Articles Posted in Disability discrimination

The former CFO for Proskauer Rose, a large law firm in New York, has sued it for disability discrimination. The former CFO, Elly Rosenthal, claims that the law firm demoted her and then fired her because she had breast cancer that required her to take medical leave. Ms. Rosenthal, who had served as the firm’s CFO since 1992, took several weeks of medical leave in 2008 while she underwent two surgeries to treat her cancer. According to Ms. Rosenthal, some in the law firm were supportive of her but others were not. So, when she was fired she felt “blindsided.” “I don’t know how we went from ‘Elly, get well and there will always be a place for you’ to ‘By the way, be out of here in three days,'” said Ms. Rosenthal.

Interestingly, a large part of Proskauer Rose’s business involves defending employers from employment discrimination lawsuits. Now, it has to defend itself.

If her allegations are true, Ms. Rosenthal is certainly not the first person to need medical leave from work to fight a life threatening disease and then lose her job because of it. The Maine Employee Rights Group has represented employees who have faced similar circumstances. If your employer is discriminating against you because you need to take medical leave due to a serious illness or disability, you should contact the Maine Employee Rights Group to learn about your rights.

On July 6, 2011, the United States District Court of Maine in Bangor issued a decision that permits a disability discrimination lawsuit against Bath Iron Works (BIW) to go forward. A former employee of BIW, Guillermo Blanco, brought the lawsuit against BIW (which is owned by General Dynamics Corporation).

The lawsuit alleges that BIW’s doctor violated the Americans with Disabilities Act (ADA), and a similar Maine law, when he shared Mr. Blanco’s confidential medical information with BIW management. BIW fired Mr. Blanco because of the information the doctor provided to management. BIW said it fired Mr. Blanco because it thought he lied about the fact that he had Attention Deficit Hyperactivity Disorder (ADHD) in a medical questionnaire. Mr. Blanco said he didn’t lie; he said he didn’t think the questionnaire asked about mental health issues. The Court said it didn’t matter whether he lied or not. The ADA forbids company doctors from sharing confidential medical information with management except in limited circumstances not present in this case. When the doctor told management that Mr. Blanco had ADHD, a violation of the ADA occurred. BIW will be held responsible for the violation if Mr. Blanco presents evidence to support his allegations because BIW’s doctor made the unlawful disclosure and its managers acted on the information.

According to the Equal Employment Opportunity Commission, the federal agency that enforces the ADA, “[h]istorically, many employers asked applicants and employees to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities–particularly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer, and mental illness–despite their ability to perform the job.” The ADA’s medical confidentiality requirements are important safeguards against discrimination because it is so easy for a manager to come up with a false excuse to fire an employee because he has a disability. By preventing managers from learning of employees’ disabilities, it prevents this type of discrimination.

The Maine Human Rights Commission (MHRC) has found reasonable grounds to believe that Tamco Transportation, headquartered in Presque Isle, discriminated against Peter Freeman because of his bipolar disorder.

Mr. Freeman worked for Tamco as a truck driver. When Mr. Freeman told the owner of Tamco that he had bipolar disorder, he said “that explains a lot.” When Tamco later terminated Mr. Freeman, the owner told him that he needed to lay him off due to a lack of work. However, when Mr. Freeman filed for unemployment compensation, the owner changed his reason for the termination. He told the Bureau of Unemployment Compensation that he actually terminated Mr. Freeman, in part, because he “appears to be bipolar.” Tamco’s owner continued to change his reasoning for the termination during the MHRC’s investigation. At one point, he told the MHRC that he terminated Mr. Freeman, in part, because he was in an accident with his truck. He later admitted that the accident was not Mr. Freeman’s fault and that he did not consider the accident when he terminated him. Tamco’s claim that it had to lay off Mr. Freeman due to a lack of work also did not make sense to the MHRC because Tamco hired another truck driver just a couple days after it terminated Mr. Freeman.

Chad Hansen of the Maine Employee Rights Group represents Mr. Freeman.

On March 24, 2011, the Equal Employment Opportunity Commission (EEOC) finalized new regulations for the Americans with Disabilities Act (ADA). Congress revamped the ADA in 2008. The president signed the revamped version into law in January 2009. The EEOC’s new regulations provide guidance to employers, employees, and courts on how to interpret certain portions of the new ADA.

Before Congress revamped the ADA, employers had successfully convinced the courts to interpret the ADA in a very restrictive way. Under this restrictive interpretation of the ADA, employers could discriminate against employees because they had conditions like cancer, multiple sclerosis, and bipolar disorder. The courts allowed these employers to discriminate against employees suffering from conditions like these under the rationale that these conditions were not disabilities under the ADA. For instance, courts held that some people with bipolar disorder did not have a disability because medication controlled their symptoms. Accordingly, courts permitted employers to fire someone merely because he had bipolar disorder that was controlled by medication.

Under the revamped ADA and the new regulations, people who seem to intuitively fit the definition of a person with a disability will now receive protection from discrimination that they did not enjoy under the old ADA. For instance, under the new regulations, there is a list of conditions like cancer, multiple sclerosis, and bipolar disorder which should “easily” meet the new definition of disability.

On January 24, 2011, the Maine Human Rights Commission (MHRC) unanimously found that there were reasonable grounds to believe that Dudley’s Diner discriminated against Kelly Chipman because of her vision problems. The Diner, located in Belfast, Maine, fired Ms. Chipman on March 5, 2009 because of her vision problems. Dudley’s Diner argued that Ms. Chipman’s vision problems made her unsafe to carry coffee and other hot beverages. The MHRC found that Dudley’s Diner made this decision based on unproven assumptions about Ms. Chipman’s disability. Under the Maine Human Rights Act, an employer must perform an individualized assessment of a person with a disability to determine if she is actually unable to perform her job safely before it can terminate her for safety reasons.

On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations to implement the Genetic Information Non-Discrimination Act (GINA). According to the EEOC, “Congress enacted GINA with strong bipartisan support in 2008, in response to concerns that patients would decline to take advantage of the increasing availability of genetic testing out of concern that they could lose their jobs or health insurance if such tests revealed adverse information.” Under GINA, employers may not treat employees differently because of such things as genetic test results and family medical history. For instance, an employer cannot refuse to insure an employee because that employee has a family history of heart disease. In a press release, the EEOC stated that “[t]he final regulations provide examples of genetic tests; more fully explain GINA’s prohibition against requesting, requiring, or purchasing genetic information; provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites.”

If you believe that your employer has discriminated against you because of your genetic information, you should call an experienced employment lawyer to learn more about your rights.

On November 1, 2010, the Maine Human Rights Commission (MHRC) found that Central City Sheet Metal, Inc. discriminated against Patrick Michaud because of his disability when it terminated his employment. Central City Sheet Metal terminated Mr. Michaud on November 25, 2008. Prior to his termination, Mr. Michaud had worked for the company seven years as a foreman.

Mr. Michaud has heart problems, diabetes, and pinched nerves in his left hand. He worked through these health issues but he needed accommodations from his employer to do so. One of these accommodations was a 30 pound lifting restriction that Mr. Michaud’s doctor imposed on him in January of 2008.

On November 20, 2008, less than a week before his termination, Mr. Michaud claims that he informed his supervisor that he would need to undergo surgery on his hand in the near future. At that time, he was also still working under the 30 pound lifting restriction that his doctor had imposed in January 2008.

In a federal lawsuit, the former Town Manager of Stonington, Maine, Howard Willingham, claims that the Town discriminated against him on the basis of his disability. The Town filed a motion that asked the court to dismiss the case. The Town argued that Mr. Willingham did not file his lawsuit within the statute of limitations set forth in a right-to-sue letter that he received from the U.S. Equal Employment Opportunity Commission. The court rejected the Town’s argument and permitted the case to go forward. The court held that a different, longer statute of limitations applied to Mr. Willingham’s claims.

Many employee rights statutes have different statutes of limitation. If you believe your rights may have been violated, you should contact an experienced employment lawyer immediately to make sure that you do not miss your opportunity to bring a claim.

On November 21, 2009 the federal Genetic Information Non-Discrimination Act (GINA) became effective. Under this new law, subject to a handful of exceptions, employers may not gather genetic information about their employees. Genetic information includes an employee’s family medical history. The law also forbids employers from discriminating against employees on the basis of their genetic information. For instance, under GINA, an employer could not fire someone because he has a family history of mental illness.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that will enforce GINA. However, before contacting the EEOC with a complaint about a violation of GINA, you should consult with an attorney experienced in representing employees.