Employee Rights Post : Ellen Simon's Employee Rights Post : Employment Lawyer & Attorney : Workplace Discrimination & Harassment Advice & Consultations

Claims Of Gender, Race, Disability And National Origin Discrimination By Transportation Authorities

Earlier this month, a group of female and Hispanic Massachusetts Bay Transportation Authority (MBTA) employees filed a class action complaint with the Massachusetts Commission Against Discrimination alleging that women and Hispanic workers were "pigeonholed in entry-level positions and grossly underpaid compared to non-Latino and male counterparts.

One day later, a federal class action was filed alleging that  racism and sexism "pervade the culture" of the Chicago Department of Transportation which includes referring to black employees as "Mambo Gorilla," "nigger," and segregating minority employees by assigning them to work only on the city's "gang-infested" South Side.

Last Thursday ,the Los Angeles County Metropolitan Transportation Authority  reached a settlement agreement resolving a class action lawsuit in Los Angeles County Superior Court.

The lawsuit alleged disability discrimination against visually-impaired Metro bus passengers by:

• failing to announce stops on buses
  
• failing to stop and pick up visually-impaired passengers
  
• failing to provide schedule and route information in accessible formats
  
• failing to make its public website accessible with screen-readers commonly used by the visually-impaired.

For more information about the settlement, look here.

Unfortunately, discrimination of all kinds in the government transportation business seems to be out of control.

 images:website.lineone.net

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Banker Terminated When "Regarded As Disabled" And Because Of Perceived Mental Impairment Has ADA Claim

Disability claims involving mental impairments can be tough. That’s why this recent case from a federal district court in the Eight Circuit is an important and helpful read. Here’s what happened in the case of Lizotte v. Dacotah Bank.*

Facts Of The Case

Alfred Lizotte was an assistant vice president of commercial lending at Dacotah Bank where he had been employed since 2003.

On Thursday, November 30, 2006 Lizotte consumed somewhere between 10-12 drinks at a local bar. On his way home, “and for whatever reason”, he decided he “had enough of this shit”, drove to a cemetery, took a gun out of his backseat, and called his sister.

When his sister arrived at the cemetery, he told her that he “didn’t want to be here anymore.” She unsuccessfully struggled to get the gun and called the police.

Lizotte drove away, was stopped by the police, and taken into custody. He was involuntarily committed to a psychiatric inpatient unit for four days following the incident. 

On December 1, 2006 Lizotte called his immediate supervisor and told him that he was unable to come to work. On December 5, 2006 Lizotte’s physician faxed a Dacotah Bank “Certification of Health Care Provider” form indicating that Lizotte could return to full work duties in a week.

On December 8, 2006 the HR director (Bobby Compton) sent Lizotte a letter stating: “Because of the impact of your action in the community, and the ability to perform your job, we are placing you on Leave of Absence to allow us to review the information and consider the issue.”

On December 14, 2006 Lizette met with Compton and two officers of the bank. He was given a letter to sign which said that it was his last day of employment. In exchange for signing the letter he got $6,500.00 in severance pay. Lizette unwillingly signed the letter and thereafter received a “Notification of Employee” resignation form which he refused to sign.

The Lawsuit

Several months later, Lizotte filed a lawsuit in federal district court in North Dakota alleging discrimination under the Americans with Disabilities Act (“ADA”). The complaint also asserted several state law claims.

ADA: What’s The Law?

The Americans with Disabilities Act  law is quite complicated but here it is in a nutshell.

In order for an employee to establish a prima facie case under the ADA, he must show he:

1. is disabled within the meaning of the ADA
2. is qualified to perform the essential functions of the job with or without reasonable accommodation, AND
3. suffered an adverse employment action because of his disability

The ADA defines disability as:

1. a physical or mental impairment that substantially limits one or more major life activities OR
2. a record of such impairment OR
3. being regarded as having such impairment

If a plaintiff establishes all of those elements, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the discharge.

If the employer establishes a legitimate reason for the discharge, the burden shifts back to the plaintiff to show that the reason given by the employer is a pretext for discrimination --- meaning that it’s a “phony excuse.”

The bottom line is after jumping through all of these hoops, there must be evidence from which a jury could reasonably conclude that the individual’s disability “was a factor in the employment decision at the moment it was made.”
The Court's Opinion In The Case

Regarded As Disabled

The bank argued that Lizotte’s claim should be dismissed as a matter of law because he did not have a disability as defined by the ADA.

Lizotte contended that he met the definition of disability because Defendants regarded him as disabled and mistakenly  believed that his mental disorder substantially limited the major life activity of working .

The Court agreed with Lizotte.

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Judgment For Employee Due To Employer's Failure To Accommodate  

I don’t remember ever reading a case quite like this one. The facts are quite graphic so be prepared. The story revolves around an incident of a store’s failure to accommodate a disability which led to a tragic result.

What Happened In The Case

A woman identified only as A.M. came to America in 1981 from El Salvidor after civil war broke out. She started working at Albertsons in 1987. She worked in various jobs, but at the time of the incident giving rise to the case, she was working as a checker. 

In 2003, A.M. underwent chemotherapy and radiation for cancer of the tonsils and larynx. The treatment affected her salivary glands which caused her to drink large volumes of water and urinate repeatedly.

While at work, A.M. was required to have water with her at all times and needed to go to the bathroom frequently -- sometimes as often as every 45 minutes.

Most managers accommodated her but on the evening of February 11, 2005, A.M. encountered a horrific problem.

She worked a shift that day which began at 1:00 p.m. and was scheduled to end at 10:00 p.m.

By 7:00 p.m. there were only three employees in the store – A.M. who was working as checker, another woman who acted as courtesy clerk (and was not allowed to relieve a checker), and Kellie Sampson – the person in charge.

At 8:00 that evening, A.M. told Sampson that she needed take a break. Sampson asked A.M. to wait because a delivery truck was coming

Some time later, A.M., who had a line of customers waiting to check out, called  Sampson and told her again that she needed to go to the bathroom. Sampson told her that she was unloading the merchandise and that she had to wait.

About 10 minutes later, A.M. still had customers in the line. She called Sampson once more and told her that she really had to go. Sampson said that she was busy and unable to come to the front of the store.

Unable to control herself, A.M. urinated while standing at the checkout stand. She was having her menstrual cycle, and so she was drenched with both urine and blood.

Understandably, A.M. was shaky and humiliated though she did not think the customers saw what happened. When Sampson finally got to the front of the store, A.M. went into the bathroom to clean herself.

Sobbing, she called her husband to tell him what happened. A customer observed her crying, asked what was wrong, and A.M. explained that she had wet herself because no one let her go to the bathroom.

The customer helped her to her car. She had a horrible drive home and thought about killing herself.

When she got home, still nervous and crying, she took a long shower and tried to scrub the smell off her. She wouldn’t get out of the shower and her husband had to remove her.

After that, she was unable to return to work and began to deteriorate psychologically. She became listless and withdrawn. She refused to see family and friends. She feared that people would be able to smell the bad odor she sensed about herself.

She had crazy dreams and couldn’t sleep. Each day, she took multiple showers to try and remove bad smells from her body. She shaved off all of her body hair, hoping that the bad smell would go away.

Eventually A.M. told a doctor that had thoughts about killing herself. She was committed to a psychiatric hospital for several days.

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New ADA Regulations Will Bring Necessary Change

I received a call from a reporter from MSNBC a few days ago. She indicated that she wanted to ask me some questions about the new Americans with Disabilities Act regulations recently put out by the EEOC.

The interview caused me to reflect on just how important the amendments to the ADA are --along with the new regulations --- and the struggle we have gone through to get here.

When the ADA was written, I remember being at a meeting in Cleveland with a group of employment lawyers which was sponsored by a committee of the American Bar Association. The guest speaker was a lawyer from D.C. and he was there to talk to us about the new legislation and give us a preview.

I remember listening to and reading all of these complex, confusing terms and thinking “this is going to result in tons of litigation and be a big nightmare." I walked out of the meeting and talked about my deep concern with some friends and colleagues from both sides of the bar.

We all seemed to reach the same conclusion – that this was going to be an ugly litigation mess -- and though we saw the handwriting on the wall, there was nothing we could do about it. The ADA was written and this is what it was going to say.

And indeed what our group of experienced employment lawyers predicted that day in 1990 turned out to be true. While the intent of the ADA was certainly noble, the way in which it was written has caused nothing but problems.

What’s more important is that the problems with the ADA have had a terrible negative effect on those individuals who were supposed to be protected by the legislation.

The ADA was intended to protect individuals with disabilities from discrimination. Because of the way in which the Act was written, combined with the way in which it has been interpreted by an exceedingly conservative federal judiciary, most cases got thrown out on summary judgment because the courts determined that the individual plaintiff employee was not disabled.

If he/she was not disabled, then he/she was not protected by the ADA from disability discrimination, and so they lost. Here’s an example of what I mean.  

A secretary gets fired for going to chemotherapy. We file a case of disability discrimination. The employer argues that cancer is not a disability as defined by the Act. The judge buys the argument and the case gets thrown out. (based on a true story)

That scenario occurred thousands and thousands of times. Employees with disabilities were getting fired, or not hired in the first place, or passed over for promotions – and the cases were thrown out of court because the employers argued that the person was not disabled so the ADA did not apply.

Those rejected included people with AIDS, people with cancer, people with MS, people with epilepsy, diabetes, with prosthetic devices and the list goes on and on.

As a consequence,  those of us who tried to represent these folks never even got to the stage of the case in which we had a chance to prove discrimination.

As I explained to the MSNBC reporter, in other discrimination lawsuits such as age, race, or gender discrimination cases, we don’t have a fight about whether the client is a woman, or over 40, or black.

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Employee With MS Wins Appeal In Seventh Circuit "Regarded As" Disability Decision

A case was decided by the Seventh Circuit Court of Appeals last week that was an important victory for the employee as well as his lawyers.

In Brunker v. Schwan’s Home Service, Inc. the Court reversed judgment in favor of Schwan’s on Brunker’s disability claim. It also reversed the lower court’s testy imposition of sanctions against Brunker’s lawyers.

What Happened In The Case.

Frank Brunker worked as a delivery driver for Schwan’s delivering frozen food to its customers. In February of 2003, Brunker started experiencing shaking of his hands, slurred speech, dizziness, light headedness, and headaches.

The symptoms continued, Brunker went to the doctor, tests were taken, and Brunker was told that he might have multiple sclerosis.

Brunker went on disability leave for two months. Eventually, he went back to light duty work, and then back to work without any restrictions by his physician. He performed his job and was able to complete his route in the same manner as he had in the past.

Four months later, Brunker told his supervisor that he wanted to go to the Mayo Clinic for some tests. Around the same time, he stared to get written up for various performance issues.

When Brunker returned two weeks later, after being diagnosed with multiple sclerosis, his supervisor fired him citing “unsatisfactory performance” and "unable to perform essential job functions” on the termination form.

(Notably, Brunker’s supervisor backdated the termination form to September 9, the day Brunker left for the clinic and before his diagnosis of multiple sclerosis.)

Brunker filed a claim in federal court for disability discrimination under the Americans With Disabilities Act. The lower court (N.D. Indiana) threw out the case and in an unusual move, sanctioned Brunker’s lawyers because of their discovery requests (attempts to get evidence to prove their case).

The Seventh Circuit Reverses

It would be tempting to go in to all of the reasons why the lower court’s opinion was just flat out wrong, but some of them don’t matter anymore since the Americans With Disabilities Act was amended to prevent precisely this result.

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There was an interesting piece by Catherine Moreton Gray which reported Peggy Mastroianni's (associate legal counsel for the EEOC)  talk at the Society for Human Resource Managers Employment Law and Legislative Conference  in Washington last week. In that discussion, Mastroianni outlined the Commission's top priorities for 2009.

Here's what she listed:  

Enforcement of the Lilly Ledbetter Fair Pay Act: The EEOC will look closely at complaints it dismissed since May 27, 2007, the effective date of the Act to see if reinstatement is appropriate.  She said that the agency did not expect a surge in wage claims as a result of the new law.  It will be interesting to see if her prediction is correct.

GINA:  I wrote a post about the Genetic Information Non Discrimination Act in February.  In short, GINA prohibits the use of  genetic tests concerning an employee's own or family's medical history to make an employment decision.The EEOC is in the process of formulating regulations for enforcement of the Act.  There will be more to come about this law once the regulations are published.

ADA Amendments Act (ADAA):  The EEOC is working on proposed regulations for the ADAA. The big change of course is that the definition of the term disability will be construed broadly so that more people will be covered by the Act consistent with the Act's original intent. Mitigating measures, such as medications or prosthetic devices, can't be considered for purposes of determining whether a person is disabled.

I attended a Society for Human Resource Management Conference a couple of months ago.  The panel of management lawyers from the large firms all agreed on the advice to the HR manager attendees:  "treat everyone as disabled and accommodate." 

This is a good thing and it's about time.  According to Gray's article, one of  Mastroianni's remarks about the new amendments:  "employer's doing the reasonable thing won't have to make any changes."  We'll see.

Religious Discrimination:  I thought this discussion was  very interesting,  Three areas mentioned were:

1. Scheduling cases: While an employer is not required to make other employees swap shifts to accommodate scheduling around religious observances, they can't interfere with employees switching on a volunteer basis
2. Muslim prayer breaks:  Observant Muslims are required to pray five times a day. Employers may need to stagger breaks to accommodate this request so long as it does not pose an undue hardship on the business. This apparently has been a problem.
3. Modifying duties: If pharmacists do not want to fill prescriptions for contraceptives on religious grounds, the employer may  have to accommodate and pass the prescription on to another pharmacist. Again, this is a story we have heard about, and it's good to see that the EEOC is tackling it.

We'll be talking more about these topics as the regulations and new cases get reported.

Image: www.theaccidentalitleader.com

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Three cheers for the Third Circuit Court of Appeals. In Eshelman v. Agere Systems, Inc., the Court issued a much needed opinion in favor of a cancer victim under the American with Disabilities Act . 

While it might seem obvious to some that discriminating against people who have cancer is against the law, it’s not all that obvious to most courts.

I represented a woman named Christine Hood several years back who was fired for going to chemotherapy treatments. Though it sounds outrageous to most, both the trial court and the court of appeals threw out the case finding that Chris was not protected under the law (the Ohio anti-discrimination statute).

The case, Hood v. Diamond Products, Inc. went all  the way to the Ohio Supreme Court which ultimately found that yes indeed, "cancer could be considered a handicap."  The decision allowed Ms. Hood to have her day in court and proceed with her claim (it took ten years). So while it saddened me to see that cancer victims are still fighting for their right to be protected from discrimination, it warmed my heart to read about this recent victory. 

Joan Eshelman was a twenty year employee diagnosed with and treated for breast cancer. As a side effect of her chemotherapy Eshelman suffered  a cognitive dysfunction resulting in short term memory loss.To compensate, she carried a notebook  and also made arrangements for help with appointments which required driving.

With these adjustments, the parties agreed that she excelled at her job and she continued to receive outstanding performance evaluations. In spite of her strong record, Eshelman was selected for layoff  during a company restructuring in 2001.

Eshelman sued under the American with Disabilities Act. She didn’t allege that she was disabled, but instead claimed that she  was terminated  based on her employer’s belief that she was disabled, or because of her record of disability. The jury found in her favor and awarded $170,000 in back pay and $30,000 in compensatory damages in 2005. On appeal, the Third Circuit affirmed the verdict on January 30,2009.

Because Bailey's testimony afforded the jury a sufficient basis to conclude that Agere slated Eshelman for termination based on its perception -- whether accurate or not -- that her cancer-related memory problems rendered her unfit for any job . . . we must not disturb the verdict insofar as it is based on  a "regarded as" disabled theory.

Even though laws prohibiting disability discrimination have been around since 1974, it’s still really tough for cancer victims to fight prejudice in the workplace. The New York Times reported today that cancer surviviors are 37 percent more likely to be unemployed than healthy peers. That’s why this new Third Circuit decision is such an important case. People with cancer are often discriminated against but are unable to meet the requirement of permanent disability under the ADA and a result their cases are often dismissed. The ADA prohibits discrimination of those “regarded as” having a disability, or having “a record of” a disability in addition to those individuals who are actually disabled.

This case sets forth a clear and well reasoned decision for cancer victims seeking to challenge discriminatory employment decisions which affect their lives. The new ADA amendments should also help.

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There was an interesting decision recently which affected the rights of the disabled: Californians for Disability Rights v. Mervyn's,LLC , that didn’t get the attention it deserved.   

An organization representing disabled individuals (Californians for Disability Rights) sued a retailer  (Mervyn's) claiming that its store violated the American with Disabilities Act and California state law. Disabled shoppers, the suit claimed, were unable to reach the merchandise because of the narrow pathways and the way in which the merchandise was displayed.

The Court of Appeals held that since a retail store was a place of public accommodation under the ADA, the store was required to remove architectural barriers and make its goods and services available to the disabled. The Court also noted that the store failed to provide adequate customer service as an alternative method of making the merchandise accessible.

According to Sid Wolinsky, one of the lawyers for the advocacy group representing the plaintiffs, as reported in the San Francisco Chronicle last July:

"It means that every retail establishment that is newly built or substantially remodeled in the last 15 years - from 1993 on, the date of the Americans with Disability Act - must comply with regular building standards," said Wolinsky. "They have to provide accessible aisles.'"

While Mervin's said that this decision might force it to close stores and announced bankruptcy the day before the ruling,  this is nevertheless an important decision for disabled Americans and one that all retailers need to pay attention to.

Image: http://erachelboardandcare.org/yahoo_site_admin/assets/images/Wheelchair_symbol.262170947_std.gif

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Doctors and hospitals got a sharp reminder about their need to provide interpreters for hearing impaired patients. 

A  Hudson County New Jersey jury awarded $400,000 to Irma Gerena who claimed that she was unable to participate in and understand her medical condition in violation of the Americans with Disabilities Act and the New Jersey Law Against Discrimination when her physician,  Dr. Robert Fogari, failed to provide her with an interpreter.The verdict was reported in the New Jersey Law Journal last October.

According to the story, the plaintiff Irma Gerena was being treated for lupus. During the multiple office visits with her rheumatologis, Gerena, who had limited English skills and was deaf, claimed that she was unable to understand what her doctor was doing including :

• the treatment she was receiving,
• its risks or benefits,  and
• what alternative approaches may have been available.

Gerena repeatedly requested an American Sign Language interpreter and gave Dr. Fogari an interpreter’s business card. She also had the interpreter call the doctor and explain the law to him.

Dr. Fogari claimed that he could not afford the interpreter’s charge of $150 to $200 and hour since he was only being reimbursed $49 per visit Gerena’s medical insurer. The jury sided with Gerena.

A previous New Jersey decision Borngesser v. Jersey Shore Medical Center held that the law’s requirement of “auxiliary aids and services " meant that "interpreters, video displays and note takers" may be necessary for “effective communication” during critical points of a patient’s care.

Doctors and hospitals need to be prepared to provide interpreters and patients need to be educated as to their rights to request them. The law provides that patients with severe hearing impairments should not be precluded from understanding and participating in their medical care and treatment as a result of their disability. 

Physicians who recklessly disregard the law or retaliate in the face of a patent's request may face a stiff penalty. Of the $400,000 jury award to Gerena, $200,000 was for punitive damages -- so doctors beware -- there's more to come.

Image: http://digestive.niddk.nih.gov/ddiseases/pubs/ibs_ez/images/drnpatient.jpg

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