EEOC states that employers can discriminate in favor of people with disabilities or older workers. An Equal Employment Opportunity Commission discussion letter states that nothing in the Americans With Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) prohibits an employer from hiring only people with disabilities, or people over 40, or from discriminating against people somewhat over 40 in favor of people even older. The language of these laws cover only one-way discrimination; they do not cover those without disabilities or the more youthful. This is different from the other EEOC laws, which prohibit discrimination against any race, any religion, any national origin and both genders, equally; one cannot discriminate in favor of one over another. Employers should be cautious about any reliance upon this EEOC letter. It will only apply if the rejected party’s complaint is limited solely to being of a younger age or not having a disability. The moment the plaintiff claims that a preference for a person with a disability or an older person led to rejection of qualified people of a different race, sex, national origin, etc., then the EEOC will likely see a viable discrimination case. So the letter probably has only a very limited real-life application.

Age Discrimination

“He’s going to leave here at 62, and I’ll see to it!” It is difficult to defend an age-discrimination case when the discharged employee’s manager has made comments like the above. The manager also stated, “He’s been here long enough and he ought to go on Social Security.” The manager claimed the employee was terminated for poor performance. However, the court found that her overt statements about age undermined the poor-performance defense. Hale v. ABF Freight System, Inc. (6th Cir., 2012). A message from this case is that even if there might have been a performance problem, a manager can destroy any defense of a case by unwise, prejudicial statements. These may be made in angry frustration over real poor performance, but will overshadow any performance issue and lose the case.

Six-and-a-half years makes a difference. The ADEA protects older workers and applicants, including those older than others within the over-40 group. However, the courts recognize “approximately the same” age. Thus, a 60-year-old cannot effectively claim it was age discrimination to hire a 58-year-old, because they are approximately equal in age. The 6th Circuit has adopted a six-year range. A 57-year-old tech-college employee was fired and replaced by a 51-year-old. The employer argued that the case should be dismissed under the six-year “approximately the same” age rule. However, the court found a six-and-a-half-year age difference and ruled that there was enough difference in age to allow a prima facie ADEA case. Blizzard v. Marion Tech College (6th Cir., 2012).

Disability Discrimination

$4.85 million settlement due to discriminatory leave policy. A trucking company’s leave practice automatically terminated anyone unable to return to work after 12 weeks of medical leave, regardless of reason. This conformed with the Family and Medical Leave Act but violated the ADA, which requires consideration of a “reasonable amount of leave.” The EEOC brought suit due to the failure to consider disability exceptions to a rigid policy. In addition to the money, the settlement also included revision of policies, training of supervisors and employees, and appointment of a monitor—at company expense—to assure ADA compliance. EEOC v. Interstate Distributor Co. (D. Col., 2012). [For years the courts have ruled that the FMLA and ADA have different requirements, and simply allowing the 12 weeks for FMLA is not sufficient for ADA compliance. The courts have also routinely found fault with rigid leave policies and “no fault” (no excuse) attendance discharge policies which do not allow the interactive consideration process required by the ADA.]

Family and Medical Leave Act

School district has burden of proving that teachers did not work enough hours. A teacher was denied tenure at the end of his probationary period, though he received the highest possible ratings in almost all evaluation areas. The downfall was the “excessive absence” due to gall bladder surgery in the months before. He sued, claiming FMLA retaliation. The district defended by claiming the teacher had not worked the 1,250 hours necessary to be covered by FMLA—he was three hours short. However, he claimed to have regularly worked an hour a day outside of normal hours on items integral to teaching—preparing lessons, materials, etc. The court found that under the FMLA, the employer has the burden to “clearly demonstrate” that an employee did not work enough hours to be eligible. The court recognized that teachers often devote extra time “outside the contract negotiated hours.” Since the school district could not prove otherwise, the court found in favor of the teacher on the hours issue. Donnelly v. Greenburgh Central School Dist. (2nd Cir., 2012).

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanclark.com

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Disability Discrimination: 

Walmart manager’s unreasonable conditions for diabetic employee violated ADA. A Walmart meat-department employee with diabetes had always kept her testing kit close by at her desk in the work area. A manager ordered her to remove it to her locker, at a far end of the store. (There was no apparent significant reason for this direction.) The employee protested that she needed to frequently test her blood sugar, and she could not get to the locker soon enough to test and control her condition. Nonetheless, she was ordered to remove the test kit. Then she was told that if she left her work station to go to her locker, she would be fired. She could only test her blood sugar on breaks or lunch. Unable to effectively test and control, the employee soon had a major diabetic reaction while in the store’s meat cooler. She had a seizure and was hospitalized and unable to resume work at Walmart. Walmart defended by claiming she did not actually have a disability because she had always been able to perform all essential functions of her job. The court rejected this defense. The plaintiff had been able to do all functions until the manager’s direction and withdrawal of any accommodation made it impossible for her to successfully function. Berard v. Walmart Stores East LP (M.D. Fla., 2011). 

Employer should have waited a little longer. A route salesman experienced dizziness, memory loss and pain due to a heart condition. His doctor stated that he should not drive. Thus, he could not perform his job of driving the route. He took a leave under the company’s six-month short-term disability program, and others covered the route. The doctor had not provided any estimate of ability to return to work. The company sent a notice of inability to hold the job open indefinitely and its intent to have a replacement (as allowed under the ADA for an “indeterminate leave”). However, the employee promptly replied that he expected to be cleared for work in 30 days. The company replaced the driver. In 30 days he was cleared for return, but the job was now filled. He sued under the ADA. The court found the company had acted too quickly. Once the employee claimed a 30-day return possibility, the leave was no longer “indefinite.” The company should have continued the leave and engaged in the interactive process regarding the reasonability of holding the job for another 30 days. Hutchinson v. Ecolab (D. Conn., 2011). 

Uniform application and OSHA approval do not save overbroad medical inquiry. In response to a serious workplace accident, an employer created a mandatory certification process for all equipment drivers. This included a medical questionnaire form. One driver objected to the invasiveness of the questions. (Among other things, it asked for identification of any past illness or accidents, date of onset, all medications, etc.) He was fired for refusing to submit the form. In the following ADA case, the company defended by claiming: all drivers, whether with a disability or without, were uniformly required to submit the form; and OSHA had approved the questionnaire. Both defenses failed. The medical-inquiry sections of the ADA apply to every employee or applicant, not just to those with disabilities. A “uniform application” of an illegal form is still illegal. OSHA is not the agency with authority over the ADA. Any non-expert agency’s approval, whether OSHA, DOT or the IRS, means nothing regarding whether the form meets ADA requirements. Just as an expert plumber cannot certify a building’s electrical system, OSHA cannot certify anything for ADA compliance. The company may still present evidence to show the medical questionnaire was not overbroad and was consistent with business-safety necessity. Miller v. Whirlpool Corp. (N.D. Ohio, 2011).

Read “7 Things NEVER to Say to People With Disabilities” for tips on how to avoid disability discrimination charges.

Age Discrimination: 

Seventy-year-old employee fired for allegedly attacking 65-year-old supervisor. An employee was fired after 57 years of employment. He claimed in his ADEA case that he was subjected to age-discriminatory comments by his coworkers prior to the discharge; they called him “old sick man,” said he was “too old for the job” and told him he should retire. However, there was no evidence the coworker comments had any effect on management’s decisions. Instead, the court believed the company had a valid reason for termination. The employee had an argument with his supervisor and struck or attempted to strike the supervisor. Further, there was no indication the company had any age bias—the supervisor was older than 60. Igaravidez v. International Shipping Corp. (1st Cir., 2011).

Legislative and Administration Action:

Fair wages under Americans with Disabilities Act would eliminate special pay certifications. An act introduced by Reps. Cliff Sterns (R-Fla.) and Tim Bishop (D-N.Y.) would end the special sub-minimum-wage programs for workers with disabilities. Currently, employers who apply for special certification can pay certain workers with disabilities less. The sponsors of the act state that it is no longer valid to presume that workers with disabilities are less productive and warrant unequal pay.

Read more legal articles here.

 Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post No ADA Accommodation Leads to Seizure, Hospitalization for Diabetic Worker appeared first on DiversityInc.

Severe

Corporate executive sacked for misuse of company credit cards, not age.  An insurance-company vice president, who was older than 50, gave company-expensed credit cards to his wife and mistress, both of whom used them to make personal purchases. The company discovered this, demanded $15,000 repayment for unauthorized personal use and then fired the executive. The vice president’s replacement was 28 years old. In McLain v. Liberty National Ins. (11th Cir., 2010), the fired vice president sued for age discrimination. But the court dismissed the case, finding that his credit-card misuse was a valid reason for the discharge. 

Read more about corporate accountability, leadership and values among the nation’s most progressive companies. Go to www.DiversityIncBestPractices.com.

Refusal to participate in discrimination investigation nixes case. An employee filed several internal organizational complaints of age discrimination. Subsequently, he was believed to have violated a security rule, spending excessive unexplained time in the computer room. He also repeatedly refused to attend meetings or answer questions in the investigation of the matter, and then he was fired. In Wood v. Summit County Fiscal Office (6th Cir., 2010), the plaintiff sued for age discrimination and retaliation. The court found that his refusal to participate in the investigation was insubordination and a valid reason for discharge. Whether or not the security charges were motivated by retaliation for his earlier age-discrimination complaints, he had a duty to follow the employer’s investigation policy. Bottom line: A plaintiff can challenge unfair discipline or discharge but must usually follow the process through to the end in order to preserve the right to sue.

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

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