November 2011 Archives

November 21, 2011

Disability Discrimination in the Workplace Leads to Termination, Hostile Work Environment

In previous articles, various forms of employment discrimination that are covered under Title VII of the Civil Rights Act of 1964 have been discussed. One that has not been covered is disability discrimination. The Americans with Disabilities Act of 1990 (ADA) was also enacted to protect employees and potential employees from discrimination based on a physical or mental disability. Employers with more than 15 employees are required to give potential employees with disabilities the same opportunity to obtain a position as those without a disability. Once employed with a company, disabled employees should enjoy the same benefits, such as equal pay, opportunities for advancement, and job selection. They should feel welcome at work and have certain accommodations made to enable them to do the job if necessary.

These laws do not mean that a disabled individual has to be considered for every type of position. If a disability would put the employee, co-workers or the general public in harm's way, he or she is not entitled to the same consideration. The individual must also have the qualifications, experience and skills necessary for the job.

In a Kentucky disability discrimination case last year, an employee at a Waffle House in Mount Vernon was wrongfully terminated after she informed her employer she had Hepatitis C. The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against the owner of the Waffle House and reached a settlement out of court. The settlement included back pay for the terminated employee and required the employer to provide anti-discrimination training and to refrain from future discrimination or retaliation.

More recent cases involve individuals who were discriminated against because of their diabetes. In August of this year, the EEOC filed a lawsuit on behalf of Pamela Manning, an employee of Kohl's , who had diabetes. Ms. Manning's set work schedule suddenly changed to an irregular one. She began suffering from complications from her diabetes because of the irregular schedule and asked to be returned to a set schedule. Kohl's refused, even after seeing a note from Ms. Manning's doctor. Because of her health, she was forced to quit. According to the EEOC press release, the suit "seeks monetary relief for Manning, the adoption of strong policies and procedures to remedy and prevent disability discrimination by Kohl's, training on discrimination for its managers and employees, and more." An 18-year employee of Walgreens who had diabetes was fired in California because she ate a bag of chips when she felt her sugar levels dropping. She paid for the chips as soon as she was able, but was still terminated. According to the ADA, employers are required to make reasonable accommodations for those with disabilities, and allowing an employee to eat a bag chips to avoid a medical emergency would seem like a "reasonable accommodation."

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November 15, 2011

Family Medical Leave Act

The Family Medical Leave Act (FMLA) was enacted in 1993 to allow employees to take time off work without pay for certain family or medical reasons. In order to qualify for FMLA, an employee has to have worked for the employer for 12 months over the previous seven years, and worked 1250 hours during the last 12 months. Employers that have fewer than 50 employees who have worked 20 weeks during the last year are not required to provide leave under this act. According to the Department of Labor website, qualified employees are eligible for 12 weeks of unpaid leave for the following reasons:

  • for the birth and care of a newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for a spouse, son, daughter, or parent with a serious health condition;
  • to take medical leave when the employee is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

An additional 12 weeks of leave are available to certain relatives of injured service members.

FMLA pertains to several different types of situations, as shown by recent cases in the news. In Southern California, an executive chef for a country club went into septic shock after surgery and was in a medically induced coma for two months. While he was ill, the country club replaced him with another chef. Under FMLA, the country club was required to keep his job for him until he returned. Late last week, the U.S. District Court agreed with Mr. Caupain, the chef, and granted summary judgment in his favor. This means the case will move forward to the damages phase without a trial to determine if Mr. Caupin was wrongfully terminated under FMLA. The trial to determine damages is scheduled for January 2012.

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November 10, 2011

Reverse Discrimination in the Workplace

When the Civil Rights Act of 1964 was enacted, it was meant to protect minority groups from discrimination by the majority. People of different races, genders, religions, and national origins were given the right to vote and were more protected in the workplace. The act has provided more equality for these groups for over 40 years. Sometimes, however, members of the majority discover they need protection as well.

On November 1, 2011, a jury ruled that Michael Clum, a white male, had been discriminated against after an altercation between him and a co-worker who was African-American. Mr. Clum and his co-worker were having a dispute when unfriendly words were exchanged. Mr. Clum's employer, Jackson National Life Insurance, determined his final response was violent in nature and terminated him. Mr. Clum filed a reverse discrimination suit because he was terminated and his co-worker was not reprimanded. The jury agreed that he had been discriminated against in his termination and awarded him over $1 million for lost wages and emotional distress.

In another recent case, the Equal Employment Opportunity Commission (EEOC) filed suit against Hamilton Growers, Inc. in Georgia on behalf of 19 workers who claim they were discriminated against because of their national origin. The 19 workers are Americans. According to the suit, Hamilton Growers, Inc. favored workers from Mexico over the American workers by giving them better job assignments that allowed them to earn more pay and by firing almost all of the American workers in the 2009 and 2010 growing seasons. The suit asks for lost wages, compensatory damages, and punitive damages. This case illustrates that Title VII, the portion of the Civil Rights Act of 1964 that specifically discusses workplace discrimination, protects people of all national origins, even Americans who are the majority. This case was filed in October, 2011 and is still pending.

Reverse religious discrimination has also been the subject of lawsuits. In Noyes v Kelly Services, Ms. Noyes claimed she was discriminated against because she was not a member of the same religious organization as her supervisor. When a manager position became available at Kelly Services, the plaintiff was passed over for another individual who had less experience and education than she did. Ms. Noyes filed suit, claiming the other woman was promoted because she was a member of Fellowship of Friends, the same organization to which her supervisor belonged. She also noted that four of the last five promotions had been given to members of the same religious group. The jury agreed with Ms. Noyes, awarding $647,000 in compensatory damages and $5.9 million in punitive damages.

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