. Can they do that?

A. It depends. If an employer already has knowledge of the disability and the ways in which the disability limits the employee, the employer may not request the employee produce additional documentation.

Q. My employer is requesting medical documentation before approving my request for a reasonable accommodation, but I am having a hard time getting a medical appointment due to COVID-19 restrictions. What should I do?

A. Even where the employer may request documentation, the EEOC advises employers to be flexible during this time and suggests accepting alternative forms of verification such as prescriptions or health insurance records. Identify what alternative confirmation you may have available and talk to your employer’s disability coordinator.

Q. My employer is allowing me to telework due to COVID-19, but I have accommodations in the workplace that I do not have at home. Are they required to provide the same accommodations while I telework?

A. Employees are entitled to reasonable accommodations even when teleworking; however, there are unique factors that come into play. For example, if an employee already owns equipment at home, the employer may not be required to purchase a duplicate for home use. As another example, if the employee is only teleworking because of the pandemic, the relatively short duration of the telework arrangement will factor into an employer’s undue hardship analysis in terms of cost. Finally, as with any request for an accommodation during this time, supply shortages and delivery delays caused by the pandemic may impact the request.

Printed with permission.

About the Author: Elisabeth Baker-Pham is an Associate at Kalijarvi, Chuzi, Newman & Fitch. She represents employees and labor unions nationwide, advocating on their behalf in matters relating to claims of discrimination, harassment, and retaliation, wage and hour violations, whistleblower protections, and collective bargaining violations.

Before moving to D.C., Lisa was the Acting Director of the Office of Labor Relations for a state agency, where she previously served as labor and employment counsel. She provided daily guidance regarding a wide range of labor and employment matters with a focus on proactive compliance and appeared in administrative fora in matters relating to claims of discrimination and the state’s civil service laws. Lisa began her career as an intern with the same agency while focusing her law school studies on the areas of labor and employment law.

Lisa received her education at the University of North Florida (B.A. in Sociology and Political Science) and New England School of Law (J.D.). In law school, Lisa served as the Managing Editor of the New England Journal on Criminal and Civil Confinement.


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How People with Disabilities Can Find the Best Job Opportunities Out There

Posted on by Jim McKinley
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Though the number of people with disabilities in the workforce is still lower than the number of those without, things are changing. There are now more good job opportunities for people with disabilities than ever before. As the Brookings Institute notes, “the number of people who cite disability as a reason for not working has recently fallen, reversing a decades-long trend.” If you’re looking to be a part of the workforce, here are some things you need to know.

Consider home-based employment if your disability demands it

Only you can know if your particular disability more or less necessitates that you work from home, but if it does, you should know that the options for this type of employment are better now than they have ever been. One option is to turn your existing skills into an online venture. This could be writing, editing, accounting, consulting, or any number of highly-marketable skills you have from previous employment.

Even without prior marketable skills, finding work from home is possible. Setting up your own online store and becoming a “professional seller” on auction, craft, or other sales sites is a good option. As is work with affiliate marketing, call centers, and survey work.

Don’t let a disability prevent you from a career outside the home

If your particular disability isn’t debilitating enough to require working from home, it’s important to know that mobility issues should not preclude you from a rewarding career outside the home (nor does it, as over 10 million Americans with disabilities find this type of work). Jobs in administration, pharmacy services, and paralegal work are good career options for those with mobility issues or visual or hearing impairments.

Hone your networking skills

 Monster.com says your primary objective when job hunting is to alert others that you’re seeking employment and to opt for a targeted networking campaign to make inroads. To this end, you need to cast wide nets. First sit down and make a list of any business or personal contacts you know that could possibly be a lead on a quality job. You need to contact as many as possible and inquire about potential openings. It’s also smart to develop relationships with hiring managers and HR professionals at companies and in fields you desire to work — even if they’re not currently hiring. That’s networking at its finest.

Impress with your resume

A good resume will be flawless, will contain a concise but informative executive summary, won’t be too long (but will contain all pertinent information), and will contain specific keywords that hiring managers want to see.

You should try an online resume template even if you have resume-building experience. It’s smarter to have a guide that’ll help you create the perfect, eye-catching resume. You don’t want to miss anything and you want it to be as professional as possible. This is what will land you that coveted interview.

Don’t forget to check out these great resources

Thanks to the internet, you have a ton of resources out there to help you search for jobs, find information about hiring, develop your skills, and learn about your rights as a person with a disability. Check out the federal government’s USA Jobs site, giant disability jobs search site abilityJOBS, and USA.gov’s disability jobs educational hub for starters.

Don’t think your disability only allows for marginal, bare-bones employment. You can find lucrative and rewarding work either inside or outside the home. With some targeted effort through networking and trying to determine the best fit for you, your dream job could be on the horizon.

About the Author: A former banker with thirty years of experience, Jim uses his knowledge and skills to provide advice and resources to anyone seeking help with their financial literacy.


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Mental disabilities merit reasonable accommodation

Posted on by The Attorneys of Passman and Kaplan
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The many myths and stigmas surrounding mental illness create barriers in the workplace. Employees with mental disabilities may be hesitant to disclose their struggles or ask for accommodations, and for good reason. Employers often refuse “special treatment” or even retaliate against the person.

If you are a federal employee with a mental or intellectual disability, you have rights. Your agency is required to make the reasonable accommodations you need to do your job and excel in your federal service career. What might that look like?

The law on disclosure and accommodation

Job candidates are not required to disclose a mental disability (or any disability) in the hiring process. You cannot be fired, demoted, reprimanded or taken out of consideration for job postings if your condition is later disclosed or discovered.

The ADA National Network says that a psychiatric disability should not be an issue unless your condition affects your ability to do perform your duties. Your agency is legally bound to accommodate you if you develop a disabling mental condition in the course of employment, if your pre-existing disability worsens, or if your duties change in a way that your disability interferes with your job.

What does “reasonable accommodation” look like?

The Americans With Disabilities Act prohibits discrimination on the basis of physical or mental disability. The ADA specifically requires employers, including federal agencies and federal contractors, to make reasonable accommodations.

For mental disabilities such as post-traumatic stress disorder, panic/anxiety disorder, depression or obsessive-compulsive disorder, accommodations might include:

  • Allowing the employee to work from home
  • Allowing the employee to skip face-to-face meetings
  • A quieter work station or white noise earphones
  • Flexible scheduling for medical appointments
  • Temporary part-time status until the condition stabilizes
  • More frequent work breaks
  • Supervision by a different manager

The accommodation should be tailored to the employee and their limiting condition, and not merely dictated as a take-it-or-leave-it.

When the agency balks or pushes back

Some employers feel blindsided or betrayed when a disability comes to light. They might give a negative performance review or create a hostile working environment to force you to quit. They might flatly refuse the specific accommodation or refuse to engage in an interactive process to reach a viable solution. All of these responses violate the ADA. If this happens, it is time to consult legal counsel.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on October 3, 2018. Reprinted with permission. 

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.


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Walmart sued for alleged discrimination against pregnant workers

Posted on by Melanie Schmitz
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Federal regulators have filed a lawsuit against Walmart claiming the retailer forced pregnant workers to take unpaid leave and refused their requests for less physically demanding duties.

Companies are required by law to accommodate employee pregnancies the same way they would disabilities, according to an article on the lawsuit published by Reuters. The suit was filed Friday on behalf of Alyssa Gilliam and several other female employees.

In her complaint, Gilliam said she became pregnant in April 2015, at which point she requested “light duty or transfer to a less physically demanding job” to avoid any heavy lifting that might endanger her pregnancy. She said she was told “light duty” was only available “to employees on workers’ compensation.”

Gilliam claimed her requests for a chair, shorter work days, or additional breaks were also denied. She said that eventually, she was forced to transfer to a part-time job within the company, resulting in a pay cut and loss of benefits.

In November 2015, Gilliam said she submitted a doctor’s note to the company identifying a five pound lifting restriction. Walmart, in response, immediately placed her on unpaid FMLA (parental) leave, two full months before she was due to deliver.

The company allegedly denied requests for accommodations for other pregnancy-related medical restrictions made by other pregnant employees at the distribution center, the suit argues.

By contrast, Walmart “accommodated non-pregnant employees who were similar in their ability or inability to work.”

“For example, Defendant accommodated [distribution center] employees who had restrictions due to work-related injuries by providing them with light duty,” the suit reads.

“Defendant deprived Gilliam and a class of female employees of equal employment opportunities and otherwise adversely affect their status as employees, because of their sex and pregnancy.”

Julianne Bowman, the EEOC’s district director in Chicago, said in a statement Friday that Walmart’s alleged refusal to accommodate the pregnant workers amounted to a violation of federal law.

“What our investigation indicated is that Walmart had a robust light duty program that allowed workers with lifting restrictions to be accommodated,” she said. “But Walmart deprived pregnant workers of the opportunity to participate in its light duty program. This amounted to pregnancy discrimination, which violates federal law.”

The EEOC said it is seeking “full relief, including back pay, compensatory and punitive damages, and non-monetary measures to correct Walmart’s practices going forward.”

In a statement Friday, Walmart spokesperson Randy Hargrove responded to the suit, saying the company’s anti-discrimination policies were in full compliance with the law.

“Our accommodations policy has been updated a number of times over the last several years and our policies have always fully met or exceeded both state and federal law,” he said.

The nation’s largest private employer, Walmart is reportedly facing similar lawsuits in other states, including Illinois and New York. In May last year, Hargrove issued a statement insisting the company was “a great place for women to work.”

According to Reuters, the company requested to have the Illinois suit tossed out earlier this year, but was denied. The New York suit is currently pending.

This article was originally published at ThinkProgress on September 22, 2018. Reprinted with permission. 

About the Author: Melanie Schmitz is an editor at ThinkProgress. She formerly worked at Bustle and Romper. Send her tips here: mschmitz@thinkprogress.org.


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Failure to Accommodate is Disability Discrimination

Posted on by The Attorneys of Passman and Kaplan
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Many people with disabilities face barriers before they even get their foot in the door. But the hiring process is only one form of disability discrimination.

Employers — including federal agencies and government contractors — are legally obligated to accommodate disabilities. But what is considered a “reasonable” accommodation? What if the employer says no?

What does disability accommodation look like?

Under the Rehabilitation Act of 1973 and the Americans with Disabilities Act, employers must provide reasonable accommodations to enable individuals with a disability to (a) compete for a job, (b) access the workplace, (c) perform the functions of the job and (d) enjoy the perks and privileges of the job.

The Equal Employment Opportunities Commission offers these examples of disability accommodations:

  • A wheelchair ramp or handicap-accessible bathroom
  • Specialized equipment or workstation alterations
  • Dictation software for a person with carpal tunnel syndrome
  • An interpreter or TTY software for a hearing-impaired person
  • Changing or eliminating some job tasks
  • Dividing the work day or allowing for extra breaks
  • Working from home (telecommuting)
  • Reassignment to a vacant position

What is the process for requesting accommodations?

Many applicants are hesitant to ask for accommodations during the hiring process. They don’t want to jeopardize their shot, or may not know what accommodations are needed until they start the job.

A request for accommodations can be made at any time, orally or in writing. Once the request is made to a supervisor or manager, it must be forwarded to the agency’s designated Disability Program Manager. The DPM must accept the request and forward it to the appropriate parties. The DPM must respond to the employee within 10 days to discuss viable solutions.

What does failure to accommodate look like?

If management ignores or flatly refuses a reasonable request, that constitutes discrimination. The law requires employers to make a good faith attempt to work with the disabled employee. If the accommodation is not feasible because of cost or other factors, the employer is obligated to offer alternatives or consider compromises. Under the law, refusing to engage in an interactive process is considered failure to accommodate.

For federal employees, all requests for accommodation go through the EEOC. Sometimes the EEOC authorizes an accommodation that differs from the original request. This is not considered failure to accommodate.

What are the remedies for disability discrimination or inadequate accommodation?

If the EEOC denies a request, it must give a detailed explanation why. The employee can request reconsideration through an informal process. If the decision is still unsatisfactory, or if there has been an adverse action, the employee can initiate a formal appeal or grievance through the EEOC or the Merit Systems Protection Board.

If a government contractor or other private employer denies a reasonable request, the remedies vary. The employee could sue to force the employer to provide accommodation. If the employee was let go, reassigned or harassed after requesting accommodations, they could sue for reinstatement or sue for damages for wrongful termination or retaliation.

People with disabilities want to work and contribute and be valued, just like everyone else. If the accommodations would be effective and would not cause the agency or company undue hardship, the law requires it.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on May 31, 2018. Reprinted with permission.


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This man was denied a job as a sheriff’s deputy just because he has HIV. Now he’s suing.

Posted on by Zack Ford
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A Louisiana man has filed a federal lawsuit against the Iberia Parish Sheriff’s Office (IPSO) for allegedly discriminating against him in 2012. According to the complaint, filed last week by Lambda Legal, IPSO was prepared to hire Liam Pierce as a deputy sheriff, but allegedly opted not to after learning that Pierce has HIV.

“It was like a punch to the gut,” Pierce, 46, told ThinkProgress in a phone interview. “It really frustrated me that for all the wonderful things that are here in Louisiana and all the wonderful people we have, we still have people that are not appropriately educated with HIV, how it’s transmitted, what the risks are, and what isn’t risky.”

As the complaint recounts, two days after Pierce had his in-person interview with IPSO in March, 2012, Captain Rickey Boudreaux told him that was going to be hired by the department, pending a medical examination. That examination, completed two weeks later, found that Pierce indicated “no significant abnormalities or medical findings,” with all physical findings “within normal limits.” But it did state that he is HIV-positive. Two days after submitting the medical examination, Pierce received a letter from IPSO indicating that he would not be hired.

“It’s clear on the medical evaluation: The only thing negative was the HIV status,” Pierce said, adding that a friend’s contact at the department relayed to him that he wasn’t hired because he failed the medical. He immediately knew it was because of his HIV status. “Anybody with a simple amount of education is able to see right and wrong and this is plainly wrong. It’s no different than discriminating against somebody because they have diabetes or because they have cancer. You can’t discriminate against that. It’s wrong.”

Indeed, the U.S. Department of Justice has resources dedicated specifically to educating the public about how discrimination on the basis of HIV status is a violation of the Americans with Disabilities Act.

Pierce has a long history of service to others. He’s been an EMT, a paramedic, a firefighter, and a police officer. It was actually Hurricane Katrina that brought him to Louisiana in the first place; he ditched his old job after securing authorization to join the first-responder recovery efforts. He was hired full-time shortly thereafter by a local agency. To this day, he still teaches various public safety courses, including firearm safety, first aid, CPR, and — ironically — blood-born pathogens. His enthusiasm for helping others even convinced his husband to take an interest in firearm safety and they now teach the classes together.

After his HIV diagnosis in 2003, Pierce said, “I actually spent my days and nights reading everything I could”; he even began doing HIV education, including services specifically intended to help others who have just learned of their own HIV diagnoses.

“When you’re first diagnosed, a lot of people feel it’s the end of the world, and you quickly realize it’s not the end of the world,” he said. “It’s a condition, like any other condition, that requires medication, medical care, and also self-care.”

Because of his role in medical education, Pierce is particularly attuned to people’s misconceptions about HIV. When he first disclosed his status to people, he remembered many were afraid even if he’d cough or sneeze. The biggest misconception he’s encountered is that many people don’t understand the difference between HIV and AIDS.

“People think that once you have AIDS you always have AIDS, and that’s not the case anymore. I’ve known people who have had a CD4 count of two and have come back because they changed their lifestyle; they started taking care of themselves,” he said. “People don’t understand that the two are very different.” (A CD4 count refers to white blood cells and the health of a person’s immune system; an uncompromised immune system has a CD4 count of 500 or higher.)

With this lawsuit, Pierce recognizes that he now has an even bigger platform with which to help others better understand the virus; specifically, he said he hopes more people embrace a “willingness to empathize” with people living with HIV. “We don’t need people to feel sorry for us, we don’t need people to treat us any different, but understand the facts and not just the rumors,” he said.

He added that he’s had reservations about the lawsuit, recognizing that it could open him up to future discrimination, but he still believes it’s the right thing to do.

“I’ve always been very private about my HIV status,” he said. “I’ve always tried to make it the smallest part of my life. By standing up, I might be able to help others. And by standing up, I might be able to change the way things are done here in Louisiana and maybe give someone else an opportunity to not have to go through what I went through.”

IPSO told ThinkProgress that it does not comment on pending litigation.

This article was originally published at ThinkProgress on October 30, 2017. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students.


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How States Are Trying to End the Disability Unemployment Crisis

Posted on by S.E. Smith
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Data in the newly released 2016 Disability Statistics Compendium are highlighting a pernicious, and complex, disparity for the disability community: unemployment. In 2015, less than 35 percent of disabled Americans between 18-64 living in the community were employed, in contrast with some 76 percent of their non-disabled counterparts.

This is not just a disparity of disabled and non-disabled, though, but also one determined by state of residence. In Wyoming, for example, nearly 60 percent of disabled people are employed, while at the other end of the spectrum, in West Virginia, the disability employment rate is around 25 percent.

Understanding why employment outcomes for disabled people are so widely variable is important because such knowledge may contribute to a fresh approach to getting disabled people who are ready and willing to work into fulfilling jobs.

Officials from South Dakota Advocacy Services (SDAS), an agency charged with disability advocacy, shed some light on the subject. Their state has a disability employment rate of slightly more than 50 percent, an accomplishment they’re proud of. While the path to getting to that number takes work, officials argue, it’s achievable.

“South Dakota has a lot of things other states could look to,” says Tim Neyhart, executive director at SDAS.

Officials’ work starts at the high school level. As disabled students get closer to graduation, community agencies start working with them to prepare them for the workforce to ensure they don’t fall through the cracks as they move into adulthood.

Cole Uecker, also of SDAS, explains that the goal is “integrated competitive employment,” with disabled people entering the job market alongside their non-disabled peers, instead of being shunted to sheltered workshops. Under the sheltered workshop model, disabled people are segregated in facilities where they complete basic, repetitive tasks for low pay—often subminimum wage—and don’t achieve autonomy and independence.

Disabled students in South Dakota are paired with rehabilitation specialists who help them acquire job skills and learn about the programs and services available to them. To address the “benefits trap” that keeps disabled people unemployed because they fear losing services, the state offers Medical Assistance for Workers with Disabilities, a Medicaid buy-in program that allows them to retain benefits while working.

Elsewhere in the country, some areas use job programs like Project SEARCH, which originated at Cincinnati Children’s Hospital Medical Center in 1996 when a nurse—frustrated with high turnover among hospital support staff—got the idea of bringing in disabled people, providing them with vocational rehabilitation at the hospital and encouraging them to enter the workforce. The formalized program now has some 3,000 graduates per year, says Maryellen Daston, a program specialist, and a very high success rate, with participants in Project SEARCH finding employment after the program at a rate of 77 percent in 2015.

Neyhart and Daston echo each other when they talk about getting disabled people into the workforce. Both assume that disabled people are capable of work and want to be part of the community. Both prioritize integrated competitive employment and early intervention to identify needs before people leave school.

But lots of states have similar goals and programs, so why are some states having such radically better outcomes than others?

One answer lies in demographics. South Dakota, for example, is not a highly populous state, which makes the personalized, thoughtful intervention needed for successful employment programs functionally possible. Moreover, just 12.5 percent of the state’s residents identify as disabled in the American Community Survey. By comparison, nearly 20 percent of residents in West Virginia identify as disabled. Neyhart also acknowledges that South Dakota has a low unemployment rate overall.

States with higher disability unemployment rates often have a larger disabled population. They also tend to be more populous overall, in addition to more racially diverse. Administering effective support programs may be more challenging with heavier demands on state resources—especially in states struggling with poverty, like much of the South, where disability employment rates are low.

Programs that enable a smooth transition from school to the workplace have documented results, as does allowing people to enter the workplace while retaining critically important healthcare benefits. This may be a challenge of scale, which could be a good thing, because that means it’s a problem with the potential to be solved.

“In order to improve, you always have to be looking at areas in which the numbers aren’t as good,” notes Neyhart.

This blog originally appeared at inthesetimes.com on March 21, 2017. Reprinted with permission.

S.E. Smith is an essayist, journalist and activist is on social issues who has written for The Guardian, Bitch Magazine, AlterNet, Jezebel, Salon, the Sundance Channel blog, Longshot Magazine, Global Comment, Think Progress, xoJane, Truthout, Time, Nerve, VICE, The Week, and Reproductive Health Reality Check. Follow @sesmithwrites.


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Maryland To Become The Second State To Guarantee Fair Minimum Wage For Workers With Disabilities

Posted on by Cory Herro
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CoryHerroMaryland will soon become the second state, after New Hampshire, to phase out the “subminimum wage” for workers with disabilities.

Maryland lawmakers this month passed a bill that would do away with special wage certificates that allow employers to pay disabled workers according to productivity rather than hours worked. The law affects all 36 of Maryland’s “sheltered workshops” — nonprofit organizations that hire people with disabilities at subminimum wages to perform basic tasks like assembling products, hanging clothes, or picking up trash.

Some 420,000 Americans with disabilities are employed this way nationally, some at a rate of just pennies per hour. The average Marylander working under this arrangement makes less than $4 per hour — an unjust rate that no longer jives with modern attitudes toward disability, advocates say.

The bill’s sponsor, Rep. Jeff Waldstreicher (D), says the bill is a victory for civil rights.

“By passing HB 420 and SB 417, we have upheld Maryland’s highest ideals,” he wrote in a public statement. “Marylanders are a compassionate, caring people. We believe in the dignity of every individual, in equal rights.”

In addition to boosting wages, the bill aims to desegregate Maryland’s workforce over the next four-and-a-half years. The Department of Disabilities will reallocate state and Medicaid funding to promote employment in “competitive, integrated workplaces” rather than in sheltered, segregated workshops. The state will pick up the tab for planning workers’ transitions to integrated employment.

“People thrive in a diverse workplace,” Waldstreicher told ThinkProgress. “Most of these workers want this transition, and we want to help it go smoothly.”

Legislators have worked closely with the sheltered workshops, and the majority are on board. They were initially concerned that higher wages would displace workers, but the state’s integrated employment plan assuaged their fears.

Disability advocates applauded the legislation, saying sheltered workshops are ineffective and reforms are long overdue.

“[Workshops] offer the employees no opportunities to be part of their community or to make enough money to support themselves,” the Autistic Self Advocacy Network said in a statement commending the Maryland legislation.

“Sheltered workshops often rely on outdated, non-mechanized production processes — which are poor vehicles for developing the skills real employers need in the open market economy,” writes University of Michigan law professor Samuel Bagenstos in a report to the National Federation of the Blind.

Indeed, only 5 percent of sheltered workshop employees leave to take a job in the community, according to a 2001 investigation by the Government Accountability Office.

The bill is now on the desk of Gov. Larry Hogan (R). Waldstreicher told ThinkProgress he’s “positive” the governor will sign it into law.

These developments in Maryland are part of a turning tide against paying disabled workers less than minimum wage. Last month, Democratic presidential candidate Hillary Clinton expressed support for eliminating the subminimum wage nationwide.

“We’ve got to figure out how we get the minimum wage up and include people with disabilities in the minimum wage,” Clinton said when a young lawyer with autism asked her about the minimum wage exemption. “There should not be a tiered wage.”

And in 2014 President Obama included workers with disabilities in his federal minimum wage hike — guaranteeing minimum wage for some 50,000 federal contract employees with disabilities.

This blog originally appeared at ThinkProgress.org on April 20, 2016. Reprinted with permission.

Cory Herro comes to ThinkProgress from California, where he writes columns for The Stanford Daily and tutors rowdy middle schoolers. He likes to play pickup hoops and surf, even though his skills are rudimentary. Cory is pursuing a bachelor’s in public policy with a focus on poverty policy.


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