Discrimination of Disabled Individuals

How many disability based job discrimination claims are filed each year?

After a record 28,073 disability related job discrimination claims were filed in 2016, the U.S. Equal Employment Opportunity Commission is pleased to report that this figure has dropped significantly since 2017. Federal officials state that 26,838 discrimination claims based on disability were filed in 2017. Similarly, the agency saw a decrease in the number of job bias complaints.
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More and more, companies are allowing employees to work from home. Proponents of telecommuting (employers and employees alike) argue that telecommuting can cut costs, reduce turnover and actually increase productivity. Many opponents of the popular telecommuting movement insist that a team with members scattered about can't collaborate as effectively and efficiently when they're not physically located in the same office environment. In some cases, however, regardless of management’s general preferences, telecommuting may be a reasonable accommodation to a disability depending on the facts of the situation and the job’s requirements.

If an employee has a disability, as defined by the federal Americans with Disabilities Act, the employer needs to make reasonable accommodations to the employee so that person can perform the essential functions of the position.

To be qualified for the job, the employee must be able to perform the essential functions of the job with or without a reasonable accommodation. An employer need not provide an accommodation that imposes an undue hardship on running the operation.

Reasonable accommodation disputes are driven by the facts of the particular case. Telecommuting may be a reasonable accommodation to one person holding a particular job working for one employer, but it might not be reasonable for a different job for another employer.

In a recent case in the U.S. Court of Appeals for the Sixth Circuit, EEOC v. Ford, the appeals court ruled in favor of the employer and stated that for Jane Harris, an employee seeking an accommodation due to her irritable bowel syndrome, telecommuting was not a reasonable accommodation. The court agreed with the trial court and dismissed the case.

Harris worked as a resale buyer for Ford (she was an intermediary between suppliers and her company) and the court found that the work not only consisted of communications by phone and email, but personal interactions through meetings with suppliers at their sites and Ford employees at Ford sites. This personal interaction was found to be an essential function of the job, one she could not perform if she only worked at home.

If you are unsure as to your own situation, take time to consider whether others performing the same job can telecommute as that would strengthen a claim that telecommuting should be permitted as an accommodation to your disability as well. If an employer allows non-disabled employees to telecommute, but does not allow that for disabled employees, in addition to this being accommodation issue it is also disability discrimination based on the fact that a disabled employee is being prevented from enjoying equal terms and conditions of employment.

If you live in Georgia and believe that you need an accommodation at work because of your disability, the disability discrimination attorneys at Pankey & Horlock, LLC, can answer your questions and advise you of your legal rights and your employer’s responsibilities. Call today at (770) 670-6250 for a free case evaluation.

I am subject to random drug screening at my job. How will Georgia’s new medicinal marijuana law impact my employment? 

In April, 2015, the state of Georgia joined the leagues of other jurisdictions allowing the use of medicinal marijuana by citizens with a documented medical condition. While this will come as a welcome opportunity for the millions suffering from cancer-related pain, glaucoma, and other afflictions, the law has failed to address the plight of those lawful users who are “caught” with a positive drug test by their employer. However, with the help of a dedicated and progressive Atlanta employment law attorney, there may be ways to combat this delicate intersection of medical autonomy and employer rights. 

Under the new law, known as Haleigh’s Hope Act, applicants with a valid underlying medical condition will be able to obtain a permit from their physician for the use of low-potency medicinal marijuana – generally available in the form of cannabis oil. More specifically, the Act allows for the use of marijuana by patients suffering from any of the following conditions: 

• Cancer being treated by chemotherapy, or that has reached end-stage
• Amyotrophic lateral sclerosis
• Epilepsy
• Trauma-related head injuries
• Multiple sclerosis, severe or end-stage
• Parkinson’s disease, severe or end-stage
• Chrohn’s disease
• Mitochondrial disease
• Sickle Cell disease, severe or end-stage

However, despite the seemingly high thresholds imposed by the General Assembly for obtaining a lawful medicinal marijuana card, the Act fails to mention or address the duties of employers in honoring the use of medicinal marijuana, especially if doing so does not impact job performance in any way. This omission creates a distinction between the Georgia law and others, as most other states have artfully drafted their medical marijuana statutes to protect employees from workplace discrimination. 

If you are facing a difficult situation and would like to discuss your options, you may be able to circumvent workplace discrimination under Georgia’s disability protections. More specifically, employers are prohibited from discriminating against workers or engaging in adverse treatment (e.g., termination or demotion) based solely on that employee’s status as a disabled individual. Chances are, an employee meeting the definition of “medical condition” listed above may also meet the ADA definition of “disability,” which is any “physical or mental impairment that substantially limits one or more major life activity.”

If you have questions about Georgia’s new medicinal marijuana laws, or are facing backlash from your employer over the issue, please contact Pankey & Horlock today.  Our team of reputed Georgia employment lawyers can be reached at (770)670-6250.

Establishing a clear factual basis for a claim is essential to success in court.  Appellate courts are loathed to alter findings of fact and generally will only rule on errors in the application of law.  For a CVS Pharmacist, a key finding may have torpedoed his case and subsequent appeals.

CVS had terminated pharmacy staff member Weldon Williams, who suffers from Type 2 diabetes.  He brought a class action suit claiming that CVS' failure to accommodate his disability violated the Americans With Disabilities Act (ADA).  He also accused them of age discrimination because a younger employer earned more, and alleged a violation of the Family and Medical Leave Act, because CVS would not permit him to return from work after a medical leave.

CVS had argued that the plaintiff's foot pain prevented him from standing for the long periods and prevented him from performing his essential job functions. This made him ineligible for protection under the ADA.  A federal district court in Savannah, Georgia agreed and granted CVS a summary judgment. The Eleventh Circuit Court of Appeals upheld the district court's decision.

A key issue in the case was how much "accommodation" Williams had requested.  CVS said he had asked for a full-time technician to be assigned to assist him, a fact the Court of Appeals noted and relied on. 

In his petition to the United States Supreme Court, Williams said that he had never asked for a full-time technician.  The "reasonable accommodation" he sought could have meant simply transferring him to a CVS Pharmacy with more staff, he argued.  But the Supreme Court declined to review the case.

Had Williams been able to establish early on in the case that his needs could have been easily accommodated his claim of an ADA violation might have been stronger.  

If you feel you have been the victim of discrimination on the job based on disability, race, or any other reason, expert counsel can advise you on whether you have a claim and how to make the strongest case for it.

The skilled attorneys at Pankey & Horlock, LLC have effectively represented employees throughout Georgia in workplace discrimination cases.  For a free confidential case evaluation call our experienced team at (770)670-6250 today.

More than 1 million people in the United States are living with HIV. Despite efforts on the part of lawmakers to prevent discrimination in the workplace for individuals living with this disease, several recent court cases indicate that discrimination in the hiring and firing process remains prevalent across a wide array of industries.

The Americans with Disabilities Act (ADA) prohibits an employer from discriminating against a qualified candidate due to his HIV status. The Equal Employment Opportunity Commission, the federal government agency responsible for enforcing federal laws prohibiting employment discrimination, recently filed a lawsuit against Maxim Healthcare Services for refusing to hire a candidate after they learned that he was HIV positive. In the suit, the EEOC claims that the staffing service for healthcare professionals extended an offer to a qualified candidate for a position that involved sitting with patients at a local VA hospital. The offer was contingent upon the individual’s completion of a physical. The candidate underwent the examination and the health certificate clearly stated that the candidate was fit to work but it also did indicate his HIV status. The suit claims that upon reviewing the health certificate, Maxim refused to assign the candidate to the VA hospital. The EEOC is seeking an order that would prohibit Maxim from engaging in any other discriminatory hiring practices. If found to be in violation of federal law, Maxim may also be required to pay lost wages, compensatory and punitive damages, amongst other affirmative relief efforts.

Unfortunately, the Maxim case is not an isolated incident. Recent EEOC data obtained and analyzed by RH Reality Check, an online publication devoted to sexual and reproductive health and justice reporting, found that 25 cases have been filed by the EEOC over the past 10 years for discrimination on the basis of HIV and AIDS. Four of these cases are still in litigation. The report further detailed that between 1997 and 2013, the EEOC received almost 4,000 complaints from employees who had suffered discrimination based on one’s HIV or AIDS status.

For over two decades, the attorneys of Pankey & Horlock, LLC have represented employees throughout Atlanta who have faced illegal discrimination in the workplace. If you have a disability and were consequently treated unfairly during the hiring process or throughout the course of employment, you deserve justice and compensation for your suffering. Contact our knowledgeable legal team to schedule your confidential free case evaluation. Call 770-670-6250 today.

Every four years, the U.S. Equal Employment Opportunity Commission approves a Strategic Plan, which in part directs itself to develop a Strategic Enforcement Plan.  On December 17, 2012, the Commission approved the 2013-2016 Strategic Enforcement Plan with bipartisan support and a vote of 3 to 1.

Much of the Strategic Enforcement Plan, frankly, is filled with the kinds of sweeping promises and legal jargon that one might expect from a government planning document.  However, one interesting area of the Strategic Enforcement Plan is the section on “national priorities.”  In this section, the EEOC identifies a handful of legal issues relating to illegal employment discrimination that it is better able to manage and address because the groups of affected individuals are so large or because the legal issues are so unsettled.  

Eliminating Barriers in Recruitment and Hiring 
The EEOC plans to target recruiting and hiring policies that are either intentionally discriminatory or that appear to be neutral but have a greater adverse impact on protected groups of workers.  The EEOC named the following types of recruiting and hiring practices that it will examine: steering applicants into specific jobs based on race, sex, age, disability, etc.; restrictive application processes; and the use of screening tools like pre-employment tests, background checks, and date-of-birth inquiries.

Protecting the Rights of Immigrant and Migrant Workers
The EEOC stated a commitment to focus enforcement efforts on claims brought by immigrant and migrant workers, who – because of language and cultural barriers – are often unaware of their legal rights or reluctant to exercise their employment rights.

Emerging and Developing Issues
This is the most commented-on section of the EEOC’s Strategic Enforcement Plan.  The EEOC identified three emerging employment discrimination issues that it will keep a close eye on over the next four years:

• Enforcement of the Americans With Disabilities Act, especially issues relating to who is covered, how a worker qualifies for a reasonable accommodation, how a business demonstrates that an accommodation is an undue hardship, and the definition of “direct threat”
• Whether and how employers are required to respond to pregnancy-related requests for reasonable accommodations
• Whether and how Title VII’s prohibition of sex discrimination may apply in certain cases to lesbian, gay, bisexual or transgendered workers

 

Equal Pay for Women in the Workforce
Congress passed the Equal Pay Act in 1963, but the EEOC still considers enforcement of equal pay for equal work laws a high priority, especially in the form of compensation systems that appear neutral but have a greatly adverse impact on women.

Enforcing Anti-Retaliation Provisions
The EEOC is always on the lookout for employment policies and practices that discourage or prevent workers from exercising their employment rights.  The EEOC named the following policies as examples of illegal retaliation or obstruction: retaliatory actions against employees, overly broad waivers, settlement provisions that prohibit filing EEOC charges or assisting with an EEOC investigation, and failure to retain records required by EEOC regulations.

Preventing Harassment
According to the Strategic Enforcement Plan, sexual harassment in the workplace has been overtaken by other types of illegal harassment.  “Harassment claims based on race, ethnicity, religion, age and disability combined significantly outnumber even sexual harassment claims in the private and public sectors,” the plan stated.

 

The Equal Employment Opportunity Commission has settled its disability discrimination lawsuit against Garney Construction Company and Georgia Power Company.  In June 2012, the EEOC announced that Garney Construction and Georgia Power will pay $49,500 and provide additional training and guidance to employees and management regarding illegal disability discrimination.

The EEOC filed the Georgia disability discrimination lawsuit on behalf of Bryan Mimmovich, who applied for a job as a front-end loader with Garney Construction, a job he had held twice previously.  Mr. Mimmovich was diagnosed with epilepsy at age 12 and had been free of seizures for more than eight years while taking anti-seizure medication. 

Garney Construction’s contract with Georgia Power required job applicants to pass a physical examination – either the Department of Transportation (DOT) physical examination, an American Society of Mechanical Engineers (ASME) physical examination for crane operators, or another equivalent medical examination.  However, federal law does not require heavy equipment operators to pass a physical examination.  Because he was taking medication for epilepsy, Mr. Mimmovich automatically failed the DOT physical examination.  Garney Construction withdrew its job offer, stating that its contract with Georgia Power prevented it from hiring Mr. Mimmovich.

Mr. Mimmovich filed a complaint with the EEOC, which filed a lawsuit against Garney Construction and Georgia Power after failing to resolve the issue via mediation and conciliation efforts.  The EEOC’s lawsuit claimed that Garney Power illegally discriminated against Mr. Mimmovich because of his disability and that Georgia Power illegally interfered with Mr. Mimmovich’s employment relationship with Garney Construction by requiring Garney to refuse to hire Mr. Mimmovich when he failed the DOT physical examination instead of requiring Garney Construction to offer Mr. Mimmovich an individualized assessment of his ability to perform the job of front-end loader operator.

To settle the lawsuit, Garney Construction and Georgia Power will pay $49,500 to Mr. Mimmovich.  Both companies will also re-distribute anti-discrimination policies and schedule employee training regarding disability discrimination and pre-employment physicals.

Employers who use pre-employment physical examinations to screen potential employees should take care to ensure that these examinations do not illegally exclude applicants who are actually qualified to perform the job for which they are applying.  Employers should consider offering individual employment assessments to applicants with disabilities and should seek qualified legal advice to answer any questions that arise during the hiring process.

 

Under federal law, discrimination on the basis of disability is prohibited in all employment practices. Disabled individuals are protected by the Americans with Disabilities Act (the ADA). By law, covered employers (those employing more than 15 employees), as well as all state and local governments, cannot discriminate against people with disabilities in employment. The ADA also requires employers to provide reasonable accommodations to a qualified employee or a job applicant with a disability, unless it would cause undue hardship to the employer.

 

What qualifies as a disability for the ADA?

Under the ADA, a person who has a physical or mental impairment that substantially limits one or more major life activities and has a record of such impairment, is considered as having a disability. Major life activities are basic activities that most people can perform without difficulty, such as breathing, eating, walking, hearing, speaking, seeing and learning. Major life activities also include basic bodily functions such as cell growth, brain functions, and neurological and endocrine functions.

 

Who is a “Qualified” Employee or Job Applicant?

An individual with a disability is “qualified” if he or she satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position. Obviously, a person who was paralyzed would not be qualified for a job that required lots of lifting, but may be qualified for a job as an administrative assistant.

 

What is Reasonable Accommodation?

Employers are required to provide reasonable accommodation to a qualified disabled employee or applicant. Reasonable accommodation may include making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. However, an employer is not required to lower production standards to make an accommodation.

 

Undue Hardship

An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an “undue hardship” on the operation of the employer's business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation.

 

Prohibited Inquiries and Examinations

Before offering a job applicant a job, an employer may not ask about the existence, nature, or severity of a disability.  Generally, applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with necessity.