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Organ Donors Eligible for Disability Benefits

Disability Discrimination, Employee Discrimination, Wrongful Termination , , , , , ,

Non Compete AgreementsCalifornia disability law allows those who are associated with disabled individuals to receive protection against disability discrimination. In this post, we will use a past case from the California Courts of Appeal to demonstrates this protection. In this case, a man who planned to donate a kidney to his disabled sister won a disability discrimination appeal.

In Rope v. Auto-Chlor System of Washington, Inc. a recently hired employee informed his employer, Auto-Chlor, that he intended to donate his kidney to his disabled sister. The employee then attempted to take time off under a new law associated with such cases, known as the Michelle Maykin Memorial Donation Protection Act (DPA). The employee’s manager did not respond to his request to take leave, so the employee complained to management. However, just two days before the law took official effect, Auto-Chlor terminated the employee for allegedly “poor performance.”

The Employee’s Claim

The employee then sued Auto-Chlor for several violations including associational disability discrimination, retaliation for a protected activity, violation of the DPA, and wrongful termination in violation of public policy. The trial court dismissed the employee’s claims but the court of appeals reversed the decision, allowing the associational disability discrimination and wrongful termination claims to proceed.

California Court of Appeal’s Decision

The California Court of Appeals decided that the employee had provided enough evidence to show that the employer had discriminated against him. The discrimination was determined to be based on his relationship to his disabled sister and the fact that the employee would soon become disabled himself after the kidney donation surgery was complete. These facts could have supported a claim for wrongful termination and associational discrimination.

What Is Associational Discrimination?

Associational discrimination claims are a powerful tool to fight discrimination in the workplace. Such claims cover situations in which the employer takes adverse action (such as termination or harassment) against the employee for a disability that an employee’s close family member or spouse has. It also covers claims as the one in Rope discussed above, where the employer fears incurring expenses due to the employee’s association with a disabled person. It is possible that an employer may fear that due to the relationship with the disabled family member, the employee will have to take time off to care for them, or possibly raise the costs of the employer-sponsored medical benefits plan.

Keep in mind that the employer here seemed to be trying to illegally discriminate against the employee before the new law that would have protected him took effect. Today, this would be much more difficult as the DPA is now in full effect and protects employees by allowing them to take 30 days off in order to donate organs.

If you have been the victim of discrimination contact an experienced attorney right away. Call attorney Michelle Baker at (858) 452-0093 or submit your information online for a Free Consultation.

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When is Reasonable Disability Accommodation Required?

Disability Discrimination , , , , ,

DisabilityBoth the Americans with Disabilities Act and the Fair Employment and Housing Act (FEHA) require employers to make reasonable accommodations for their disabled employees and job applicants. These accommodations can range between accommodations like giving the employee a special tool, providing the employee with extra breaks, or even allowing the employee to take leave or work from home.

An employee is not required to specifically ask for “reasonable accommodations” or to even figure out what the accommodation would be. The employer has a duty to engage with the employee in the process of figuring out what a reasonable accommodation would entail, this is called engaging in the interactive process.

Exceptions to Reasonable Accommodation Requirements

An employer is not required to provide reasonable accommodations in a few limited circumstances. First an employer is not required hire or employ an individual who will endanger the health and safety of themselves or others because they will be unable to perform the essential duties of the job. The essential functions of a job are the duties that are necessary due to one or more of the following:

  1. The reason the position exists is to perform the function at issue.
  2. The amount of employees available to perform that function is limited.
  3. The function is highly specialized and the individual is hired for his or her ability or expertise in performing the function.

Whether a job duty is an essential one is a fact intensive question and can bring up a significant amount of debate. In determining whether a job function is essential the following factors are relevant: the employer’s judgment, the job description, the amount of time the individual performs the job function, the work experience of past individuals in the job category, the current work experience of individuals in the job category, and the terms of any associated collective bargaining agreement.

Reasonable accommodation is also not required if an employee suffers from alcoholism and they perform alcoholism-related misconduct. For example, in the case of Gonzalez v State Personnel Bd. (1995), an employee was absent without leave on several occasions, was proved to be an alcoholic, and was justifiably terminated.

Disability discrimination is a major problem. Legally confronting it enforces your right to be free from discrimination also helps others by preventing employers from engaging in discrimination the future. To learn more about how to get monetary recovery for disability discrimination, contact employment lawyer Michelle Baker today. Schedule your free consultation by calling (858) 452-0093.

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EEOC Disability Guidelines: Part 2

Employee Discrimination , , , , ,

family-medical-leave-actThis post is the second in our two-part December blog series highlighting key aspects of the EEOC’s interpretation of the Americans with Disabilities Act (ADA). Today we will focus specifically on the ADA’s interpretation of intellectual disability and severe illness disability.

Intellectual Disability

2.5 million Americans have been diagnosed with an intellectual disability. However, just as with all other disabilities, the ability to ask an applicant or employee about the disability are very limited. However, once an individual with an intellectual disability is hired an employer may ask about an employee’s intellectual disability to the extent necessary to support the request for a reasonable accommodation, to verify the use of sick leave related to the disability, and for the employee to participate in a wellness program.

Accommodations for intellectual disabilities include not only on the job accommodations, but also application accommodations such as:

  • Providing a reader or interpreter to process complex information for the applicant with the disability.
  • Showing, rather than explaining what the job requires.
  • Providing modified tests, manuals, or training materials.

Individuals with intellectual disabilities also may be entitled to reasonable accommodations on the job including, but not limited to:

  • Reassigning marginal tasks to another employee
  • Providing more detailed, slower, and more extensive training on the job
  • Provide a tape recorder so that the employee can record tasks
  • Acquire other equipment to assist an employee in performing the duties of the job
  • Provide a job coach
  • Modify a work schedule

These accommodations can be requested by anyone other than the employee.

Severe Illness Disability

The EEOC does not provide as robust of an interpretation for individuals with severe illness diagnosis, such as cancer patients. However, it does list a number of special accommodations related to such cased, including:

  • Leave for doctors’ appointments
  • A private area to rest or for periodic breaks
  • Permission to work from home
  • Changes in office temperature

The EEOC also lists the job accommodation network as an additional resource, which provides a list of accommodations for many types of disabilities.

If you have been discriminated against by an employer, former employer, or potential employer due to your disability or perceived disability, contact California employment law attorney Michelle Baker right away. You may be entitled to a lawsuit or settlement for an employer’s discrimination or discriminatory practices. To learn more, schedule a free consultation online or us at call (858) 452-0093.

 

 

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EEOC Disability Guidelines: Part 1

Employee Discrimination , , , , ,

CFRAThis blog is the first of a two-part series this month that will explore the Equal Employment Opportunity Commission guidelines regarding how specific diagnosis may be handled under the Americans with Disabilities Act (ADA). In this post, we will highlight some of the key aspects of the EEOC’s guidelines when it comes to disability.

Diabetes Disability

The EEOC says that most people with diabetes should have no problem being considered disabled for the purposes of the ADA because most people with diabetes are limited in one or more major life activities.

The EEOC guidelines state that an employer may not ask a job applicant questions about diabetes. However, if the applicant voluntarily provides the information the employer may ask follow-up questions such as whether the applicant uses insulin or experiences episodes of hypoglycemia, or whether the applicant will need assistance when her or his blood sugar drops. Additionally, the employer may question whether reasonable accommodation would be necessary if the applicant has an obvious disability.

An employer may also ask disability related questions if performance on the job becomes an issue after being hired. For example, if an employee experiences extreme fatigue or irritability the employer may ask questions as to the reason why. If an employer feels that an employee may be unable to perform the job or poses a direct threat to him or herself or others then the employer may ask for medical information about the employee’s condition. However, the employer is only allowed to obtain enough information as necessary to ensure that the employee can perform the duties of the job safely.

The guidelines also go on to list a number of accommodations that employees with diabetes may require, including:

  • A private location to test insulin levels
  • A place to rest when blood sugar becomes abnormal
  • Breaks to drink, eat, take medication, or test blood sugar
  • A leave of absence for treatment, or to obtain training on managing diabetes
  • Modified work schedules
  • Distribution of inessential tasks to other workers
  • Reassignment to a vacant position, with equivalent status and pay

Epilepsy Disability

As with diabetes, an employer may not ask disability related questions, except if the applicant voluntarily brings it up or the disability is obvious. The EEOC also requires that employers who know an employee has epilepsy, keep the information confidential even if the employee suffers a seizure on the job. Accommodations for epilepsy include:

  • Breaks for ingesting medication
  • Leave of absence to adjust to a new medication regimen or to recuperate from treatment
  • A private area to recover from a seizure
  • A cushion to break a fall
  • Work schedule adjustments

If you have been discriminated against by your employer due to a disability, stand up and fight discrimination. Contact employment law attorney Michelle Baker as soon as possible. Schedule your free consultation online or call (858) 452-0093 today.

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How Long do You Have to File a Disability Discrimination Lawsuit?

Employee Discrimination , , , , , , , ,

CA Labor board claims_HOMEIf you are currently deciding whether or not to file a disability discrimination lawsuit against your current or former employer, know that there are time limitations you should be aware of regarding your legal complaint.

An employee must first receive a right to sue letter from the Department of Fair Employment and Housing (DFEH) prior to filing a disability discrimination lawsuit. An employee generally has 1 year from the time of the violation to file this charge. This 1-year period is known as the first statute of limitations. After receiving the “right to sue” letter, an employee has another 1-year period within which he or she can sue the employer. This is known as the second statute of limitations.

As with any law, there are exceptions, and they can get rather complicated. There are two major exceptions to these rules: the continuing violations doctrine and equitable tolling.

Continuing Violations Doctrine

The Continuing Violations Doctrine essentially depends on whether the incident was “discrete” or “ongoing.” The doctrine allows employees to bring a charge to DFEH more than 1 year after discrimination occurred if the charge involves continuing discrimination and is brought within 1 year after the discriminatory behavior stopped. For most one-time instances of discrimination, such as firing or failing to hire or promote, the continuing violations doctrine will not apply. The doctrine will only apply to cases where discrimination is ongoing to a specific individual, even if most of the discrimination occurred more than 1 year before filing a charge. In practice, this usually means that the 1 year period does not actually start running until the employee quits, is terminated, or the employee responsible for the discrimination is terminated or leaves.

Equitable Tolling Doctrine

The Equitable Tolling Doctrine is a principal created by judges that seeks to impose fairness on statutes of limitations. It can potentially apply in many situations; however in practice it is usually effective in two specific situations. The first is when an employee files a charge with the federal equivalent of DFEH, the Equal Employment Opportunity Commission (EEOC). If DFEH gives the employee a right to sue letter, but the employee also files a charge with the EEOC, the 1 year period does not run for the duration of the EEOC’s investigation.

The second situation is when the employee is following internal grievance procedures. For example, if an employee suffers disability discrimination, they may bring a formal grievance charge, which will prevent the 1 year period from running during the pending grievance. However, there are limitations. The grievance system must have a hearing where the employee is able to present their claim and evidence of the discrimination.

Contact a Discrimination Disability Lawyer

To learn more about your rights under disability discrimination law, call California employment attorney of Michelle Baker today. Give us a call at (858) 452-0093 or use our online submission form to schedule a Free Consultation.

 

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EEOC Wins Case for Man With Disabled Family Member

Employee Discrimination , , , , , , ,

Age discriminationA recently settled case out of Texas demonstrates that if you have a disabled individual in your immediate family, you may qualify for protection under the Americans with Disabilities Act (ADA). The case clearly demonstrated that an employer may not base his or her employment decisions on your association with the disabled family member.

The Case: EEOC v. DynMcDermott Petroleum Operations Company

In EEOC v. DynMcDermott Petroleum Operations Company, an employee worked for DynMcDermott (DM) as a planner and scheduler. He was laid off in 2003, but was later encouraged to reapply in 2007 after his wife developed terminal cancer. He applied, and the supervisor, Ray Wood, identified the former employee as the best qualified candidate. However, the site director, Tim Lewis, believed that the former employee should not be rehired because of his wife’s cancer, which would require him to spend time at home, and because he believed DM had too many older employees already. At the time the former employee was 56.

The site director then sent an email to the former employee explaining that even though others had wanted to hire him, he could not be hired because of his age, health problems, wife’s cancer, and former attendance problems. Wood told Lewis that the actions were illegal; Lewis disciplined Wood for insubordination as a result. But Wood nevertheless scheduled an interview with the former employee, who was allegedly the only qualified applicant. Nevertheless, another applicant, who was 34 years old was also interviewed and received the job offer.

A Violation of the Americans with Disabilities Act

The Equal Employment Opportunity Commission (EEOC) then brought a lawsuit on the former employee’s behalf, alleging the DM had violated the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act. During the lawsuit, the site director admitted that when the employee worked for DM he had not had attendance problems.

DM first won the case at the district court, which based its ruling on the fact that Wood made the actual hiring, rather than Lewis. However, the 5th Circuit Court of Appeals reversed the decision, requiring the case to go to a jury because as Wood’s supervisor, Lewis exercised a significant amount of influence over Wood. The 5th Circuit believed that it was enough that Lewis mentioned the former employee’s disabled wife and age as factors in the decision.

This case demonstrates that one does not need to be disabled in order to qualify for protection under ADA. Association with a disabled person is enough to qualify for protection. To learn more about your rights under disability discrimination law, contact California employment attorney Michelle Baker today. Call us at (858) 452-0093 or use our online form to schedule your Free Consultation.

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When Obesity Discrimination is Illegal Disability Discrimination

Employee Discrimination , , , , ,

In certain California cities, including San Francisco and Santa Cruz, city officials and government contractors cannot discriminate against employees and job applicants based on their weight. In some situations an individual struggling with obesity can file a lawsuit under federal law when an employer or potential employer makes a decision against them based on their weight. However, note that under California law, weight and obesity discrimination is generally not illegal without additional physiological complications.

Protection at the State and Federal Levels

Both federal and California law protects individuals with disabilities or perceived disabilities from discrimination. At the federal level, the Americans with Disabilities Act (ADA) is an anti-discrimination law that defines disability as a condition that substantially limits one or several major life activities. In some cases Obesity might be classifiable as a disability under ADA. The department responsible for implementing ADA, the Equal Employment Opportunities Commission (EEOC), won a settlement against an employer in 2012 after a federal court agreed that obesity impairs major life activities including walking, digesting, and bending. See EEOC v. Resources for Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011).

By comparison, California law is generally stricter than federal law. Under California employment discrimination law an employee must also show that if a major life activity is impaired, that the impairment is due to a physiological condition. This means that obesity must result from a physiological disorder to be considered a disability under California law; it must not merely be a condition resulting from an individual’s voluntary action or inaction.

The Importance of Proving Your Physiological Condition

As a result, California courts have been much more reluctant to allow obesity to be claimed as a disability than Federal courts. For example, in the case of Cassista v. Community Foods, Inc, 5 Cal. 4th 1050 (1993) a woman struggling with obesity applied to work at a grocery store. The store rejected her application and told her that they were concerned she would not be able to perform the necessary functions of the job because she was obese. The woman sued the store under California disability law, but the Supreme Court of California held that the woman failed to show that she had an underlying physiological disorder that caused her obesity or that the store believed she had such an underlying disorder.

When employers discriminate against job applicants or employees due to a disability the employer may be subject to liability. If you think you have been discriminated against in any way, find out how to get the justice you deserve by contacting experienced employment lawyer Michelle Baker today. Call (858) 452-0093 now to begin your free case evaluation.

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The Interaction Between Disability Benefits and Disability Law

Employee Discrimination , , , ,

Disability DiscriminationSometimes when an employee becomes injured they qualify for protections under state or federal disability law. However, this can present complications when the employee also seeks disability related benefits through state or private insurance. In a recent case the 9th Circuit Court of Appeals reviewed whether an employee who claims total disability for the purpose of disability benefits can also be protected under the Americans with Disabilities Act (ADA).

Smith v. Clark

In Smith v. Clark County School District a school employee, Smith, suffered a back injury. She then applied for disability benefits under Nevada’s Public Employee’s Retirement System (PERS) as well as medical benefits from her insurance.

Smith also applied for Family and Medical Leave Act (FMLA) leave. On Smith’s FMLA application her doctor stated that Smith was presently incapacitated and was unable to work until she received further notice by a doctor. Smith stated on her application for disability benefits under PERS that she was completely unable to work due to her injury.

However, during this time Smith also negotiated with the school over when she could return to work. Smith claimed that she could work as a literary specialist but not as a teacher. The district offered Smith a position as a teacher with accommodations, but not a literary specialist position. Smith declined this offer.

Smith then sued the school in federal court alleging violations of ADA for failing to provide her with reasonable accommodations for the literary specialist position. The court dismissed the lawsuit because Smith stated that she was permanently disabled, meaning she could not do the work.

The Ninth Circuit’s Decision

When the case reached The Ninth Circuit, they reversed the decision. The mere fact that Smith had made inconsistent statements in the PERS application was not seen as conclusive that she was totally disabled and could not perform essential job functions. In other words, the fact that Smith was totally disabled for the purposes of PERS disability benefits, but at the same time told the district that she could perform the duties of a literary specialist could not be used against her. The reasoning was because the claim for disability benefits under PERS did not take into consideration whether reasonable accommodations could make employment a possibility for Smith.

If you have experienced disability discrimination, you may be entitled to compensation. To learn more contact Michelle Baker at Baker Law Group, LLP. Schedule your free consultation today by calling (858) 452-0093.

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Reasonable Accommodation and the Interactive Process in Disability Cases

Employee Discrimination , ,

ADA ActOne of the biggest sources of conflict between disabled employees and their employers is deciding whether to grant an employee a reasonable accommodation as required by the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).

What is the Interactive Process?

The interactive process is a shorthand way of describing the informal negotiations that occur between an employer and employee as they attempt to find a reasonable solution under ADA and FEHA. This process is critically important because if an employer fails to engage in the interactive process, the refusal to engage can be seen as a violation of disability law in and of itself.

Although there are no set guidelines for how the interactive process should work, it is critical that the employer take steps to work with the employee and to ensure that he or she is notified of the existence of a reasonable accommodation.

Problems that can arise during the interactive process include when the communications between employer and employee come to an impasse or breakdown. For example, if the employer refuses to discuss options or rejects accommodations without reason, despite the proposal being clearly simple fixes and not constituting an undue hardship. In these situations an employer may become liable for failure to engage in the interactive process under California law.

The Case of Wysinger v. Automobile Club of Southern California

For example, in the case of Wysinger v. Automobile Club of Southern California (AAA) (2007) 157 Cal. App. 4th 413 an employee, Wysinger, suffered from lupus and rheumatoid arthritis. After his employer AAA instituted plans to reduce the pay of senior employees, he filed an age discrimination claim and also a claim that the employer failed to reasonably accommodate his disabilities because it failed to discuss options in reducing his commute time. Wysinger had requested a transfer in order to reduce his commute time; however AAA rejected this and did not raise any other possibilities.

The California Court of Appeals found that AAA could not rely on its rejection of Wysinger’s suggestion and claim that Wysinger had the burden to request other reasonable accommodations because it is not up to an employee to request multiple types of accommodation that an employer may choose from. The court upheld that under FEHA failure to engage in the interactive process can be seen as a separate claim from failure to provide reasonable accommodations.

If you have a disability and your employer or former employer failed to discuss reasonable accommodations with you after you told them you needed accommodation, you may be entitled to damages. To learn more, contact the experienced California Employment law attorney Michelle Baker. Schedule your free consultation today by calling (858) 452-0093.

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Disability Discrimination Lawsuits Do Not Necessarily Result in Termination

Employee Discrimination , ,

One of the most easily misunderstood topics in discrimination law—including disability discrimination and retaliation lawsuits—is what actions actually constitute discrimination. In regards to disability discrimination, the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) offer two different definitions for discriminatory actions.

Discrimination According to FEHA

FEHA specifically lists actions that would be discriminatory under Government Code Section 12940, subd. (a). It includes all of the following employer actions that may be motivated by an individual’s perceived disability:

  • Refusing to hire;
  • Refusing to train for a program that would lead to employment;
  • Firing from a job or training program that would lead to employment;
  • Or discriminating in the terms of employment including compensation, conditions, or privileges.

Discrimination According to ADA

ADA, on the other hand, leaves the definition of “discrimination” open to more interpretation. ADA’s list of discriminatory acts includes the above list, but also includes discrimination in regards to job application procedures and job training. Additionally, Section 12112 of ADA forbids acts based on a job applicant’s disability that limits, segregates, or classifies the job applicant in a way that would “adversely affect the opportunities or status” of the applicant.

DisabilityAn Example from the California Court of Appeals

The California Court of Appeals recently reviewed a case that showed the limits of what an adverse employment action could be under California law. In the case of Jeffrey v. Temple City, 2013 WL 501426, (Feb. 11, 2013) an employee, Randolph Jeffery, brought a disability discrimination claim under FEHA. Jeffrey was a custodian for the Temple City School District who claimed that he was terminated from the school district after receiving a serious injury from a car accident. Jeffrey claimed that he was terminated directly because of the disability he received in the car accident.

However, the School District argued that it did not in fact terminate Jeffery. Rather, they sent Jeffrey a letter saying that he would be placed on a 39-month rehiring list, and that at the end of the 39 months Jeffrey would be rehired. However, Jeffery said that he believed that he was being terminated because the title of the letter he received read: “RE: Termination of Employment.” Ultimately, the court held that getting placed on a rehiring list in this case was not an act of discrimination, because Jeffrey could not prove that he could do his job duties with reasonable accommodation, and being placed on the list was not actually a termination because he was to be rehired at a later date.

The Jeffrey case demonstrates the limits of what a discriminatory action can be, but it also demonstrates the importance of getting legal advice as soon as possible to help you understand the full extent of your rights. If you have been the victim of discrimination contact an experienced attorney right away. Contact the experienced California attorneys of Baker Law Group, LLP today for a FREE Consultation.