Articles Posted in Disability discrimination

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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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The U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Walmart alleging that the company violated the Americans with Disabilities Act (ADA) when it failed to provide a reasonable accommodation to an employee with a disability that worked in Augusta.

According to the EEOC, the employee that Walmart discriminated against developed a disability which rendered her unable to perform any jobs except greeter and fitting room associate. The employee worked in the Augusta store and there were no open greeter or fitting room associate positions in that store. As such, Walmart terminated the employee.

The EEOC argues that Walmart had an obligation, under the ADA, to reassign the employee to another store if another store had open greeter or fitting room associate positions. As it so happens, according to the EEOC, the Waterville EEOC store had an open fitting room associate position that the employee who got fired could have filled.

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The U.S. Equal Employment Opportunity Commission (EEOC) has sued a Texas company that fired three brothers because they had a blood disorder, hemophilia A. Hemophilia A runs through these brothers’ family and requires them to undergo expensive medical treatment if they suffer a scrape or other injury that causes bleeding.

The president and vice president of the company, Signature Industrial Services, LLC (“SIS”), allegedly instructed the brothers’ manager to fire them because the president and vice president learned how the company’s health insurance rates would spike if SIS employed the brothers. One manager allegedly refused to fire the brothers but when he left SIS, the president and vice president got another manager to fire the brothers. This manager told the brothers that SIS decided to let them go in connection with a reduction in force, but SIS laid off no other workers at the time it terminated the brothers.

The factors that led SIS to allegedly discriminate against these brothers are very common in disability discrimination cases. Companies often discriminate against workers with disabilities because of the actual or perceived additional costs that come with employing a person with a disability. These additional costs are often not a defense to discrimination unless the employer can show that the costs pose an undue hardship on it.

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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.