Employee Rights Short Takes: Wage Discrimination, Paternity Leave, Disability Discrimination And More

Here are a few employee rights Short Takes worth noting:

It's A First: Major League Baseball Player Takes Paternity Leave

National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.

New Rules For The Americans With Disabilities Act

New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24th. The new rules were mandated by the ADA Amendments Act of 2008 ("ADAAA"). The law made significant changes with respect to the interpretation of  the term "disability" under the Americans with Disabilities Act.

Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed "disability" and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage.  As legal commentator noted:

The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.

The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.

Discrimination Lawsuit Raises Issue Of Who Is A Man

I ran across this very interesting story in the NY Times  about a recently filed discrimination case and it's worth talking about because it will make new law. The case is about  El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male. 

The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden.  His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau's second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.

Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.

New Jersey is one of 12 states that ban discrimination based on transgender status.  The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.

In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances.  (for more about the BFOQ exception, see here)

This groundbreaking case will certainly be an interesting one to follow.

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.

Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 -- Equal Pay Day -- to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.

Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.

Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit.  After the U.S. Supreme Court ruled against her in 2007 -- because it held that the case was filed too late -- Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009  by President Obama – but it didn’t go far enough.

Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.

The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.

It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today.  For more, read here.

images: blogs.orlandosentinel.com  image.spreadshirt.com www.glbtq.comf

Employee Fired Because Of Depression Wins Right To Jury Trial

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.

Quoting from the landmark case of School Board of Nassau v. Arline which interpreted the "regarded as" language in the Federal Rehabilitation Act, it noted:

Although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling.

By including ‘regarded as’ in the Rehabilitation Act ‘Congress acknowledged that society’s myths and fears about disabilities and about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.

Therefore, if an individual can show that an employer or other covered entity made an employment decision because of a perception of disability based on “myth, fear or stereotype, the individual will satisfy the regarded as part of of the definition of disability.

In Lizotte’s case, the defendants:

  • were aware that he was being treated for depression
  • knew he had attempted suicide the night of November 30th and was hospitalized for several days after the event
  • were “blown away” that he was released from the psychiatric unit after only 4 days
  • perceived Lizotte’s mental impairment (mood disorder according to his doctor) to be much more restrictive than described by his doctor
  • inaccurately believed:

          1. that he could not work

          2. suffered from a condition that made him potentially violent at work

The Court stated:

There is undisputed evidence that Lizotte was terminated on December 14, 2006 because of the Defendants' concerns about 'safety,' reputation,'customer acceptance,' 'liability,' and a desire to protect the bank's image in Minot.

The EEOC regulations and case law explicitly state that such 'attitudinal barriers' may reflect a perception of disability based on 'myth,fear or stereotype' and that this is a scenario the ADA is designed to guard against........

The Bank Defendants' "Legitimate Reasons" For Termination And Proof Of "Pretext"

Bank officials stated that it terminated Lizotte because of three concerns:

  1. the safety of its employees and customers
  2. its reputation in the community
  3. its reputation with its employees

The record however, did not support those justifications -- and certainly not as a matter of law. For example, as the the Court noted, the evidence showed:

  • the suicide incident was not well known in Minot or among other bank employees
  • no adverse business results occurred in the two weeks between the suicide attempt and Lizotte's termination
  • no employee said he or she couldn't work with Lizotte
  • there was no financial impact on the bank
  • no customers pulled their accounts nor asked to be transferred to a different loan officer

As stated by the Court:

There may have been legitimate, non-discriminatory reason(s) to terminate Lizotte in December 2006, but there are certainly inferences that can be drawn from the evidence presented that the bank acted on the basis of myth, fear,or stereotype, and that Lizotte's perceived mental impairment was the reason for the termination.  ...

The ADA does not require that Dacotah bank officials to put its staff and the general public at risk by employing an individual who poses a direct threat to others.

But the ADA does require the bank to provide due consideration to an individual they arguably may have 'regarded as' having a mental impairment and who may be able, with reasonable accommodation, to perform his work productively and safely. ....

There is conflicting evidence as to whether the employment decisions were made because of a perception of a disability .... that warrant a jury trial and preclude the granting of partial summary judgment on the ADA claims.

Lessons To Be Leaned

According to the National Institute for Mental Health, mental disorders are common in the United States.  An estimated 26.2 percent of Americans ages 18 and older — about one in four adults — suffer from a diagnosable mental disorder in a given year. That's over 70 million people.

Therefore, millions of people with depression and other mental disorders may be exposed to employment discrimination because of a disability which can and should be accommodated.

This case is a perfect example of what can happen when misconceptions about depression and other mental impairments can result in an illegal discharge under the Americans with Disabilities Act.

images: www.lipseys.com


*Reprinted from Westlaw with permission of Thomson Reuters. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.


Cancer Victim Wins Discrimination Case

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.

Merchandise Must be Accessible to Disabled

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

Doctor Who Fails to Provide Patient with Interpreter Gets Whacked

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