Articles Posted in Disability discrimination

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Earlier this month, in a landmark decision for proponents of marijuana legalization, the Massachusetts Supreme Court held that an employer who fired an employee because she used medical marijuana to treat her Crohn’s disease may have violated the state’s disability discrimination law. The employee in the case, Cristina Barbuto, was up front with her employer, Advantage Sales and Marketing (“Advantage”), and disclosed that her doctor had prescribed medical marijuana which she used a few times per week at home; she never came to work intoxicated. Some managers with Advantage were allegedly accepting of Barbuto’s marijuana use but a human resources representative ultimately fired Barbuto because marijuana use violates federal law.

Advantage’s attorney argued that allowing an employee to use marijuana cannot be a reasonable accommodation because marijuana use violates federal law. The court rejected this argument. It determined that, even though marijuana use violates federal law, allowing someone with a disability to use it for medicinal purposes could be a required reasonable accommodation because Massachusetts state law permits medical marijuana use.

In reaching its decision, the court noted that the vast majority of states permit medical marijuana use and that fact weighed on its decision. The court stressed that “to declare an accommodation for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures of voters in the vast majority of States, that marijuana has accepted medical use for some patients suffering from debilitating medical conditions.”

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Yesterday, the Maine Employee Rights Group (“MERG”) secured another victory for our client in a federal case against Woodlands Senior Living of Brewer (“Woodlands”). As we previously reported, a Bangor jury found that Woodlands unlawfully discriminated against our client because she needed medical leave for a disability. The jury awarded our client $15,000 in back pay and, yesterday, the judge awarded our client an additional $15,000 plus interest (for a total of $30,000 plus interest) because Woodlands failed to prove that it acted in good faith when it violated our client’s rights.

In addition to awarding our client another $15,000, plus interest, the judge ordered Woodlands to change our client’s personnel records so that they indicate that Woodlands unlawfully terminated her for discriminatory reasons. The judge also ordered Woodlands to submit documentation proving that it trained its managers on the law and Woodlands’ policies regarding disability discrimination and employee family medical leave entitlements.

Because MERG prevailed in this case, Woodlands will also be required to pay attorney fees to MERG for our work on this case. The court has not yet issued a ruling on the amount of attorney fees that Woodlands will have to pay MERG.

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police-37625_640-211x300Last month, the Massachusetts Supreme Court held that a jury could reasonably determine that the Boston Police Department (BPD) discriminated against one of its police officers, Sean Gannon, because he has disabilities related to a brain injury. Gannon suffered the brain injury from his experience competing in mixed martial arts (MMA) professional fights. His brain injury resulted in impairments such as sleep apnea, speech problems, and difficulty focusing. Due to these impairments, BPD removed Gannon from patrol duty and placed him on desk duty.

Gannon underwent treatment for his brain injury and his condition improved over time. Eventually, multiple doctors cleared him to return to patrol duty. To reach their decision, these doctors relied on, among other things, the results of a simulated job test that Gannon successfully completed. This simulated job test included a “shoot/don’t shoot” target practice drill and other simulated police officer tasks. Despite Gannon’s ability to complete the simulated job test and the clearance he received from his doctors, BPD continued to refuse to return him to patrol duty. As a result, he sued BPD for disability discrimination.

The Massachusetts Supreme Court held that Gannon had enough evidence to persuade a reasonable jury that he could perform the essential tasks of patrol duty and that BPD violated his rights when it refused to return him to patrol duty. The court sent the case back to the trial court for a trial. At trial, the case will likely hinge on which side wins the “battle of the experts.” Gannon will present expert testimony that he was capable of performing patrol duty and BPD will present its own expert testimony to the contrary.  Gannon’s own testimony will probably also be key.  The jury will likely factor in how well Gannon testifies when they determine whether he can perform the essential functions of patrol duty.

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The U.S. First Circuit Court of Appeals recently held that a disability discrimination lawsuit should be dismissed because the employee who filed the case failed to provide her employer with sufficient information to support her request for a reasonable accommodation. This case illustrates one of the pitfalls that employees with disabilities face and should serve as a cautionary tale for workers with disabilities.

The employee in this case, Ms. Ortiz-Martinez, worked as a social worker for a health care service provider named Fresenius. During the course of her employment, Ortiz-Martinez suffered a hand injury and required medical leave from work while she received treatment. Eventually, her doctor cleared her to return to work while she continued to receive treatment for her injury.  Her doctor provided her with a note for Fresenius that described the injuries she suffered, which included a sprain and carpal tunnel syndrome. However, the note did not describe, with particularity, Ortiz-Martinez’s physical limitations or what accommodations she needed.

Fresenius asked Ortiz-Martinez to provide further information about how her injuries limited her physical capability so that they could determine what accommodations were necessary. Fresenius would not let her return to work until she provided it with this information. So, Ortiz-Martinez got a new note from her doctor. The new note elaborated on Ortiz-Martinez’s physical limitations but it still did not say what accommodations she needed. After several more unsuccessful attempts to get information on the accommodations that Ortiz-Martinez required, including a request made directly to her doctor, Fresenius fired her.

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The Mount Desert Islander published the article below about the Maine Employee Rights Group’s (MERG) lawsuit against Mt. Desert Hospital.

Lawsuit alleges discrimination

BANGOR — A former Mount Desert Island Hospital employee has filed a lawsuit in federal court claiming the hospital failed to accommodate her disability stemming from medical issues, and retaliated against her for using the Family Medical Leave Act.

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A federal court in Connecticut has held that a jury could reasonably find that a cellphone company doing business as Verizon Wireless discriminated against an employee because of his disability. The employee, Edward Green, had a history of chronic back pain stemming from a back injury that required surgery. He worked for Verizon Wireless as a customer service representative who fielded customer calls and attempted to resolve their complaints.

Mr. Green suffered an exacerbation of his back pain that required him to take leave. He was worried about taking leave because his supervisor had told him in the past that employees who took sick leave could be fired and if anyone had any complaints about that, they could be fired for their complaints. While on leave, Mr. Green’s supervisor told him multiple times not to take too much leave and that he could be fired. Eventually that is exactly what happened—Verizon Wireless fired Mr. Green while he was on leave.

Verizon Wireless argued to the court that it fired Mr. Green because he experienced five disconnected calls and it fired any customer service representative with five disconnected calls. But Mr. Green said no one ever communicated this supposed rule to him; it also did not communicate the rule to other employees; and Verizon Wireless never put the rule in writing. Verizon Wireless presented evidence of other customer service representatives who it claims it fired for violating this rule but many of them had significantly more than five disconnected calls. Due to this evidence, and other evidence presented, the court determined that a reasonable jury could determine that Verizon Wireless did not actually terminate Mr. Green for violating this alleged rule and, instead, fired him for taking medical leave for his back pain.

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The U.S. Equal Employment Opportunity Commission recently issued new guidance for workers with mental health conditions like PTSD and depression. The guidance discusses how the Americans with Disabilities Act (ADA) protects workers with mental health conditions and what the ADA requires employers to do to accommodate workers with mental health conditions.

The guidance makes clear that employers have an obligation to provide reasonable accommodations for workers with mental health conditions if the worker needs such an accommodation to do her job. The guidance explains that a “reasonable accommodation is some type of change in the way things are normally done at work” such as “altered break and work schedules (e.g., scheduling work around therapy appointments)” and “changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them).”

If you ask for a reasonable accommodation for a mental health condition, your employer may ask you to obtain information from your health care provider to prove that you have a mental health condition and that you need a reasonable accommodation. The EEOC’s guidance includes a link to a resource that you can provide to your health care provider to assist her in providing this information to your employer.

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Earlier this month, a federal court in Connecticut held that a jury could reasonably find that Lawrence & Memorial Hospital violated the rights of a lab tech when it failed to provide reasonable accommodations for her disability in retaliation for her filing a complaint of sexual harassment. The facts of this case, unfortunately, will sound familiar to many workers who have been similarly traumatic events.

The lab tech plaintiff who filed the lawsuit against Lawrence & Memorial Hospital, worked in a lab with a man who, she says, subjected her to some pretty significant harassment. The male co-worker allegedly acted in an abusive manner to many people in the lab. In one incident, he shoved a co-worker into the plaintiff. In another incident, he put his hand up to her face as though he was going to slap her. And in another incident, he elbowed her. Some of the harassment was also sexual, such as “blonde” jokes and nicknaming the plaintiff “bimbo.”

The plaintiff had hypertension which her doctors say was worsened because of the hostile environment she experienced at work. Her doctors believed it would be dangerous for plaintiff to continue to work in this hostile environment because her hypertension was so bad. The plaintiff complained about the harassment she experienced and also asked for changes to her working conditions to accommodate her hypertension.

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Last week, the U.S. Equal Employment Opportunity Commission (EEOC) issued new updated guidance on laws that prohibit retaliation against workers who engage in protected activities such as opposing unlawful discrimination or participating in a discrimination investigation.  The EEOC issued its previous guidance in 1998 and since that time the U.S. Supreme Court has decided seven cases in which the court addressed the anti-retaliation laws that the EEOC enforces.  So, an update of the guidance was certainly warranted.

“Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination,” said EEOC Chair Jenny R. Yang. “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.  The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights.”

The new guidance contains many helpful illustrative examples of protected activities.  Of course, there are many types of protected activities not illustrated but the EEOC’s guidance cover some common types.  Some examples of protected activity covered in the guidance include:  telling your employer that you witnessed acts of sexual harassment that a co-worker complained about; resisting sexual advances; refusing to comply with your employer’s instruction to engage in unlawful discrimination; and raising questions about potential pay discrimination.  Because these activities are protected, an employer may not retaliate against you for doing them.

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Dorney Park, an amusement park in Pennsylvania, recently faced strong criticism for failing to hire a disabled worker with special needs because interviewers found that he did not “fit in.”  The disabled worker, Chris Emery, had reportedly worked for Dorney Park the past 12 seasons but this year Dorney Park used a new hiring process and they decided not to hire him.  To their credit, after public pressure, Dorney Park has now apparently agreed to offer Emery employment.

Dorney Park’s new hiring process took place in an interactive group setting where interviewers required Emery to write statements to describe himself, read and respond to information about potential encounters with guests, and participate in a group exercise to build a Lego train.  Due to his disability, Emery has trouble reading and writing; he also is shy with people he does not know.  Unlike past years, Dorney Park did not permit Emery’s mother to accompany him during the interview.

In the past several years, Emery had worked at Dorney Park cleaning restrooms.  His mother did not understand what building a Lego train had to do with her son’s ability to clean restrooms.  Indeed, it appears that Emery had done a fine job over the past 12 seasons and that is probably why Dorney Park has now offered to let him work there.