Nadine

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

A Wendy’s Franchisee was recently sued by the EEOC for discriminating on the basis of disability when the General Manager refused to hire an applicant with a hearing impairment even though he was qualified and had experience for the job as a cook.

Following a successful interview with the Wendy’s shift manager, the applicant attempted to complete the interview process by interviewing with Wendy’s General Manager via the Relay Service, a telephone system used by people with hearing impairments to communicate with people who can hear. During the call he was told by the General Manager that “there is really no place for someone we cannot communicate with.”

The regional attorney for EEOC said, “In these tough economic times, opportunities for employment are at a premium…the applicant had the work experience necessary to do the job and was prepared to contribute his solid work ethic and skills again to the food retail business, but was denied the chance to do so on irrelevant and unlawful grounds.”

The EEOC not only seeks injunctive relief, including the formulation of policies to prevent and correct disability discrimination but also seeks lost wages and compensatory damages for the applicant and punitive damages against Wendy’s.

The ADA requires companies to treat people with disabilities the same as all other applicants for a job. When companies automatically refused to consider applicants for employment solely because of their disabilities, they violate the law. Employers who rely on their own negative, generalized assumptions about disability (in this case, the applicant’s ability to communicate) increase their risk for acting in a discriminatory manner.

Review your hiring policies and make sure all employees with hiring responsibilities know the law. If you have questions about how to mitigate your risk, contact Springboard for assistance.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

Major airlines, all too frequently, find themselves facing charges of disability discrimination. And now, Frontier Airlines joins them with a recent fine of $50,000 for violating the ACAA. Denver-based Frontier operates flights to and from Ft. Lauderdale-Hollywood International Airport.

A passenger, who couldn’t use his arms, legs or torso, and was unable to sit upright without support & restraint (quadriplegia), wasn’t told that FAA rules prohibit the use of seat belt extenders as restraint devices for the upper body. Frontier not only failed to notify the passenger of the FAA rule in advance of his return on a round-trip ticket, but had allowed him to use the extenders on three previous flights, including his recent outbound flight. The passenger was removed from his return flight because he didn’t have an alternative restraint method so he could sit upright.

Frontier also failed to provide the passenger with adequate pre-boarding assistance as well as with help getting on and off the plane despite receiving notice that assistance would be needed prior to his flight.

The ACAA is very clear that airlines are required to provide assistance to passengers with disabilities while boarding & deplaning aircraft, including the use of wheelchairs, ramps, mechanical lifts and service personnel when needed.

In January, Miramar-based Spirit Airlines was fined $100,000 for violating similar DOT rules protecting air travelers with disabilities. In Spirit’s case, the carrier did not appropriately record and respond to complaints in 2009 and 2010 about its treatment of passengers with disabilities.

Passengers with disabilities are customers of the airlines…and customers with disabilities means business. In fact, spending by travelers with disabilities exceeds $13.6 billion annually. Airlines cannot afford to ignore this growing segment of people worldwide. Education and effective training for all employees, regardless of their industry, is key to broadening a business’s customer base in order to bring about a sustainable competitive advantage.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

Signals and traffic crossings owned by a city, state or county are obligated by the Americans with Disabilities Act to make the visual elements accessible to people that can’t see.

The prototype of the product will be tested in Golden Valley, Minn., beginning in late March or early April. I think this is really cool and cannot wait to hear more.

Nadine

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

According to the EEOC’s suit, the Company failed to accommodate the disability of an employee with chronic lumbar back pain with radiculopathy (not a specific condition, but rather a description of a problem in which one or more nerves are affected and do not work properly neuropathy) into her legs. Further, the EEOC said, that the Company held the employee to different terms and conditions of employment and then fired her based on her disability. The EEOC seeks back pay as well as compensatory and punitive damages for the employee and injunctive relief against the company.

According to the Bureau of Labor Statistics, back injuries account for nearly half of all musculoskeletal disorders in the workplace (BLS, 2010).

The ADA does not contain a list of medical conditions that constitute disabilities. Instead, the ADA has a general definition of disability that each person must meet. Therefore, some people with back impairments will have a disability under the ADA and some will not.

Employers, however, should focus on what can be reasonably done to remove barriers to employment so that the employee can continue doing their job rather than spending their time deciding if someone meets the definition of disability. Many accommodations exist and should be explored with the employee to answer the following questions:

1. What limitations is the employee with a back impairment experiencing?
2. How do these limitations affect the employee and the employee’s job performance?
3. What specific job tasks are problematic as a result of these limitations?
4. What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?

Once accommodations are in place, it can be useful to meet with the employee with a back impairment to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed. If after a reasonable time has passed and the employee still can’t do their job to the same standards held by other employees doing the same job, then there may be grounds for lawful termination.

Make sure your supervisory personnel and employees receive adequate training regarding back impairments and ways to accommodate company employees. And remember, Springboard can help you deliver training that meets your company’s needs.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

Nadine

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

Although not legally required to disclose his hidden disability, he decided to tell his boss about his condition because he thought it would be safer to let them know in case he had to leave early to see a doctor. The company said they didn’t have a problem with it. He thrived in his job, won an achievement award and was promoted to store manager.

As time went on, symptoms of his disability increased and he eventually had a breakdown. He had never missed a day of work and for the first time, called in sick. His boss told him there was no one to cover the store and he had to come in. He reluctantly did so, but requested a two-week leave. His request was denied and he was subsequently was fired.

Devastated, he filed a lawsuit with the EEOC and won. The question is, “Why was he fired?

EEOC argued that the company violated the ADA and the state’s own discrimination law (Washington Law Against Discrimination– WLAD), both of which prohibit firing an employee due to disability and prohibit adverse employment decisions motivated, even in part, by ill will toward an employee’s real or perceived disability or request for an accommodation.

This is the 1st case taken to trial by the EEOC involving someone who is bipolar. After a four-day trial, the Judge found that the company’s half-dozen different rationales for terminating this employee were simply a pretext for discrimination and awarded the employee $6,500 in back wages and $50,000 for emotional pain and suffering. The court also issued a three-year injunction, requiring The Cash Store to train its managers and human resources personnel on anti-discrimination and anti-retaliation laws.

The judge concluded that the company was motivated by a bias against people with this kind of disability after the employee had disclosed that he was bipolar, and they illegally fired him because they regarded and perceived him as disabled and unable to do his job, when the actual facts were that he had been performing his job to the standards set by the company.

The greatest barrier to employment for people with mental disabilities, such as Bipolar Disorder, are employers’ myths and fears about their condition, not the disabilities themselves. Employers really have to be really careful, especially when they don’t have solid reasons for terminating a long-term employee who is doing a good job. In the case above, the employee was successful in his job and didn’t need any type of workplace support (reasonable accommodation). The company couldn’t provide any justification (such as poor performance, despite the provision of workplace supports) for making such an adverse employment decision (termination).

Springboard conducts training for company managers and human resources personnel on anti-discrimination and anti-retaliation laws. If you would like to discuss such a program that is tailored to the needs of your company, contact Springboard.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

According to an EEOC guidance letter, “Whether an individual’s back impairment constitutes a disability depends upon the facts of the case. For example, and individual whose back impairment prevents him/her from lifting more than 15 lbs is substantially limited in the major life activity of lifting because the average person in the general population can lift 15 lbs with little or no difficulty. On the other hand, an individual whose back impairment prevents him/her from lifting more than 50 lbs is not substantially limited in the major life activity of lifting because the average person in the general population cannot lift 50 lbs with little or no difficulty. Furthermore, an individual whose back impairment does not substantially limit a major life activity may still be covered if an employer perceives him/her as being as substantially limited in a major life activity (for example, lifting or working).

If your employee has a lifting restriction, employers should talk with the employee to find out if there’s a workplace support might be available that would let the individual continue working without causing further injury. The following questions should be considered when determining if a workplace support exists:

1. What limitations is the employee with a back impairment experiencing?
2. How do these limitations affect the employee’s job performance?
3. What specific job tasks are problematic as a result of these limitations?
4. What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine accommodations?
5. Has the employee with a back impairment been consulted regarding possible accommodations?
6. Once accommodations are in place, would it be useful to meet with the employee with a back impairment to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?

If you’re not sure what type of training would your supervisors and managers need, contact Springboard to discuss a program tailored to help reduce your company’s risk when faced with employees who have lifting restrictions.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

Nadine

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.

The EEOC filed suit against AT&T Corp., a leader in telecommunication services, for its no fault attendance policy because it failed to reasonably accommodate a long-term employee’s disability and then fired her because of that disability.

According to the EEOC’s suit, an employee, who worked for AT&T Corp. as a customer service representative since 1984, requested a reasonable accommodation in the form of a finite leave of absence in order to receive interferon treatment for Hepatitis C. Without the treatment, her disease could have eventually been fatal. Upon learning of her disability and need for a leave of absence, AT&T granted her leave request.

So, the employee was on an approved, paid medical leave of absence from June 24 to Oct. 24, 2010. Her doctor determined the treatment was successful and released her to return to work without restriction. Two days later, AT&T fired her, claiming her use of approved leave to receive life-saving treatment violated its no-fault attendance policy.

This just doesn’t make sense. Where’s the disconnect? Who missed the ADA training? Didn’t anyone review the situation before the employee was fired?

EEOC said AT&T refused to provide the employee with a reasonable accommodation by exempting her leave of absence from its no-fault attendance policy. Such alleged conduct violates the ADA. The lawsuit seeks back pay, compensatory and punitive damages and reinstatement or front pay for this employee, as well as injunctive relief, including a court order prohibiting AT&T from failing to provide reasonable accommodation to disabled employees by counting absences caused by their disability as “chargeable,” or unprotected, absences under its attendance policy.

“The refusal of AT&T to make a perfectly reasonable exception to its draconian attendance policy to accommodate the known disability of an employee violated federal law as well as common sense and common decency,” said EEOC trial attorney Patrick Holman. Barbara A. Seely, regional attorney of the EEOC’s St. Louis District Office, added, “This employer’s conduct is precisely what Congress had in mind when enacting the ADA. The very essence of reasonable accommodation is making exceptions to hard-and-fast rules in circumstances like this when to do so causes no undue hardship to the employer – and failing to do so might cause grave harm. AT&T’s actions here were not only baffling, but downright cruel.”

It’s been 22 years since the ADA was signed into law. Companies are facing increased penalties for failing to comply with employment requirements of the law. If you need assistance in customizing training for your personnel OR in determining if your company’s policies might unintentionally discriminate against workers with disabilities, contact Springboard.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.