Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at firstname.lastname@example.org.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects service members’ re-employment rights when returning from a period of service in the military, including people called up from the reserves or National Guard. It also prohibits employer discrimination based on military service or obligation—to the extent of the law.
No right to reinstatement at old job after company is sold. During an employee’s tour of active duty, a company sold the facility where she had worked at the time of being called up. Upon return, the company offered her another job, at a different location. She rejected the offer, however, believing that USERRA guaranteed her return to the exact job, in the same facility that she had before. This was denied by the new owners, and the employee subsequently sued. In Reynolds v. Rehab-Care Group East, the court dismissed the case. It ruled that USERRA does not impose an obligation on a company that was not the service member’s prior employer, had no connection with the service member and had not taken on any of the previous owner’s employees. All USERRA rights were tied to the plaintiff’s prior employer, and the new owner met its duty by preserving and offering her an alternative job when the old one ceased to exist (8th Cir., 2010).
Discharge warranted despite multiple discrimination claims. A U.S. Postal Service carrier lost the master key that opens every customer’s mailbox in a large area. She then didn’t report the loss, as required. The key was found days later by a passerby, who turned it in. But the mail carrier claimed that she had a hearing loss and did not hear the key fall from her keychain; therefore, she should be excused from any negative consequences as a reasonable accommodation of this disability. Instead, she was fired for the major security violation of intentionally not reporting the loss. She then sued for discrimination on the basis of age, national origin, gender, equal pay, disability and retaliation but lost on all counts. In Hernandez v. Potter, the court found the plaintiff’s serious violation of security justified the discharge. She could show no tangible evidence of bias on any of the discrimination categories filed, and she could show no one else who had done anything similar and not been fired. She was also unable to explain how her hearing, or any of the other discrimination categories, had any role in her covering up the loss of the key and failing to report it (10th Cir., 2010).
Bladder disorder does not require no-drug-testing accommodation. The captain of a New York City sludge boat could not take the standard required drug test due to the disability of a shy bladder. So the U.S. Coast Guard withdrew his license because of the failure to test, and the city discharged him, since he couldn’t work without the license. The captain sued under the Americans with Disabilities Act (ADA), claiming discrimination and failure to accommodate. In Kinneary v. New York City, the court found that the city and Coast Guard sought additional medical information in order to decide whether an alternative test was warranted. But the captain submitted vague and inadequate doctor notes. The court decided that it was the captain, not the employer, who was at fault; the employer would have considered an alternate test if the plaintiff had met his medical-certification obligation (2nd Cir., 2010).
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