Articles Posted in Disability discrimination

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

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.”

Published on:

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.

Published on:

Under both Maine and federal law, employers in Maine must provide a disabled employee with “reasonable accommodations” if the disabled employee needs an accommodation to do her job.  One of the tricky things about getting a reasonable accommodation is that sometimes accommodations that seem reasonable to one person seem like an “undue hardship” to another; and an employer does not have to provide an accommodation that amounts to an “undue hardship.”

Because it is sometimes difficult to determine what accommodation would be reasonable for a disabled employee, courts have held that employers and employees should engage in an “interactive process” to determine how the employer can accommodate an employee’s disability without undue hardship.  This interactive process is typically initiated when an employee tells his employer that he is having difficulty doing his work because of a disability and he wants to talk about accommodations that would address the problem.  At that point, the employer and employee should talk through what accommodations would and would not work for them.

If you need an accommodation for a disability and you want to learn about potential accommodations that might help you, you should consult the Job Accommodation Network (JAN).  JAN runs a website where you can search for various types of disabilities and learn valuable information about different ways employers can accommodate those disabilities.  For instance, if you search JAN for “hearing loss,” you’ll find, among other things, ideas for accommodating an employee who has difficulty communicating in groups because he cannot hear well.  These ideas include setting rules for meetings, like allowing only one person to talk at a time, or taking minutes of the meeting that can be shared afterwards to ensure that the disabled employee did not miss something that was said.

Published on:

Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on Pregnancy Discrimination and Related Issues which discusses legal requirements under the Pregnancy Discrimination Act (PDA), Americans with Disabilities Act (ADA), and other federal laws.  According to the new Enforcement Guidance, pregnancy discrimination complaints have been on the rise for years, outpacing the steady rise of women in the workplace.

This new Enforcement Guidance provides additional legal support for pregnant employees who need light duty because of physical restrictions related to their pregnancies.  The Enforcement Guidance makes clear that, under the PDA, if an employer permits employees with physical restrictions similar to a pregnant woman to have light duty, it must give light duty to pregnant employees as well.  For instance, if an employer gives light duty assignments to employees with lifting restrictions due to on-the-job injuries, it will need to provide light duty assignments to pregnant employees who have those same lifting restrictions.

According to the Enforcement Guidance, the ADA entitles pregnant employees who suffer from some pregnancy-related medical impairments to reasonable accommodations.  For instance, an employer may have to permit a modification to an employee’s work schedule in order to accommodate her if she has a pregnancy-related medical impairment. The Enforcement Guidance offers the following example of such a situation:

Published on:

The Maine Employee Rights Group (MERG) has filed a lawsuit against Huhtamaki, Inc.  The lawsuit alleges that the company discriminated against MERG’s client Barry Kot because he has epilepsy and retaliated against him because he spoke out against the company’s discrimination.

Huhtamaki is a large Finnish corporation with about 14,400 employees and operations all over the world.  It manufactures consumer and specialty packaging.

In August of 2013, Huhtamaki offered Mr. Kot a job as a Machine Operator at its Waterville location.  Mr. Kot was well qualified for this job having worked as a machine operator for another company between 2007 and 2012 and doing other similar jobs as well.