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.

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.

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.

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. 

UPS denied both requests. It determined that the specific needs of Hannah's route required a larger truck, and that the smaller van had an insufficient capacity to service his route. Other possible alternatives that could have permitted Hannah to use a smaller truck — giving a part of his route to another driver or completing the route himself in multiple trips — were not feasible as each would violate the governing collective bargaining agreement. Further, there were no openings for inside work at the time. UPS advised Hannah that it would consider him for any openings as they arose.

While UPS denied Hannah the particular accommodations he requested, it did allow him to retain his job and take a leave of absence without pay until he could return to work. And after several months, Hannah did return to work and thereafter continued to drive the route to which he was assigned in a truck suited for that route.

“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.

According to a recent report, employees are considering suing their employers for geographical discrimination. 

Workers who moved to another city, state, or even country from their employer's main office during the pandemic are claiming that they're being discriminated against geographically by being forced to return to in-person work.

Wal-Mart (allegedly) did a 💩 job of accommodating this employee

Why can't some employers understand the interactive process and make accommodations that are simple and easy to make? I wish I knew the answer. After reading the facts of a lawsuit the EEOC just filed against Walmart, I know that Wal-Mart doesn't know the answer.

The EEOC claims that Walmart violated the ADA by refusing to provide a reasonable accommodation to a deli associate suffering from Crohn's disease.

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. 

This seems like an easy accommodation request to get right, and yet so many employers get it wrong. Here's a handy Q&A for your next service animal accommodation request in your workplace.

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.

That was Elon Musk's very public, and very offensive, tweet to a former Twitter employee who had asked whether the company still employed him, as his network access had been inactive for nine days and no one from HR could confirm his employment status.

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. 

She unsuccessfully appealed her termination through GM's internal grievance process. During that process Hrdlicka was diagnosed with Persistent Depressive Disorder and a brain tumor. She then sued GM for disability discrimination stemming from the after-the-fact diagnosis.

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. 

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. 

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.  

He brought his claim not under the ADA, but under a provision of the Indiana Code that prohibits an employer from requiring as a condition of employment that an employee implant, inject, ingest, inhale, or incorporate an acoustic, optical, mechanical, electronic, medical, or molecular device into their body. Muckenfuss claimed that the face mask qualified as a such a device, and that Tyson violated the statute by requiring that he wear it on his face. 

The trial court had little difficulty in dismissing this claim.

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.

As this case illustrates, any employee can sue their employer for some alleged legal violation for just about any employment decision. The issue isn't whether you can be sued, but whether the decisions you made put you in the best position to defend that lawsuit if and when it comes.

Ageist and ableist statements to 58-year-old disabled employee doom employer’s discrimination defense

"I wouldn't think with your condition and—your medical condition and your age that you would want to teach."

"I think your disability is slowing all this down.… You're really too old to be doing this."

"You need to go ahead and retire.… I'm concerned about this disability you have, your condition with your liver."

"Just how disabled are you?"

"I'm tired of disabilities and I'm tired of medical problems."

"I'm not running a rehabilitation clinic."

"If you're not at 100 percent, I can't use you. You've got to be 100 percent for this job."
 

These are just some of the comments Robert Bledsoe — a 58-year-old nuclear-plant operator who returned to work following a liver transplant — claims his supervisor made to him in the months prior to his removal from a teaching position. The Tennessee Valley Authority, on the other hand, claimed that it demoted Bledsoe based on ethical concerns after his son was accepted to the training program he taught.

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.

The OP added that her friend's spouse (male) did the same screening for the same employer, but no pregnancy test.

If it looks illegal, and it smells illegal, then it's illegal. Let's examine why.

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.

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.

The agency shares the details in its press release:

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.

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.

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."

What happened next spiraled into a lawsuit that lasted more than two and half years and ended late last month with a $450,000 verdict for the employee.

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. 

An employer has disability discrimination problems if the interactive process isn’t interactive

You'd think an employer with the name Opportunities for Ohioans with Disabilities would know a thing or two about complying with workplace discrimination laws. 

You'd think.