Posted by marykeating on September 22, 2010 under disability discrimination | 
The EEOC has filed complaints against three companies to redress what seems to be a burgeoning trend: targeting disabled employees for layoff. The case in Maryland charges a land surveying firm with laying off two longtime workers while retaining people with less seniority and less experience. The layoffs occurred after the company had required employees to fill out a questionnaire delving into this medical conditions and the medications they took. The two laid off individuals had hypertension and diabetes. According to the complaint, they were able to perform their duties without an accommodation.
Under the Americans with Disabilities Act, an employer may not discriminate against an employee with a disability, or who is regarded as having a disability, or who has a record of a disability, so long as the person can do the essential functions of the job with or without a reasonable accommodation. In many cases the dispute centers on the identification of what are the truly essential functions of the job, in others whether the accommodation is reasonable. But here, the laid off workers were able to do their jobs. In a case filed in Atlanta by the EEOC, a worker who had been managing to do her job as a cashier at Rite Aid with arthritis by using a small stool at the cash register. After seven years of this accommodation, a new manager removed the stool because he “did not like the idea” of her using the school.
Discrimination against disabled employees probably stems from several psychological and financial sources. Some people just do not like people who are different, or have squeamishness about someone with a disease or disfigurement. Some employers calculate the cost of insurance premiums by someone with a medical condition, or assume that the person will take off more time than others. The law attempts to deal with this range of motivations by making it illegal to discriminate against someone who has a disability, has a record of a disability (such as cancer in remission), or is regarded as having a disability (such as where the person is rumored to have AIDS).
Although the EEOC’s complaint does not highlight this, the action of the Maryland firm requiring an questionnaire about health conditions and medications is a major no-no. Employers are allowed to ask if someone can perform the essential functions of the job with or without a reasonable accommodation. After hiring the person, the employer can explore the accommodations needed in more detail. But here, the EEOC alleges that employees who are doing their jobs without problem are subjected to an intrusive questionnaire, which was then used to weed them out. Neither of these actions passes muster under the ADA.
Posted by marykeating on August 27, 2010 under Workplace privacy, disability discrimination |
A local hospital, the Baltimore Washington Medical Center, is accused of forcing out injured employees in violation of the Americans with Disabilities Act and HIPAA. The class action lawsuit filed this week in federal court alleges that the hospital routinely insists that employees returning from medical leave undergo a medical examination by its own physician. The physician then is likely to opine that the employee is not capable of returning to work, contrary to the worker’s own doctor’s opinion. According to the suit, the hospital’s physician uses confidential medical information without the employee’s consent; on the other hand, the physician takes almost no note of the job requirements in deciding that the employee cannot do her job. Therefore there is no interactive process, as required under the ADA, to determine if some reasonable accommodation could keep the employee working.
I have seen this pattern followed by other employers. Fitness for duty exams are legal. But they can be misused. The physician enjoys the cachet of the highly trained professional, who is allegedly worrying only about the employee’s health and well-being. Yet in the hospital setting especially, the physician has a built-in conflict of interest. Even outside the hospital, the fitness for duty exam is performed by someone paid by the employer, and therefore the doctor’s independence may be compromised.
Posted by marykeating on April 30, 2010 under disability discrimination, retaliation |
William Blake sued Baltimore County in 2007 for retaliation. Blake had testified, after being subpoenaed, in a case brought by a fellow officer claiming to have been forced into early retirement in violation of the Americans with Disabilities Act. The next day the County ordered him to report to its chosen physician to determine if he was fit for duty. He was also ordered to bring voluminous medical records. Officer Blake felt compelled to comply with the order, since if he defied his superior he could be fired. But he was quite disturbed by the intrusion into his medical history.
The asserted reason for this exam was a ten-year old single instance of a seizure, which the County had not revisited since it happened until the date after Officer Blake’s testimony. The County’s physician concluded that his physical condition presented no obstacle to his continuing to work. The County followed up with further orders to undergo tests.
Officer Blake presented a classic case of retaliation for participating in a proceeding alleging discrimination. While retaliation has always been illegal, the courts for many years narrowed the ability to pursue a retaliation claim by requiring the retaliation to take the form of a tangible employment action, typically firing or demotion. So the employee who was moved to a tiny office and given no work to do was unable to pursue a retaliation claim.
That was the case until the Supreme Court widened the definition in the case of Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In that case the Supreme Court instructed that illegal retaliation occurs when the retaliatory treatment would dissuade a reasonable employee from making or supporting a discrimination claim in the future. It contrasted the anti-discrimination and the anti-retaliation provisions of the laws forbidding workplace discrimination: the anti-discrimination provision “seeks to prevent injury to individuals based on who they are,” while “the anti-retaliation provision seeks to prevent harms to individuals based on what they do.” Therefore, the types of retaliation that could chill the exercise of rights is much broader, and not necessarily limited to the workplace.
Since Officer Blake continues to work for Baltimore County, the jury sitting in federal court in Baltimore awarded him damages based solely on his emotional distress. Kudos to his lawyer, my friend Kathleen Cahill, for helping him obtain justice.
