Articles Posted in Disability discrimination

An investigator with the Maine Human Rights Commission (MHRC) has reportedly found that Kennebec Valley Community Action Program (KVCAP) discriminated against a hearing impaired employee, violating the disability discrimination provisions of the Maine Human Rights Act (MHRA). The hearing impaired employee, Agnes Farnsworth, provided transportation to KVCAP clients, who were economically disadvantaged people living in central Maine. Farnsworth asked KVCAP to communicate with her by text message, instead of by phone, while she was on the road because of her hearing impairment. KVCAP apparently agreed to this reasonable accommodation at first but, after a couple weeks, stopped. It then terminated Farnsworth allegedly because it no longer wanted to provide her with this reasonable accommodation.

Farnsworth did not receive any wages from KVCAP. The MHRC has determined that KVCAP was still Farnsworth’s employer even though it did not pay her for her work, which means that she can bring a claim against KVCAP under the employment discrimination provisions of the MHRA. Typically, in a case where an employer unlawfully terminates an employee, the employee seeks back pay. In this case, Farnsworth will not be entitled to back pay because KVCAP did not pay her. That said, KVCAP may be required to pay Farnsworth money to compensate her for the emotional distress she experienced when KVCAP terminated her. Farnsworth likely derived a lot of personal satisfaction out of helping KVCAP’s clients and, given that she worked for KVCAP for 17 years, she likely enjoyed working with many of her co-workers at KVCAP. Most people spend about half of their lives at work and when an employer takes away that part of someone’s life, it takes an emotional toll on the person.

In addition to emotional distress damages, KVCAP may also be required to pay punitive damages. Employers who recklessly disregard the rights of their employees are sometimes required to pay punitive damages as an additional deterrent to them violating the law again in the future. Typically, punitive damages are awarded when an employer who violated an employee’s rights knew that its actions were illegal but broke the law anyway.

Last week, the Massachusetts Supreme Judicial Court held for the first time under Massachusetts law that an employer may not discriminate against an employee because of that employee’s association with a disabled person. In Flagg v. Alimed, Inc., Alimed fired Marc Flagg after 18 years of service to the company because his wife developed a cancerous brain tumor and required expensive medical treatment. So that it did not have to continue to carry Mr. Flagg and his wife on its health insurance plan, Alimed fired Mr. Flagg. After Alimed fired him, Mr. Flagg and his wife had no health insurance and they had to use their retirement savings to pay for her medical care.

Unlike the Maine Human Rights Act, Massachusetts’ disability discrimination law does not expressly prohibit discrimination against an employee because of his association with a disabled person. Nevertheless, the Massachusetts Supreme Judicial Court held that its law prohibited such discrimination because people like Mr. Flagg are “regarded as” disabled. “When an employer takes adverse action against its employee because of his spouse’s impairment, it is targeting the employee as the direct victim of its animus, inflicting punishment for exactly the same reason and in exactly the same way as if the employee were handicapped himself,” the Court said.

Unfortunately, Alimed’s treatment of Mr. Flagg and his family is not uncommon. If your employer has fired you or plans to fire you because you or a member of your family has a disability which requires expensive medical care, you should contact an experienced employment lawyer to learn more about your rights.

This week, the New England Patriots cut defensive lineman Kyle Love. According to Love’s agent, Richard Kopelman, the Patriots made this decision shortly after Love was diagnosed with Type 2 diabetes. Due to the timing of the Patriots’ decision, many have questioned whether Love’s disability factored into the Patriots’ decision. Kopelman said that Love had lost weight prior to his diagnosis but after he changed his diet he regained most of the weight.

“Having consulted with leading authorities on the effects of Type 2 diabetes, we have every reason to believe that Kyle will, in the immediate future, be at 100 percent, and will be prepared to participate in training camp in a couple of months,” Kopelman said. “As Kyle said, ‘there is no way something like this is going to stand between me and a long and successful NFL career.'”

It is illegal under federal and Maine law (although, Maine law doesn’t apply to Love) for an employer to discriminate against an employee or applicant because he has a disability. Defying what many think to be common sense, some courts used to be reluctant to find that Type 2 diabetes and many other types of medical conditions constituted disabilities. In 2007, Maine amended its disability discrimination law and, in 2008, the federal government amended its law so that now both laws are much more protective of employees and applicants with diabetes as well as other types of medical conditions. Indeed, under Maine law, diabetes is on a list of conditions that are part of the definition of disability.

The Maine Human Rights Commission (MHRC) has found that the Waterville Police Department discriminated against Sgt. Jeffrey Bearce when it refused to accommodate medical limitations related to leukemia (a form of cancer). After battling leukemia for about a year, Bearce’s doctor cleared him to return to work in December 2010 without restrictions. Rather than return him to work, Waterville sent Bearce for further evaluation. The MHRC found that Waterville should have allowed Bearce to return to work and put him on light duty, such as desk work, while it further evaluated his limitations.

While Bearce underwent the further evaluation that Waterville required him to undergo before it would let him return to work, his cancer symptoms returned. He became unable to work again for a period of time but in the summer of 2011 he underwent a bone marrow transplant and his leukemia is now in full remission.

Now that the MHRC has found in favor of Bearce, it will attempt to facilitate a negotiated settlement between Bearce and Waterville. If that fails, the next step could be a lawsuit.

On July 10, 2012, the U.S. District Court of Maine denied Pine State Trading’s motion to dismiss a disability discrimination lawsuit against it. A former Pine State Trading truck driver, David Gilks, filed the lawsuit against Pine State Trading because it decided to fire him rather than accommodate his disabilities. Mr. Gilks, represented by the Maine Employee Rights Group, alleges that Pine State Trading violated his rights under the Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA).

Mr. Gilks has a variety of medical conditions including psoriatic arthritis and Wegener’s granulomatosis, which cause recurring skin ulcerations on his legs and impair his mobility. Mr. Gilks also suffers from diabetes, anxiety, and depression. In March, 2010, he needed medical leave as an accommodation for his disabilities. After the conclusion of a 12-week period of medical leave, in June 2010, Mr. Gilks requested an additional 4-8 weeks of medical leave as a reasonable accommodation for his disabilities. Instead of providing him with this reasonable accommodation, Pine State Trading fired him. Pine State Trading caused Mr. Gilks to suffer from a lot of stress when it fired him and that stress exacerbated his disabilities. Because of this exacerbation of his disabilities, Mr. Gilks has been unable to work since Pine State Trading fired him.

Pine State Trading argued to the Court that it did not violate the law because it does not have to provide disabled employees with indefinite medical leave and Mr. Gilks admits that he has been unable to work since it fired him. The Court rejected this argument because, according to Mr. Gilks, if Pine State Trading hadn’t fired him, he would’ve been able to return to work after 4-8 weeks of medical leave. Thus, he did not request indefinite medical leave.

As many people know, it is tough to be unemployed and looking for work particularly in times of high unemployment when you have to compete against more people for fewer jobs. For people with disabilities, it can be even more stressful because they are not sure if an employer will treat them differently because they have a disability or will unwilling to accommodate their disability. The U.S. Equal Employment Opportunity Commission has published guidance to help people with disabilities who are looking for work.

Under the Americans with Disabilities Act (ADA), which is similar in many respects to the Maine Human Rights Act (MHRA), before an employer offers you a job, it may not ask you if you have a disability or require you to undergo a medical examination. Some examples of prohibited questions during this pre-offer stage of the hiring process are:

• How many days were you sick last year?

Under a Maine statute, employers may pay certain disabled employees less than minimum wage if they receive authorization from the Maine Department of Labor (MDOL). Maine recently amended this statute. Among other things, the amended statute now only requires employers to seek reauthorization to pay a disabled employee subminimum wage every two years instead of every year.

This statute is similar to a federal statute that has come under fire from disability rights advocates, members of Congress, and legal scholars because it is blatantly discriminatory against individuals with disabilities. Under the Maine Human Rights Act and the Americans with Disabilities Act, employers may not discriminate against employees with disabilities. It certainly constitutes discrimination to pay disabled employees less because they are disabled. However, that is exactly the conduct that these subminimum wage laws sanction.

If you think these subminimum wage laws should be abolished, you should contact your state and federal representatives.

James White, a former HIV+ employee of Great Expressions Dental, claims that he faced discrimination and harassment after the company learned of his disability. He alleges that, among other things, the company permitted co-workers to follow him around with Lysol, forbade him from touching doorknobs, unfairly disciplined him, and terminated his employment because of his HIV+ status. According to Mr. White’s representatives, Detroit Legal Services, the U.S. Equal Employment Opportunity Commission (EEOC) has issued Mr. White a letter which states that its investigation corroborated his allegations against Great Expressions Dental.

Great Expressions Dental has now taken the unusual step of suing Mr. White and his supporters over the allegations. It sued Mr. White seeking a declaratory judgment which will dismiss his case. It sued some of Mr. White’s supporters because they posted petitions online which the company claims contain false accusations. Detroit Legal Services’ President said in response to the company’s lawsuits, “we are outraged by the further, relentless discrimination and bullying toward an individual who has been traumatized more than anyone should ever be.”

It is a violation of federal and Maine state law for an employer to discriminate against or harass an employee because he has a disability such as HIV. As this case demonstrates, even if the EEOC finds in your favor, many employers will fight tooth and nail to defend themselves against allegations of discrimination and harassment. So, if you’ve experienced disability discrimination or harassment at work, you should seek the advice of an experienced employment attorney.