Patti's Blog - Advocate for Elders, People with Disabilities and Their Families

Disabilities: Employee claims retaliation for accommodation request

Excerpt from: Compliance Tools for HR Professionals (click for full article)

 

During "Edward's" first 8 years of employment with MIT, he was disciplined only once. After February 2005, however, he received several verbal and written warnings and was suspended for a variety of infractions, including insubordination, failing to complete assignments, leaving his post without proper coverage, and abuse of MIT’s sick leave policy. He was reprimanded three times in August 2007 alone.

After returning from a 2-week vacation, Edward received a letter notifying him that his employment was terminated for disciplinary issues and for having left his post while a piece of equipment was in the start-up process, a common practice among the engineers.

Edward filed suit, alleging, among other things, handicap discrimination and retaliation. A Superior Court judge awarded summary judgment in favor of MIT on both counts. Edward appealed.

What the court said. The Supreme Judicial Court reversed on the handicap discrimination and retaliation counts. “This is not to say that MIT in fact discriminated or retaliated against … [Edward]. That is a question for the jury on which we express no opinion. We hold only that the evidence is sufficient to raise genuine issues of material fact that preclude the award of summary judgment” on those counts. O’Brien v. Massachusetts Institute of Technology, et al., Massachusetts Supreme Judicial Court, No. 11-P-45 (9/25/12).

Point to remember: Employers must take care not to retaliate against employees who request work restrictions or accommodations.

Marijuana at Work: Washington’s Initiative 502

Excerpt from: Employment Law Update (click for full article)

 

In light of the passage of Initiative 502, can Washington State employers continue to have policies prohibiting being under the influence of, or possession and use of, marijuana at work?  The short answer is “probably yes.”  Just because something is legal does not mean that employers are required to allow it.  The text of I-502 does not prohibit employers from having policies limiting or prohibiting marijuana possession or use.  The relevant portions of the new law decriminalize certain aspects of possession and use under state law, but there is nothing in I-502 that would prohibit an employer from having rules about intoxication, possession and/or use of marijuana just like employers can limit other legal substances, such as by prohibiting the consumption of alcohol or being under the influence of alcohol during work hours, or by prohibiting employees from using tobacco products. 

The Washington State Supreme Court addressed the issue of marijuana use in employment in a slightly different context after the Washington State Medical Use of Marijuana Act (“MUMA”) was adopted.  In Roe v. Teletech Customer Care Management, the Court decided that MUMA does not provide a private cause of action for discharge of an employee who uses medical marijuana, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.

Employers' Duties When Injury Affects Ability to Perform Discussed

Excerpt from: Bloomberg BNA (click for full article)

 

The Americans with Disabilities Act is an “inadvertent leave law” so employers considering workers' leave requests must be aware that a qualified employee with a disability may be entitled to leave as a reasonable accommodation after exhausting Family and Medical Leave Act leave, EEOC Commissioner Chai Feldblum told an American Bar Association meeting Nov. 2.

Speaking at the ABA Section of Labor and Employment Law's annual conference, Feldblum said “reasonable accommodation” originally developed under Title VII of the 1964 Civil Rights Act when a job requirement conflicted with an employee's religious beliefs. The U.S. Supreme Court ruled an employer must reasonably accommodate an employee's religious beliefs absent “undue hardship” to the employer, but the court set the undue hardship bar relatively low in the religious discrimination context, Feldblum said.

Supreme Court To Weigh Constitutionality Of Voting Rights Act

Excerpt from: NPR (click for full article)

 

The Supreme Court has agreed to weigh the constitutionality of the decision by Congress in 2006 to reauthorize the Voting Rights Act, the landmark Civil Rights legislation enacted in 1965 that let millions of African-Americans cast ballots for the first time in states that had long blocked them from voting booths.

The case the court is taking has been brought by Shelby County, Alabama.

Mountain Law: What is the Lilly Ledbetter Fair Pay Act?

Excerpt from: Summit Daily (click for full article)

 

President Obama touted at one of the recent debates his accomplishment of signing into law the Lilly Ledbetter Fair Pay Act of 2009. What is the act and what does it do?

To provide some background, Ledbetter was employed by Goodyear Tire & Rubber Company from 1979 until 1998. After retiring in 1998, she filed a claim against Goodyear under Title VII (the federal discrimination statute) alleging that she had been denied pay raises a number of times during her employment because of sexual discrimination. As a result, she was earning significantly less than her male counterparts at the end of her time with the company. At trial, the jury found in Ledbetter's favor and awarded her back pay and other damages. Goodyear then appealed the case on the basis that Title VII requires claims to be made within a few months after alleged discrimination occurs and Ledbetter did not show that any discrimination occurred during this period before she made her claim. In response, Ledbetter argued that each lower paycheck she received was discriminatory because it reflected the company's past discriminatory actions.

The case ultimately reached the Supreme Court, which found in a four to five decision in 2007 that Ledbetter's claim was untimely under Title VII. In reaching this decision, the court focused on when the discrimination itself occurred, not when the impact was felt. It found that a person must show that discrimination itself occurred during the few months allowed for a Title VII claim, not just that the impact of the discrimination occurred during that period (e.g. in the form of lower paychecks). Otherwise, Ledbetter could make a claim in 1998 for Goodyear's discrimination in 1979 because the impact was felt in 1998. The court concluded that, when Congress imposed the strict Title VII claims period, it did not intend to allow claims for actions occurring outside the claims period.

Congress did not agree with the Supreme Court's interpretation of Title VII, so it passed the act in direct response to, and for the purpose of reversing, the Supreme Court's decision. The act specifically expressed Congress's belief that the decision “unduly restrict[ed] the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.” As a result, the act amended Title VII, the Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973 so that the time for an employee to make a claim against an employer for illegal practices resulting in unequal pay or benefits under any of those laws can run from when the employee receives the unequal pay or benefits. The act would allow Ledbetter to make a claim against Goodyear for discrimination resulting in unequal pay so long as she made the claim within a few months after receiving her last paycheck with the unequal pay. The act is retroactive to May 28, 2007, meaning it would include any illegal employment practice that occurred before May 2007 if it resulted in lower pay or poorer benefits the employee was still receiving as of May 28, 2007.

Proponents of the act trumpet that it greatly expands the time in which employees can make claims for pay discrimination, which is necessary given the difficulty of discovering pay disparity. In contrast, critics of the law bemoan that it overturns longstanding Supreme Court precedent and will expose employers to stale claims that may be difficult to defend given the passage of time. As with many laws, where people stand may depend on where they sit.

Philadelphia CityPaper on Pennsylvania Olmstead Litigation

Excerpt from: Philadelphia CityPaper on Pennsylvania Olmstead Litigation  (click for full article)

 

That’s because, as part of a legal settlement signed last year, the Department of Public Welfare (DPW) agreed to begin moving certain people with intellectual disabilities out of ICFs and into community-based settings, typically small-group homes. Solano and seven other guardians of people living in ICFs are suing in federal court to intervene in the settlement. “People trusted the Department of Public Welfare. They feel betrayed,” says Solano, who believes the state facility is the best place for his sister and some others like her.

The thing is, the conventional wisdom says otherwise — and so do disability-rights advocates, the state and even the federal government, which operates under the Americans with Disabilities Act as well as a Supreme Court decision known as Olmstead, both of which bar states from segregating people with disabilities into institutions if they can live elsewhere. “Almost 100 percent of professionals in this field believe that people are better served in their communities than in institutions, period,” says Maureen Cronin, executive director of the Arc of Pennsylvania, which advocates for the disabled.

The thing is, DRN managing attorney Robert Meek says Solano’s concerns are beside the point: The goal of his class-action lawsuit was never to force anyone out of ICF care. “This case was not about people who don’t want to move [or whose guardians don’t want them to move]. The case was about the state’s failure to offer community-based services to people. If you’re opposed to moving into the community, you’re not a member of the class.”