Lying About Disability, Covering Up Sexual Harassment & Other Legal Issues


Legislative and Administration Action

VETS report deadline extended. The due date for VETS reports has been moved from Sept. 30 to Nov. 30 because of technical problems at the Department of Labor Veteran Services Employment & Training website. The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) requires federal contractors and subcontractors to track and report annually to the Secretary of Labor the number of employees in their workforces by job category, hiring location and who belongs to the specified categories of covered veterans. This reporting is done via the VETS-100 and VETS-100A reports.

EEO-1 report deadline is still Sept. 30. The deadline for filing an Employer Information Report EEO-1 with the EEOC is Sept. 30. Under EEOC regulations, employers in the private sector with 100 or more employees and some federal contractors with 50 or more employees must submit EEO-1 reports annually. The data is shared with state Fair Employment Practices Agencies, the Office of Federal Contract Compliance Programs, the Department of Labor and several other federal agencies.

Discrimination

$3.2 million because of judge’s sexual harassment. A jury awarded three female county-court employees $3.2 million in a sexual-harassment case brought under 42 U.S. Code 1983, which has no limit on liability and allows naming the harasser personally, along with the employing organization. The county judge was found to have “violated the bodily integrity and intentionally inflicted emotional distress upon the plaintiffs.” The jury found he had fondled the employees’ private body areas, made repeated sexual comments and sent sexually explicit emails over a two-year period. The jury also concluded that when the employees complained, the county conspired to cover up the behaviors and took no corrective action. Kalina, et. al. v. Blackstock (S.D. Tex., 2011).

EEOC achieves largest settlement in the history of ADA. Verizon Communications has agreed to pay $20 million to settle a class action over the company’s absence policies, which disciplined or discharged employees regardless of reason, including not accommodating absences because of disability. The company will also change its policies and provide training on disability law and practices. EEOC v. Verizon Tel, LLC (D. MD, 2011).

Deaf convenience-store manager wins $1 million (perhaps more). A jury found in favor of an exconvenience store area manager. The $1-million award may go to $1.8 million after the court considers motions for additional front-pay and attorney fees. The employee, who had 95 percent hearing loss, had successfully managed a store, then managed several stores for years. He lip-read, carried a text pager and had a fax machine in each store. A new supervisor decided the equipment should no longer be on the budget and took it away. The employee bought his own text pager but could not purchase the other equipment for each store he visited. Further, the new supervisor decided to conduct meetings by conference call but would not provide assistive technology, so the manager could not hear, nor read lips. The manager’s requests for restoring accommodation were rejected. He was unable to effectively continue to perform the job. The company denies it violated the law and plans to appeal. Soliday v. 7-Eleven, Inc. (M.D. Fla., 2011).

Employee defeats own case by dishonesty about which disability he had. An employee’s bipolar condition caused multiple absences. He did not want to reveal a “mental” condition, so he told management that his previous prostate cancer had returned and he was missing work because of treatments. He was asked to provide medical documentation, but he delayed. After being hospitalized because of an episode of severe depression, he informed management of the real cause of the absences. He never did produce medical documentation. He was discharged. He then sued under the ADA and FMLA. The court found no FMLA violation because of failure to provide the required medical verification. The ADA claim was dismissed. There was valid reason to fire the employee for lying to management. Had the employee been honest about the real disability, he would have probably received accommodation for the absences. His own lack of candor denied him this consideration. Prigge v. Sears Holding Co. (3rd Cir., 2011).

Employer not required to accommodate employee’s spouse. The ADA prohibits discrimination because of an employee’s or applicant’s “association” with a person with disabilities. An air-transport employee’s spouse’s autoimmune disorder, tumors and a stroke required him to devote substantial time to her care and treatment. This significantly interfered with his managing one of the company’s air terminals. He was cited for performance issues. He sued, claiming the company refused to accommodate his need to care for his wife’s disability. The court dismissed the case. The FMLA covers care of a family member. The ADA, however, requires accommodation only of the employee. The “associated” sections of the ADA do not mention accommodation; they were intended to prevent hiring or firing discrimination because of fear of higher health-insurance costs based on employees’ family members with disabilities, etc., and not to create an additional accommodation requirement. Stansberry v. Air Wisconsin Corp. (6th Cir., 2011).

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.

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