Articles Posted in Disability discrimination

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Can an employer waive the statutory limitation on liability provisions of the American with Disabilities Act (ADA) and Maine Human Rights Act (MHRA) which limits the amount an employee can recover in a lawsuit for disability discrimination?  Put more simply, can a damages cap be waived?

The Federal District Court, District of Maine answered that question in the affirmative. Damages caps can be waived if the employer fails to plead them as an affirmative defense.

On March 15, 2022, in the case Brian Bell v. O’Reilly Auto Parts, LLC., the Court denied Defendant’s Motion to Reduce the Jury’s Verdict, holding that because the employer failed to plead the statutory limitation on liability as an affirmative defense, the employer waived the damages cap provided for under both the ADA and the MHRA, leaving Mr. Bell’s $867,000 jury verdict completely intact.

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Yesterday, the First Circuit ruled in favor of the Maine Employee Rights Group’s (MERG) client Brian Bell in a disability discrimination case.  MERG attorney Allan Townsend argued to the First Circuit that the trial judge gave an erroneous jury instruction during the trial and the First Circuit agreed.  As a result, there will be a new trial in this case against O’Reilly Auto.

The trial judge gave the erroneous jury instruction when he instructed the jury on Mr. Bell’s failure-to-accommodate claim.  Both federal and state law require employers to provide disabled employees with “reasonable accommodations.”  Reasonable accommodations include things like modified schedules, medical leave, and alterations to the work environment to make it accessible.  Mr. Bell, who worked as a Store Manager, requested an adjustment to his schedule as a reasonable accommodation for his mental disabilities.  He requested the schedule adjustment because he was experiencing high levels of stress due, in large part, to the fact that he had had to work extremely long hours because his store was short staffed.

The erroneous jury instruction required MERG to prove that its client “needed an accommodation to perform the essential functions of his job.”  During the trial, Mr. Bell testified that if O’Reilly had adjusted his schedule as he requested, he would still “find a way” to work as many hours as necessary to get the job done and that he would work outside of his scheduled hours if necessary.  O’Reilly’s attorney, relying on the erroneous instruction, argued to the jury that Mr. Bell did not actually need the accommodation he requested because Mr. Bell testified that he could work as many hours as necessary.

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State and Federal laws prohibit discrimination in hiring. Illegal discrimination occurs when an employer fails to hire due to a job applicant’s age, race, national origin, religion, gender, sexual orientation, disabilities, and other protected traits. Discrimination during the hiring process can often be subtle or overlooked.  Employees should be concerned if asked questions that relate to classes protected by discrimination laws. Questions about an applicant’s disabilities, medical information, or use of medical leave may reflect discriminatory motives. If an employer asks about any medical history, or implies that they have concerns about a medical condition, this may evidence discrimination.  Hannaford Supermarkets are in the process of hiring substantial numbers of employees in the context of the pandemic.

Hannaford has reportedly hired more than 2,200 store employees since mid-March and has announced plans to hire about 2,000 more associates at stores across its five-state footprint of Maine, New Hampshire, Vermont, New York and Massachusetts according to the Portland Press Herald. As part of the hiring effort, Hannaford has indicated that it was working with major employers in the hospitality, tourism and retail fields to offer furloughed workers full- and part-time store-level job opportunities, including temporary positions. While Hannaford’s hiring binge may be good news for many, one of the questions asked of applicants is concerning. Hannaford’s application asks applicants: “Are you currently on layoff status, leave of absence or otherwise suspended from employment and subject to recall by another employer?  If “yes,” give all details.” This question means that applicants who are on legally protected medical leave may be required to disclose the leave and the reasons for taking it. To the extent that Hannaford’s question elicits information regarding employee’s protected medical leaves and related disabilities and other medical conditions this could lead to unlawful discrimination in hiring.

If you have applied for a position, that you were otherwise qualified for, and you were not offered a job after answering a question such as this, please contact Employee Rights Group for a free consultation.

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In Buffalo N.Y. a small group of nursing and health care facilities, Absolut Care LLC, will pay $465,000 to settle a pregnancy and disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

The suit charges Absolut Care with failing to accommodate disabled workers, denying leave as an accommodation, refusing to allow disabled employees to return to work with medical restrictions. Absolut Care subjected employees to unacceptable and intrusive inquiries and examinations regarding their disabilities. The suit further charges Absolut Care with terminating employees on the basis of pregnancy and completely failing to accommodate the medical restrictions of pregnant employees.

The facts as alleged in the suit reflect a clear violation of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act. Under Federal Law, employers have an affirmative duty to accommodate employees with disabilities. Medical leave may constitute a reasonable accommodation. It is illegal and unacceptable to fire an employee for using reasonable accommodations including medical leave. Prior to termination of employment, the laws require an employer to evaluate whether an employee out on an extended medical leave may be able to perform the essential functions of the job with accommodation such as additional leave or job modifications that would allow her to safely return to work.

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This week a federal judge in Connecticut held that an employer violated a medical marijuana user’s rights when it refused to hire her due to a positive drug test.  The woman uses medical marijuana, which is legal in Connecticut, to treat her post-traumatic stress disorder (PTSD).  The woman sued the employer under a state law that prohibits employment discrimination against medical marijuana users.

The employer argued that it had to refuse to hire the woman because it is a federal contractor subject to the requirements of the Drug Free Workplace Act (DFWA).  The court held that the DFWA requires employers to make a “good faith effort” to maintain a drug free workplace but it does not require drug testing.  The court also held that the DFWA does not prohibit a federal contractor from employing someone who uses illegal drugs outside of the workplace.

The employer next argued that the federal False Claims Act (FCA) prohibits it from employing someone who uses marijuana.  The court rejected this argument because no federal law prohibited the employer from employing someone who uses medical marijuana outside of work.

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medical-marijuana-300x300Last month the Maine Supreme Court struck a blow against medical marijuana users and the marijuana industry in Maine.  In the case, a worker who sustained a work-related injury received a prescription for marijuana to treat his pain.  Maine’s Workers Compensation Board ordered the employer to cover the cost of the marijuana but the Maine Supreme Court reversed that decision because, according to the Court, it conflicted with federal law.  Two Justices on the Court dissented from the decision.

The Court reasoned that if the employer was forced to pay for its employee’s medical marijuana, it would violate federal laws that still classify marijuana as a dangerous controlled substance.  Those laws prohibit anyone from “aiding and abetting” someone in possessing or selling marijuana.  The Court determined that if the employer paid for its employee’s marijuana, it would aid and abet the employee’s violation of federal law and, thus, violate the law itself.  In circumstances such as this, the Court held, federal law preempts state law and state law cannot be enforced against the employer.

The Court expressly stated that it was not deciding whether Maine’s marijuana law was entirely invalid.  The Court noted that courts in other states have held that state law protections for marijuana consumers who choose to buy marijuana are not preempted by federal law.  The Court, thus, left the issue of the validity of these consumer protections for another day.

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Last week, a federal judge held that a jury could reasonably find that Hannaford fired one of the Maine Employee Rights Group’s (MERG) clients because of his age, disabilities, and need for medical leave.  MERG’s client worked for Hannaford for over thirty years and served as the Produce Manager at the Waldoboro Hannaford store when Hannaford fired him.  At the time of his termination, he was 58 years old; suffered from heart disease, knee and back impairments, and a shoulder injury; and had repeatedly needed medical leaves due to his medical conditions.  Hannaford fired MERG’s client on the day he returned from a medical leave.

Before MERG’s client went out on medical leave, the Waldoboro store was planning to undergo a major remodel and expansion which would increase both the sales volume of the store and the stress on the store’s employees.  The store manager asked MERG’s client whether he could “handle” the stress associated with the expansion but there was evidence that he did not ask other managers in the store—who were younger and not disabled—this same question.

While MERG’s client was out on medical leave, Hannaford claims it received information indicating that MERG’s client was not complying with food safety policies relating to the preparation of cut fruit.  Hannaford launched a food safety investigation and the store manager and an associate relations manager met with MERG’s client in connection with that investigation on the day he returned from medical leave.  During this meeting, the store manager claims MERG’s client admitted that he knowingly violated food safety policy and that is why Hannaford claims it fired him.  MERG’s client denies that he admitted to violating policy and says that no one even asked him if he thought he was violating food safety policy.

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This week a Federal judge in Maine denied, in large part, Hannaford’s motion to throw out a lawsuit filed by the Maine Employee Rights Group (MERG).  MERG argued that Hannaford violated disability discrimination and medical leave laws when it refused to modify our client’s schedule.  As a result, the case is slated to go to trial later this year.

MERG’s client works as an Assistant Manager in the Meat Department of the Waterville, Maine Hannaford store.  He suffers from Lyme disease and, due to this disability, he asked Hannaford for a modified schedule as a reasonable accommodation which would allow him to start and finish work earlier in the day.  He needed this early schedule because his Lyme disease symptoms (which include fatigue, dizziness, and pain) escalate in the late afternoon.  Our client had been working this early schedule for a long time, without any problems, and then Hannaford changed his schedule to make it consistent with the schedules of Assistant Meat Department Managers in other stores.  Even though our client got a note from his doctor supporting his request for the early schedule, Hannaford denied the request.  The judge held that a reasonable fact-finder could determine that Hannaford’s denial of our client’s request violated his right to reasonable accommodations and was discriminatory under state and federal disability discrimination laws.

After Hannaford denied our client’s request to go back to his old schedule, he asked for a reduced leave schedule under the FMLA.  Under the FMLA (state and federal), eligible employees are entitled to a reduction in their hours if they need such a reduction due to a serious health condition.  Our client still thought he was entitled to start and finish work earlier, as a reasonable accommodation for his disability; but because Hannaford denied that request, he and his doctor asked Hannaford to reduce his schedule so that he would consistently finish work in the mid-afternoon.  Hannaford denied this request as well.  To add insult to injury, Hannaford also retaliated against our client for requesting a modified schedule by refusing to let him punch-in early.  The judge held that a reasonable fact-finder could determine that Hannaford violated our client’s rights under the FMLA and unlawfully retaliated against him when it refused to let him punch-in early.

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Starbucks has decided to institute company-wide training on implicit bias. The company’s decision came on the heels of an incident where Starbucks employees called the police to remove some black people from the store for doing something that white people do all the time. These black people were waiting for a friend before they bought their coffee. It is, of course, possible that conscious racism against black people motivated these employees to call the police. However, it is more likely that implicit bias, motives that people don’t think about but that cause them to act in certain ways, caused these Starbucks employees to call the police.

Psychologists have studied the phenomenon of implicit bias for decades. Pretty much everybody has an implicit bias against certain groups of people and in favor of other groups of people. For instance, regardless of how much they abhor racism, almost everyone who is not black has implicit bias against black people which unconsciously drives their actions when they interact with black people.

One of the consultants assisting Starbucks believes that companies need to implement systems where employees work together to combat implicit bias, as opposed to asking individuals to police their own biases. “Any strategy that essentially relies on people to try not to be biased is doomed to fail; that’s the heart of the problem,” said David Rock, director of the NeuroLeadership Institute. “You’ve got to shift the focus from individuals trying not to be biased to teams being able to catch bias,” he said.

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Bush_signs_in_ADA_of_1990-300x199Last week, a federal judge held that a jury could reasonably find that O’Reilly Auto violated the rights of a Maine Employee Rights Group (MERG) client when it (a) refused to provide him with a reasonable accommodation for his disabilities, (b) discriminated against him because of his disabilities, and (c) retaliated against him for requesting a reasonable accommodation for his disabilities.  Because a jury could reasonably find in favor of MERG’s client, the case will now go to trial and a jury will determine whether O’Reilly Auto violated our client’s rights under the federal Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA). 

In 2015, MERG’s client was the store manager at O’Reilly Auto’s Belfast, Maine store.  MERG’s client lives with the disabling conditions of Attention Deficit Hyperactivity Disorder (ADHD), Tourette Syndrome, and Major Depressive Disorder.  In late May and early June, 2015, MERG’s client worked abnormally long hours because he had to fill in for two employees who had been terminated.  After a couple weeks of working this abnormally long schedule, MERG’s client began to experience dizziness, severe headaches, increased frequency of his pre-existing tics, and fatigue.  On June 4, 2015, MERG’s client had a “meltdown” due to his disabilities during which he experienced a number of new symptoms, including difficulty concentrating. 

MERG’s client went to his health care provider because of this meltdown.  She gave him a note which said that he “should not be scheduled for more than 9 hours 5 days a week” because of his mental health issues and he asked O’Reilly Auto to comply with these restrictions.  In response to concerns raised by O’Reilly Auto about this request, MERG’s client made clear to O’Reilly Auto that even though his health care provider did not want it to schedule him for more than 9 hours per day 5 days per week she agreed that he could work unscheduled hours, on top of his normally scheduled hours, if necessary.  O’Reilly Auto denied our client’s scheduling request because it claimed that he could not perform the essential functions of a store manager with these scheduling requirements. 

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