Is it legal under the ADA to mandate that an employee accused of sexual harassment use the company's employee assistance program? That's the question being asked in a lawsuit the EEOC just filed against Weis Markets.
Thursday, October 26, 2023
Workplace harassment and employee assistance programs
Is it legal under the ADA to mandate that an employee accused of sexual harassment use the company's employee assistance program? That's the question being asked in a lawsuit the EEOC just filed against Weis Markets.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, October 19, 2023
Failure to advise employer of a disability dooms employee’s ADA claim
True or false — An employer must always reasonably accommodate an employee’s disability if necessary to permit the employee to perform the essential functions of the job unless it causes an undue hardship on the employer?
Answer — False. An employer does not have an obligation to grant a reasonable accommodation that an employee never requests.
Case in point: Mueck v. La Grange Acquisitions.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 7, 2023
Can you hear me now?! Jury awards deaf truck driver $36M in disability discrimination lawsuit
$36 million is a number large enough to get anyone's attention. It certainly got the attention of Drivers Management, LLC and Werner Enterprises, Inc., after a federal jury awarded the EEOC that amount in a disability discrimination lawsuit it filed on behalf of Victor Robinson, a deaf truck driver, denied employment because of his disability.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, July 13, 2023
A disabled employee is entitled to a “reasonable” accommodation, not a “preferred” accommodation
Jay Hannah worked as a package delivery driver for UPS. He developed hip bursitis, which caused pain in his lower back, hip, and buttocks. As a result, he requested two alternative reasonable accommodations: either that UPS allow him to drive his route with a smaller truck with softer suspension or that UPS reassign him to a non-driving inside job.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, July 11, 2023
“Geographical discrimination” is NOT a thing
"If you don’t relocate and return to in-person work, we’re going to have to let you go." Many employers are having this very conversation with their remote employees. Some employees who want to continue working remotely are starting to push back.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 29, 2023
Wal-Mart (allegedly) did a 💩 job of accommodating this employee
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 15, 2023
EEOC lawsuit highlights risks associated with not accommodating service animals
The EEOC has filed a disability discrimination lawsuit against Papa John's Pizza claiming that it denied the request of Michael Barnes, who is blind, to bring his service dog — Indie, a black lab — with him to work. After denying his request, the agency alleges, the pizza company fired Barnes.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 8, 2023
Someone needs to take away Elon Musk’s twitter access
The reality is that this guy (who is independently wealthy) did no actual work, claimed as his excuse that he had a disability that prevented him from typing, yet was simultaneously tweeting up a storm.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 8, 2023
Post-termination diagnosis is insufficient to support ADA claim
Haley Hrdlicka, a 30-year General Motors employee, began having attendance problems after transferring to its Design Academy. Serious attendance problems. Dozens of absences in the four-month period from May – August 2019. A less-than-glowing performance review followed by an "Attendance Letter" (essentially a final written warning) did nothing to improve her attendance. So GM fired her.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 25, 2023
Offensive social media posts doom airline employee’s discrimination claim
"If I were Black in America, I think I'd get down on my knees every day and thank my lucky stars that my ancestors were brought over here as slaves."
"Have you lost your cotton pickin' mind?"
"Too many [blue-eyed people] are reproducing with Brown Eyed People."
Those are three examples of Colleen Koslosky's (a former American Airlines customer service agent) Facebook posts that went viral and caused her employer to fire her.
She claimed the airline fired her because of her disability — nerve damage and edema in her leg — based on its prior denial of a reasonable accommodation. The employer, on the other hand, argued that it properly fired her after Koslosky's posts went viral, customers complained, and employees refused to work with someone they believed was "racist."
The 3rd Circuit Court of Appeals had little difficultly affirming the dismissal of Koslosky's lawsuit.
She … claims that a male American customer service employee who was not disciplined for his social media posts disparaging Trump voters — calling them "ignorant rednecks" and "uneducated racist white people." Koslosky does not argue American management knew about her colleague's inflammatory social media posts. This is dispositive. …
As Koslosky points to no evidence of pretext, we are thus left with one conclusion: American fired her because her racially insensitive social media posts violated its policies and generated an outcry from employees and customers alike. Because this is a legitimate justification for her ouster, we are not persuaded that the company violated any law here.
This employee had no business keeping her job or winning a discrimination lawsuit. Employees are absolutely responsible for what the post on their personal social media, and need to understand that their employer can, should, and will hold them accountable when warranted. In this case, it was warranted.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, December 15, 2022
Reasonable accommodations are for actual disabilities, not unhinged conspiracies
If I've learned one thing from my 25+ years of practicing law it's that when a court describes your arguments as a "rambling and hyperbolic tirade," your goose is cooked.
This is the story of Meltzer v. The Trial Court of the Commonwealth, by John Bello, Administrator.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, November 10, 2022
Muckenfuss makes a mask fuss
Michael Muckenfuss worked in maintenance at a Tyson Fresh Meats facility. When the Covid-19 pandemic began, the town's mayor instituted an executive order mandating the wearing of masks, which Tyson enforced inside the workplace. Muckenfuss presented Tyson with a note from his health care provider requesting that he wear a cloth mask with a filter instead of a surgical mask as a reasonable accommodation for his asthma. Tyson agreed to the accommodation. Muckenfuss later sued, however, claiming that Tyson kept the mask mandate in place, along with his filtered mask, after the Covid executive order expired.
This statute was aimed to prohibit the introduction of a device "into" the body. Wearing a mask on one's face isn't that.… Mr. Muckenfuss invites an interpretation that would render this statute absurd.… [H]is interpretation would suddenly prohibit all sorts of sensible mandates by employers. No longer could a company require a bleeding employee from wearing a bandage or band-aid "against" his wound. No longer could a company require an employee to wear a protective glove, or work boots, or goggles, or many types of personal protective equipment because they were likewise designed to be used "against" the body.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, October 20, 2022
Ageist and ableist statements to 58-year-old disabled employee doom employer’s discrimination defense
"I'm tired of disabilities and I'm tired of medical problems."
"I'm not running a rehabilitation clinic."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 15, 2022
Pre-employment pregnancy testing?
I was tagged on Twitter to address this situation.
My friend did a drug test for a part time job for the local school district. When she got her results, she found out that the district also did a pregnancy test. Besides ethical issues, this seems like a legal red flag given she wasn't told this would be done.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 14, 2022
Lyfting independent contractor status
If I asked you to identify Lyft's business, how would you answer?
"They're a transportation company," you'd say. There's no other correct answer … unless you ask Lyft.
Lyft will tell you that it's a tech company, not a provider of transportation.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, July 7, 2022
A Q&A on service animals at work
The EEOC has sued Hobby Lobby, accusing the arts-and-crafts retailer of refusing to reasonably accommodate a cashier by declining her the use a service dog and ultimately firing her.
According to the suit, the employee advised her manager that she needed to bring her fully trained service dog to work to assist her with symptoms caused by PTSD, anxiety and depression. The company's human resources representative met with the employee to discuss her request but concluded the dog would present a safety concern because a coworker or customer might be allergic to or trip over the dog, or the dog might break something. Even though Hobby Lobby allows customers to bring service dogs and other dogs to the store, managers were unwilling to allow the employee's service dog in the store to see whether there was an actual safety concern. Hobby Lobby ultimately terminated the employee when she could not work without her service dog.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, July 6, 2022
Having a disability is NOT an excuse for mistreating others
I've written before about BrewDog (here and here), the multinational Scottish craft brewery accused by hundreds of former employees of systemic mistreatment through its sexist and misogynist work environment. The brewery's founder and CEO, James Watt, stands at the center of much of controversy and most point to him as the root cause of most of the allegation.
Earlier this week, Watt appeared as a guest on The Diary of CEO podcast. During the interview, Watt blamed his pattern of mistreatment of employees him possibly being autistic.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 18, 2022
Jury awards $450,000 to employee fired over unwanted birthday party
Kevin Berling, a 10-month employee of Gravity Diagnostics, made a simple request of the manager of his office —"Please don't throw me a birthday party; I have an anxiety disorder."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 1, 2022
If you want to get yourself into discrimination hot water, stereotype your protected-class employees
To cases recently settled by the EEOC illustrate the point that stereotypes of protected-class employees are a quick path an expensive lesson.
- Ranew's Management Company agreed to pay $250,000 to settle a disability discrimination claim after it fired an employee based on a "lack of trust" instead of permitting her to return from a leave of absence resulting from severe depression.
- American Freight Furniture and Mattress agreed to pay $5,000,000 to settle a sex discrimination lawsuit based on allegations that managers made hiring decisions based on bias and stereotypes, including that women would not "do as great a job at selling furniture as men," could not work in the warehouse because "women can’t lift," and that female employees would be " distraction" to their male coworkers.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 17, 2022
An employer has disability discrimination problems if the interactive process isn’t interactive
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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