Articles Posted in Disability discrimination

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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.

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Earlier this month the U.S. District Court of Maine found that a jury could reasonably hold Rumford Hospital liable for disability discrimination and retaliation against Catherine LaFlamme. The Maine Employee Rights Group (MERG) represents Ms. LaFlamme in this case.

Ms. LaFlamme worked for Rumford Hospital as a nurse. In July 2011 she sustained an injury to her lower back which her doctors diagnosed as a herniated disc. Ms. LaFlamme was hospitalized for a period of time due to the disc herniation and she underwent surgery. Because of the herniated disc, Ms. LaFlamme was unable to do her nursing job at Rumford Hospital and she went out on an extended medical leave.

Ms. LaFlamme remained out on medical leave for the remainder of 2011 and all of 2012. During that extended leave, she kept in touch with Rumford Hospital and communicated with them about her recovery. She wanted to return to work there when she was again capable of working. In November 2012, Ms. LaFlamme informed Rumford Hospital that she was getting close to being able to return to work. She told them that she hoped to be back in 30 – 60 days.

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This month marks the 25th anniversary of the Americans with Disabilities Act (ADA). President George H.W. Bush signed the ADA into law on July 26, 1990. While the ADA did not fully live up to what lawmakers intended, necessitating the Americans with Disabilities Amendments Act (ADA-AA), it has always contained important provisions that require businesses and governments to provide reasonable accommodations to disabled people. These accommodations enable people with disabilities to enjoy employment opportunities, purchase goods and services, and participate in government programs and services.

Why is it important that we accommodate people with disabilities? It is important because people with disabilities have a lot to offer to society but sometimes cannot do so unless they have the right tools. I recently saw a documentary about the famous physicist Stephen Hawking which seemed to illustrate this important concept.

Dr. Hawking has done groundbreaking work studying the origins of the universe and other issues of cosmology and physics. He may be best known as the author of the best-selling book A Brief History of Time. A Brief History of Time discusses the origins of the universe and various other issues in cosmology and theoretical physics in ways that lay people can understand. Millions of people have read A Brief History of Time and, as a result, have gained a deeper understanding of the universe.

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Earlier this month, the American Civil Liberties Union (ACLU) of Rhode Island sued Darlington Fabrics, a textile company, because it refused to hire a woman when she disclosed that she used marijuana for medicinal purposes, which is legal in Rhode Island.  The woman, Christine Callaghan, uses marijuana to treat debilitating migraine headaches.  Callaghan claims that she assured representatives of Darlington Fabrics that she would not bring marijuana to work and would not come to work under the influence of marijuana.  Nevertheless, the ACLU’s lawsuit alleges that the company refused to hire her because of her marijuana use even though her marijuana use was legal under state law.

We reported on a similar case that was filed in Maine in 2013.  In that case, the ACLU of Maine sued Adecco when it refused to hire a woman who used marijuana for medicinal purposes.  In connection with that case, the legal director of the ACLU of Maine, Zachary Heiden, said “no patient should be forced to choose between the pain relief she needs to live a normal life and the employment she needs to support her family.  And no employer should be forcing itself into the middle of a decision best made by a patient and her doctor.”

In addition to relying on Rhode Island’s medicinal marijuana law, the ACLU of Rhode Island is arguing that Callaghan’s migraine condition is a disability and Darlington Fabrics’ refusal to hire her because of the medication that she takes for that disability constitutes disability discrimination.  Regarding the lawsuit, Callaghan said “I just want Darlington and other companies in Rhode Island to treat me and other licensed patients the same way they would treat any other employee with a chronic health condition who is taking medication, as the law requires.”

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Earlier this month, the U.S. District Court for the District of Maine held that a reasonable jury could conclude that the Greenville School Department (“School Department”) unlawfully discriminated against Bruce Hanson because of his disabilities and because he requested reasonable accommodations for those disabilities.  Mr. Hanson, who is represented by the Maine Employee Rights Group, worked as the maintenance supervisor for the School Department for 11 years until he was terminated on March 14, 2012.

In June 2011, Mr. Hanson requested medical leave from the School Department’s Superintendent, Beth Lorigan, because he had prostate cancer.  In response to his request for medical leave, Superintendent Lorigan told Mr. Hanson that it might be a good time for him to retire.  A week later, without giving Mr. Hanson any notice of her intention to do so, which violated Maine public meeting laws, Superintendent Lorigan met with the School Committee, criticized Mr. Hanson’s job performance, and recommended that Mr. Hanson either retire or be terminated.

In July 2011, Superintendent Lorigan offered Mr. Hanson the options of either early retirement or termination.  Mr. Hanson rejected these options and, instead, took medical leave.  Mr. Hanson went out on medical leave in August 2011.  While out on medical leave, he informed the School Department that, in addition to his prostate cancer, he had heart disease and, as a result, he would need to get medical clearance to return to work.  He received this medical clearance in February 2012.

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