Articles Posted in Disability discrimination

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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.

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The Town of Amherst, Massachusetts, reportedly settled a disability discrimination claim brought by a former employee with multiple sclerosis (MS).  The former employee, Ellen Bokina, worked for Amherst as a sanitarian and environmental health coordinator until Amherst fired her in August 2009.  Amherst fired her a year after she filed a workers compensation claim due to injuries she sustained when she fell and six months after Amherst learned, through a medical exam, that she had MS.  Ms. Bokina alleged that the Amherst Town Manager, Laurence Shaffer, commenced “a campaign of slander and discrimination” against her after he learned about her MS.  She further alleged that Mr. Shaffer told Amherst’s former health director that he never should have hired Bokina.

The Massachusetts Commission Against Discrimination (MCAD) investigated Ms. Bokina’s claims and found probable cause to believe that Amherst and Shaffer had discriminated against Bokina because of her disability.  Amherst settled the case for $195,000 broken down as follows:  $40,000 for lost wages, $16,000 for lost benefits, $56,000 for emotional distress damages, and $83,000 for legal fees and expenses.  Because Amherst was insured, however, its insurance covered all but $7500 of the settlement.

There are some elements to this case that are relatively common in disability discrimination cases.  Amherst’s alleged motivation for terminating Ms. Bokina seems to have been linked to her workers’ compensation claim and the potential for her to file additional workers’ compensation claims in the future because of her MS.  MS has the potential to weaken a person’s limbs and adversely affect her coordination.  Thus, Amherst may have thought that the risk of Ms. Bokina falling again was too high.  These fears that disabled people will file workers’ compensation claims sometimes motivate employers to discriminate against them.

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A new study shows what most lawyers who represent disabled employees already knew—discrimination against job applicants who disclose that they have disabilities is rampant. The researchers who conducted the study used the accounting industry and the disabilities of Asperger’s syndrome and spinal cord injuries in their experiment. They sent fictitious applications in response to over 6,000 advertised accounting positions. The applications for each position were the same except for cover letters that said some of the applicants had no disability, some had Asperger’s syndrome, and some had spinal cord injuries. The researchers found that employers expressed interest in the applicants with disabilities 26% less frequently than applicants without disabilities.

“I don’t think we were astounded by the fact that there were fewer expressions of interest” for people with disabilities, said one member of the research team. “But I don’t think we were expecting it to be as large.”

The researchers found that businesses with fewer than 15 employees were even less likely than larger employers to express interest in disabled applicants. This may be due to the fact that the Americans with Disabilities Act (ADA), the federal law that prohibits discrimination against disabled applicants, only applies to employers with 15 or more employees. Thus, smaller employers have less fear of disability discrimination lawsuits. However, it is also possible that the difference between large and small employers is due to smaller employers’ concerns about the potential costs of providing reasonable accommodations to disabled employees, even if the ADA does not require them to do so. This may have motivated some of the smaller employers in places like Maine, which has a state disability discrimination law (the Maine Human Rights Act (MHRA)) that covers all employers regardless of their size.  Whatever the motivation for these small employers, they are acting on the stereotypical assumption that accommodating a worker with a disability will be more of a drain on their business than a benefit.  These stereotypical assumptions often overstate the cost of reasonable accommodations and understate the positive contributions that disabled workers can provide to a business.

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Today a jury in Portland’s federal court returned a verdict against Rumford Hospital and in favor of the Maine Employee Rights Group’s client Catherine Prescott. Attorneys Peter Thompson and Chad Hansen represented Ms. Prescott at trial.

We previously reported on this case when the court denied Rumford Hospital’s motion for summary judgment. Ms. Prescott, formerly Ms. LaFlamme, worked as a nurse at Rumford Hospital. The case centered around Ms. Prescott’s need for medical leave as a reasonable accommodation for her disability, a herniated disc in her back that required surgery.

The Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA) require employers to provide reasonable accommodations to employees with disabilities. One type of reasonable accommodation is medical leave. In this case, Rumford Hospital let Ms. Prescott take an extended medical leave of over a year due to her herniated disc and related surgery but it fired her before she was able to return to work. When she was able to return to work, Rumford Hospital also refused to rehire her. The jury determined that Rumford Hospital failed to reasonably accommodate Ms. Prescott’s disability, discriminated against her because of her disability, and unlawfully retaliated against her. The jury awarded Ms. Prescott $35,685 for back pay and compensatory damages.

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The U.S. Department of Labor recently highlighted the distressing problem of workplace injuries in the health care industry.  Health care workers, such as nurses and nurse aides, suffer work-related injuries and illnesses at a rate almost twice as high as the rate of workers in private industry.  They suffer injuries from, among other things, moving patients, needle sticks, and exposure to hazardous chemicals and drugs.

This is a serious problem.  “It means that workers who are relatively young have to stop working early in many cases,” says David Michaels, chief of the federal Occupational Safety and Health Administration (OSHA). “They go home and they have real disabilities. They have trouble lifting up their kids. They have trouble doing a lot of the daily tasks of life, because of back injuries, arm injuries, shoulder injuries. It’s a very big deal.”

Many of the injuries that health care workers suffer are preventable.  In some hospital systems, safe patient handling programs have dramatically reduced workplace injuries.  In Veterans Administration hospitals injuries from lifting patients dropped by an average of 40% and in a chain of hospitals they dropped by 80% after implementing safe patient handling programs.  These programs include training staff on proper techniques and utilizing better equipment to lift patients.