Kentucky Employment Lawyer Blog

Articles Posted in Americans with Disabilities Act

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Recently, the Seventh Circuit determined that there was no disability discrimination in a case where a legally blind employee was shifted to a different position due to his failure to perform certain work functions.

ice-cream-845894-m.jpgIn Bunn v. Khoury Enterprises, Inc., Joshua Bunn worked as an hourly employee for Dairy Queen, owned and operated by Khoury Enterprises. Bunn was legally blind, with no vision in one eye and reduced vision in the other. Hired in September 2010, Bunn and other employees of his rank were required to rotate between the duty stations, including preparing ice cream and other food, working at the cash register, and keeping the dining area in good order. Bunn was first assigned to the station involved with preparing ice cream, but he was unable to perform certain duties without accommodation, due to the fact that the ingredient labels were too small, and monitors displaying the orders were placed too high for Bunn to see.

Finally, Bunn’s store manager trained him for the “Expo” station, where employees were responsible for delivering food to customers eating at the restaurant and for keeping the dining area clean. Bunn performed those duties without need for accommodation, so his manager arranged for him to be there full-time, as opposed to his coworkers, who continued to rotate. Otherwise, Bunn maintained the same hours as his coworkers, up until the point where he got suspended for 10 days due to ignoring the night manager’s request to put his cell phone away. Once Bunn returned to work, his hours were decreased reportedly due to the fact that business slowed down during the cold-weather months. Finally, Bunn submitted his resignation in February 2011, claiming that he could find more hours with another employer. He then filed a claim of discrimination with the Equal Employment Opportunity Commission (EEOC) and eventually a lawsuit against Khoury Enterprises. The district court ruled in Khoury Enterprises’ favor, and Bunn appealed to the Seventh Circuit.
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The United States Supreme Court agreed to consider whether the federal Pregnancy Discrimination Act required employers to accommodate the work restrictions given to pregnant employees in the same way they do for non-pregnant employees with injuries and other temporary impairments.

maternity-photos-1252249-m.jpgThe petitioner, Peggy Young, was a part-time delivery driver for United Parcel Service, Inc. (UPS). During her pregnancy, her physician provided her with a lifting restriction of no more than 20 pounds, which her employer refused to accommodate, even though UPS offered light duty to workers who had been injured during the course of their duties. Young eventually sued, claiming a violation of the Pregnancy Discrimination Act of 1978. The Fourth Circuit ruled that the Act did not require UPS to accommodate a worker’s pregnancy, stating that the Act’s “plain statutory text” as well as its statutory purpose did not support Young’s interpretation. The Court found that UPS’s “pregnancy-blind” accommodation was sufficient and did not constitute disparate treatment.

However, the Fourth Circuit’s decision conflicts with a Sixth Circuit decision dating back to 1996. In Ensley-Gaines v. Runyon, the Sixth Circuit found that not only did the Pregnancy Discrimination Act recognize Title VII’s ban on sexual discrimination, but also provided added protection to pregnant women by requiring employers to provide them with the same accommodation as non-pregnant employees who were “similar” in their ability to work. Furthermore, the Sixth Circuit had found that a pregnant woman did not need to make a showing that a worker who received better treatment was similarly situated in every way. The pregnant employee just needed to show that a non-pregnant employee with a similar ability (or inability) to work was receiving more favorable treatment.
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In a recent ruling, the Sixth Circuit Court of Appeals expanded the instances where telecommuting could be considered reasonable accommodation for employees who were disabled.

laptop-work-1260785-m.jpgEEOC v. Ford Motor Company, Jane Harris was hired in 2003 to be a resale buyer at Ford, a position that required her to be the intermediary between steel suppliers and “stampers,” or companies that used steel to manufacture parts for Ford. One role of the resale buyer was to respond to emergency supply issues in order to ensure that there was no gap in steel supply to the parts manufacturers. While some individual tasks, like updating spreadsheets and periodic site visits, were involved, the core of the job was to group problem solve, requiring the buyer to be available to interact with members of the resale team, suppliers, and other members of Ford when there were problems. Ford managers had determined that these types of meetings were best conducted face-to-face, and that email and teleconferencing did not work as substitutes.

Harris suffered from a condition called irritable bowel syndrome, which caused her significant distress. On her worst days, she was unable to drive to work or stand up from her desk without soiling herself. As a result, she began to take leave under the Family and Medical Leave Act (FMLA). During her employment, Harris was considered to be a competent, but not perfect employee. Performance reviews taken from 2004 to 2008 rated her as “excellent plus” and noted that she worked diligently with “minimal supervision.” However, she received low rankings on her contribution assessment, and on most job-related skills in 2007 and 2008. After she began taking FLMA leave, her absences hurt her job performance. In order to help her keep up, Harris’s supervisor let her do a flex-time telecommute schedule where Harris worked evenings and weekends to keep up with her work. However, Ford did not credit her with work performed outside of core business hours because she could not engage in team problem solving or access suppliers for information.
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Employers who face employment discrimination charges often come across as villainous and uncaring. But sometimes, employers that may have actually been trying to look out for an employee end up discriminating against them. According to the Equal Employment Opportunity Commission (EEOC), this still does not make the discrimination acceptable. The following three scenarios all resulted in workplace discrimination actions being filed against the employers, two under the Americans with Disabilities Act and one under the Pregnancy Discrimination Act.

The Pregnancy Discrimination Act was enacted in 1978, and was added to Title VII of the Civil Rights Act of 1964 under the section regarding sexual discrimination. This new section made it illegal to discriminate against women who were pregnant or had medical problems related to pregnancy or childbirth. On November 13, 2012, the EEOC issued a press release stating it had filed a lawsuit under this portion of the act on behalf of a pregnant woman who had been terminated. The hotel franchise owner said she was terminated because her job as a housekeeper required that she be around cleaning products, which was unsafe for her baby. Whether this was truly the reason, or if they terminated her in anticipation of her missing work once the baby was born, is irrelevant. A woman cannot be fired because she is pregnant.

The Americans with Disabilities Act was passed in 1990 to protect those with disabilities from being discriminated against in employment, housing, and public services. Title I of the act covers workplace disability discrimination. A case filed by the EEOC on December 4, 2012, involves an employee who had a prosthetic leg. She was assigned to a temporary job by a placement agency in Illinois. Her job was to inspect or package electronics for shipping. While she was working on her second day, she was told that she was being removed from the position because the employer was afraid someone would bump into her. The placement agency promised to find her something else where she could sit down and work. She was never contacted about another job, so she filed a complaint with the EEOC. After trying to negotiate a settlement, the EEOC filed a lawsuit against both the placement agency and the electronics company. In the press release, the EEOC states, “Firing employees because of baseless fears and stereotypes about their disabilities is illegal, and the EEOC will defend the victims of such unlawful conduct.”
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Epilepsy affects approximately two million Americans to varying degrees. It is a neurological condition that causes people to have seizures. Some can control their epilepsy with medication and avoid having seizures for years, while others continue to have seizures even while medicated. Special caution may need to be taken in certain situations by those who have frequent seizures, but no one should have to give up living or working because of this condition. Two companies recently settled lawsuits that addressed the need to make accommodations for potential and current employees with this particular disability.

A Missouri man applied at Tyson Foods, a meat processing company, for a maintenance position. The man had epilepsy that he had kept under control with medication for 12 years. During this period he had even been employed twice by Tyson. When he applied the third time however, he was denied a position without even being examined by a physician because of a new medical evaluation process put in place by Tyson. The applicant felt he had been discriminated against because of his disability and contacted the Equal Employment Opportunity Commission (EEOC), which agreed with him.

The EEOC filed an employment discrimination lawsuit against Tyson on the man’s behalf in May 2010. Tyson and the EEOC settled the lawsuit, with Tyson agreeing to pay the man $35,000 and promising to make some changes to their policies. Now, if an applicant at Tyson fails a medical assessment, he can have second and third assessments done at his own expense. Tyson will also provide training for those doing the assessments, will post notices regarding discrimination for its employees, and will report to the EEOC regarding its compliance.
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1125238_forklift_1.jpgCharles Goods was hired by Walmart in Greenville Tennessee in 1997 to work at a warehouse as a forklift operator. After being diagnosed with thyroid cancer, he had surgery, during which some of the nerves in his right shoulder were severed. This resulted in permanent loss of strength and feeling in his right arm, making it difficult if not impossible to lift with that arm. Mr. Goods returned to work after the surgery and continued to successfully fulfill his job requirements until 2008. That year, a supervisor asked him to fill in during a co-worker’s 20-minute break. The co-worker’s job required lifting and Mr. Goods informed the supervisor that he could not comply.

At the supervisor’s direction, he filed a request for reasonable accommodation, which informs the employer of the disability and is supposed to initiate a conversation between the employer and employee regarding the nature of the disability and what steps need to be taken to accommodate the employee. Mr. Goods included the fact that he had been successfully fulfilling his job requirements for the duration of his employment, including the three years after the surgery that caused his condition. According to the complaint filed by the Equal Employment Opportunity Commission (EEOC), Walmart did not discuss anything with Mr. Goods, but rather placed him on leave for 90 days and was ultimately told to find another position that did not require manual lifting. Six months later, after filing a discrimination charge, he was terminated by Walmart.

According to the Americans with Disabilities Act of 1990 and the amendments passed in 2008 in the Americans with Disabilities Amendments Act, it is unlawful to deny an employee reasonable accommodation and to retaliate against an employee for filing a discrimination lawsuit. According to the EEOC, Walmart failed to comply with both of these items, and filed a civil suit in 2010 on behalf of Mr. Goods.

In December 2011, Walmart settled with Mr. Goods. He was awarded $110,000 for wages lost in 2009 and 2010 and $165,000 in compensatory damages. Compensatory damages in this case most likely included additional loss of income and emotional distress. This type of damages is meant only to return the plaintiff to the place he was before the incident, not to punish the defendant. According the EECO, the following terms were also included in the settlement:

“In addition to the monetary relief, the 18-month consent decree settling the suit enjoins Wal-Mart’s distribution center #6039 from further failing to provide reasonable accommodation, absent undue hardship, or following proper procedures for handling such requests per the ADA and ADAAA. In addition, the decree requires that Wal-Mart provide anti-disability discrimination training to its management staff; maintain records of any accommodation requests and furnish them to the EEOC; and post a notice to employees about the lawsuit that includes the EEOC’s contact information. Wal-Mart has revised and amended its accommodation policy, which it distributed to all employees, to address accommodation issues.”

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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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The separation of church and state has always been a tough subject. While the topic does not relate to the majority of us in regards to employment issues, it can affect anyone employed by a church, religious school, or other religious institution.

“Ministerial exception” is a doctrine that was put in place to allow religious institutions the ability to hire individuals that they feel are most qualified to minister to their followers without government intervention. For example, a Lutheran church cannot be sued for discrimination for failing to hire a rabbi for a religious leadership position within the church. However, the subject becomes more unclear when it is applied to other positions within a religious institution.

In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a fourth-grade teacher at the religious school was terminated after several months of not being able to work due to undiagnosed narcolepsy. After she was diagnosed, her doctors cleared her to return to work with the appropriate medication. The school was concerned about her ability to perform her teaching duties and asked her to leave the school voluntarily and waive her disability. She refused, threatening legal action if she was not reinstated, and she was fired.

Ms. Perich, the dismissed teacher, contacted the Equal Employment Opportunity Commission (EEOC) and filed a wrongful termination suit under the Americans with Disabilities Act. The district court dismissed the case, stating Ms. Perich was included under the ministerial exception because she taught at a religious school. Ms. Perich and the EEOC appealed, stating that only 45 minutes of her 7-hour days were spent in religious activity; the rest of her work was secular. They won the appeal, and the case is headed to the Supreme Court.
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Kentucky employment lawyers are interested to read the Equal Employment Opportunity Commission released its Work Force Report on July 26, 2010. This report reviews work statistics about the federal workforce.

Some of their findings included some slight changes to the work force over the last ten years. A few of these changes included:

  • The number of women in the federal work force increased from 42.3% to 44.06%
  • The number of Hispanic/Latinos in the federal work force rose from 6.81% to 7.9%
  • The number of Asian Americans in the federal work force rose from 5.22 to 5.84%
  • Also, the total number of people in the federal workforce increased by 15.09%

What is particularly striking about the report is that 16,947 complaints were filed with the EEOC in the 2009 fiscal year. Of those complaints, in only 2.98% of the cases did the EEOC investigations result in findings of discrimination. At the same time, approximately 21% of the complaints resolved in early settlements.

If you are a federal employee who feels that you have been treated unfairly, you should contact an experienced attorney to learn more about your rights.

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The Americans with Disabilities Act 42 U.S.C. Sec 12102, et seq. (ADA) was first enacted in 1990 prohibiting discrimination against people with disabilities in employment (Title I),
in public services (Title II), in public accommodations (Title III) and in telecommunications
(Title IV). 

After its enactment however, United Stated Supreme Court cases significantly limited the ADA’s effectiveness in prohibiting discrimination based on disabilities.  Based on narrow court interpretations of the ADA, the ADA Amendments Act of 2008 was signed into law on September 25, 2008 to make the ADA consistent with its original intent of “providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and to “provide broad coverage.” 

wheelchair sign.jpgSeveral changes in the ADA as a result of the new Amendment are discussed below. 

One of the largest changes made by the ADA Amendments was to the definition of a “disability” under the ADA.  In Sutton v. United Air Lines Inc. (1999), the Supreme court held that in order to determine whether an impairment was a “disability” under the ADA, consideration must be given to mitigating measures available.  Mitigating measures could include a variety of items such as medication, equipment, prosthetics, mobility devices, hearing aids, and glasses.  When taking into consideration these mitigating measures, many impairments were not considered to substantially limit a major life activity and thus were not considered disabilities under the ADA. 

The ADA Amendments state that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an employee has a disability for purposes of the ADA. 

Other changes made to the ADA include:

  • expanding the definition of “major life activities”
  • clarification that an impairment that is in remission or episodic still qualifies as a disability if it would substantially limit a major life activity when active
  • changing the definition of “regarded as” to no longer requiring the impairment to substantially limit a major life activity

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