Articles Posted in Disability discrimination

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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.

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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:

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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.

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In a case that the Maine Employee Rights Group (MERG) filed against F.W. Webb Co., the U.S. District Court of Maine has found that a jury could reasonably conclude that in 2009 F.W. Webb unlawfully fired Mr. Crosby, a former truck driver based out of its South Portland location, because of his disabilities and need for medical leave.  In 2009, Mr. Crosby needed two medical leaves of absence from work because he had to undergo treatment for the disabilities of alcoholism and depression, which were exacerbated by a divorce that he was going through.  F.W. Webb fired Mr. Crosby one week after he returned from his second medical leave of absence.

F.W. Webb unsuccessfully attempted to persuade the court that Mr. Crosby did not have a disability under the Americans with Disabilities Act (ADA) and Maine Human Rights Act (MHRA).  Relying on the medical evidence that MERG provided, the court rejected F.W. Webb’s arguments.  Indeed, the fact that Mr. Crosby suffered from alcoholism, alone, established that he had a disability under the MHRA.

F.W. Webb also unsuccessfully argued that it fired Mr. Crosby because Mr. Crosby—an employee with no prior disciplinary history at F.W. Webb—unknowingly drove for two days without a valid license.  The court rejected F.W. Webb’s argument because MERG showed that this supposed reason was likely just a cover-up, or “pretext,” for its unlawful motivation.  MERG showed that F.W. Webb treated Mr. Crosby differently than other truck drivers who did not have disabilities or a need for medical leave.  For instance, F.W. Webb usually warned truck drivers that their licenses were about to expire but it did not do that for Mr. Crosby.  Instead, F.W. Webb notified Mr. Crosby that his license had expired after-the-fact.  Also, other F.W. Webb truck drivers committed infractions just as bad, or worse, than Mr. Crosby and F.W. Webb did not even discipline, let alone fire, them.  For instance, one F.W. Webb driver illegally drove a F.W. Webb truck with an expired Department of Transportation (DOT) card.  Even though a law enforcement officer cited him for driving with this expired DOT card, F.W. Webb did not discipline him.  Another F.W. Webb driver drove a truck after he had been convicted of driving under the influence (DUI) but F.W. Webb did not discipline him for this infraction.

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According to statistics released by the U.S. Equal Employment Opportunity Commission (EEOC) earlier this month, disability discrimination complaints were less common nationwide than some other forms of discrimination complaints. The EEOC received more complaints of race discrimination, sex discrimination, and unlawful retaliation than complaints of disability discrimination. In contrast, the Maine Human Rights Commission’s (MHRC) last Annual Report indicated that disability discrimination complaints are by far the most common type of discrimination complaint in Maine. During the period covered by its last Annual Report, the MHRC received twice as many disability discrimination complaints than the next most common type of complaint.

The high number of disability discrimination complaints filed with the MHRC, relative to other types of complaints, may indicate that disability discrimination is the most prevalent form of employment discrimination in Maine. I say it “may” indicate that disability discrimination is the most prevalent form of employment discrimination because (1) we don’t know the percentage of disability discrimination complaints that had merit and (2) the MHRC’s Annual Report lumps all types of disability discrimination complaints together and does not just report how many were employment related, although the vast majority (73.9%) of complaints the MHRC receives are employment related.

One interesting aspect of disability discrimination is that, unlike some other protected traits like race and sex, a disability sometimes affects a person’s ability to do her job. For instance, an employee with cancer may need an accommodation like periodic medical leave from work to undergo treatment. An employer’s failure to provide such an accommodation to an employee with a disability could constitute disability discrimination. For that reason, it is sometimes easier for a disabled employee to realize that his employer has discriminated against him than it is for an employee to realize that his employer has discriminated against him because of his race, sex, or other protected trait.

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A Maine Human Rights Commission (MHRC) investigator has reportedly found that the City of Belfast’s Fire and Ambulance Department violated the Maine Human Rights Act (MHRA) when it refused to provide reasonable accommodations to a former employee who had diabetes. The former employee, David Cobb, provided the Belfast Fire and Ambulance Department with a note from his doctor which said that he needed to reduce the number of night shifts he worked for a couple months because those night shifts were contributing to his elevated blood sugar levels. Mr. Cobb did not think the accommodation would impose any hardship on the Fire and Ambulance Department because he only needed to reduce his night shifts for two months.

Rather than grant the accommodation that Mr. Cobb and his doctor said he needed, the Belfast Fire and Ambulance Department sent Mr. Cobb to its own doctor for an evaluation. The Fire and Ambulance Department’s doctor said Mr. Cobb did not need to cut back on his night shifts and could work his regular schedule. The Belfast Fire and Ambulance Department then refused to grant Mr. Cobb the accommodation he requested. Faced with the dilemma of whether he should disobey his doctor’s orders in order to keep his job, Mr. Cobb chose to resign because he did not want to violate his doctor’s orders.

The City of Belfast reportedly argued to the MHRC that Mr. Cobb does not have a disability because there is no medical evidence that his condition limits his life activities or significantly impairs his physical health. This argument should have been immediately rejected because the MHRA definition of disability specifically includes diabetes. In other words, if you have diabetes, you are disabled under the MHRA, period.

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Yesterday, the United States Fourth Circuit Court of Appeals, a court based in Virginia, held that an employee was disabled under the terms of the Americans with Disabilities Act (ADA) because of severe injuries he sustained to his legs that were temporary. The employee fell on a train platform and required multiple surgeries to repair the damage to his legs. He was unable to walk normally for seven months but eventually recovered to the point where he could walk normally again. The Fourth Circuit overturned the decision of the trial court which had held that the employee’s leg injury could not be a disability under the ADA because it was temporary.

The ADA was amended in 2008 to make the definition of disability broader. The Fourth Circuit noted that under the old version of the ADA, the employee at issue in this case would not have had a disability because of the temporary nature of his leg injuries.

The Fourth Circuit is the first federal appellate court to address the issue of whether a temporary condition, such as a leg injury, may constitute a disability under the amended version of the ADA. However, the EEOC, which is a federal agency that enforces the ADA, has issued regulations that interpret the ADA’s definition of disability to include temporary conditions. The Fourth Circuit relied heavily on those regulations in its decision and there is a good chance that the First Circuit Court of Appeals, which has jurisdiction over Maine, would do the same with a similar case.

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An investigator with the Maine Human Rights Commission (MHRC) has found that Pan Am Railways violated the disability discrimination provisions of the Maine Human Rights Act (MHRA) when it dismissed a Skowhegan man named David Crockett. According to news reports, Pan Am sent Mr. Crockett for a mental health evaluation when he allegedly barked like a dog at work. Mr. Crockett’s own health care provider cleared him to work but Pan Am wanted Mr. Crockett to see a doctor of its own choice. The company’s doctor said Mr. Crockett would need to see a psychiatrist, a brain specialist, before she would clear him to return to work. Mr. Crockett was told that he would need to see the brain specialist for 12-18 sessions at a rate of $150/hour, which he could not afford. Pan Am refused to pay for the brain specialist and then dismissed Mr. Crockett because he could not pay for the brain specialist to evaluate him and clear him to work.

“The employer cannot shift the burden onto the employee to obtain medical evidence of his or her ability to work safely, nor can the employer shift the cost of the medical evaluation onto the employee,” the MHRC investigator wrote in her report.

Employers must meet a relatively strict standard before they may require an employee to undergo a medical evaluation. Under both Maine and federal law, an employer cannot require an employee to undergo a medical evaluation unless the evaluation is “job-related and consistent with business necessity.” One way an employer can satisfy this standard is if it observes the employee exhibiting symptoms that indicate he may have a medical condition that would impair his ability to do the essential functions of his job or would create a threat to his or another person’s safety. It appears as though that was what the MHRC investigator found happened in Mr. Crockett’s case and, so, Pan Am would not have violated the MHRA by requiring him to undergo a medical evaluation if it had just agreed to pay for it.

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Earlier this month, the Labor and Workforce Development Committee of the Massachusetts House voted in favor of a bill that would prohibit employment discrimination on the basis of height and weight. The bill would add height and weight to the list of characteristics that employers already may not use to discriminate against employees, such as race, sex, and religion.

A doctor who testified in support of the bill said that he had treated countless patients who suffered from discrimination because of their weight. He testified that he thinks discrimination against overweight people has become socially acceptable because of the common misconception that obesity is a character flaw.

Maine and federal law do not ban discrimination on the basis of height and weight. However, if your employer has discriminated against you because you are morbidly obese, you may be able to pursue a claim for disability discrimination. Some courts have found that morbid obesity is a disability. Height and weight requirements can also be used to discriminate against women and people with disabilities which affect their height, such as people with dwarfism. If an employer requires employees to be tall, that requirement could be illegal because of its disparate impact on women (who are, on average, shorter than men) and people with disabilities like dwarfism.

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Earlier this year, the Maine Human Rights Commission determined that Greyhound Lines, the bus company, violated the Maine Human Rights Act (MHRA) when it failed to provide reasonable accommodations to a passenger who needed those accommodations because she had health issues, including morbid obesity. It found that the passenger’s health issues fell under the MHRA’s definition of “disability” and that Greyhound’s actions constituted disability discrimination. The same definition of disability in this Greyhound case applies in employment discrimination cases. As such, employers may violate the MHRA’s disability discrimination provisions if they refuse to provide reasonable accommodations to or discriminate against morbidly obese employees.

For example, earlier this year in Kentucky, an appellate court held that an employer engaged in disability discrimination, in violation of Kentucky state law, when it fired a morbidly obese employee because of her morbidly obese appearance. In that case, a medical expert testified that the employee’s morbid obesity was caused by a physiological condition–which was key to the court’s decision. The court borrowed the reasoning from federal courts that have interpreted the federal Americans with Disabilities Act (ADA) and concluded that morbid obesity may only constitute a disability if there’s evidence that a physiological disorder has caused it.

If you need reasonable accommodations to do your job because you are morbidly obese and your employer refuses to provide you with those accommodations or your employer has discriminated against you because of your morbidly obese appearance, you should contact an experienced employment lawyer to learn more about your rights.

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