Mastodon Ohio Employer Law Blog: disability discrimination : Ohio Employment and Labor Law, by Jon Hyman
Showing posts with label disability discrimination. Show all posts
Showing posts with label disability discrimination. Show all posts

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. 

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

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.  

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.

Thursday, October 20, 2022

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.

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.
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.

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.

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.

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.

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.

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."

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.

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. 

Thursday, February 17, 2022

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.

Thursday, October 7, 2021

Coronavirus Update 10-7-21: EEOC brings its first pandemic-related lawsuit over a denied WFH accommodation


The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.

EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

According to the EEOC, just because an employer previously offered remote work during the pandemic for some or all employees does not mean that remote work is an appropriate accommodation for any specific employee after it recalls employees to the physical workplace.

What does this look like in practice? A lawsuit the EEOC recently filed will test its limits.

Wednesday, October 6, 2021

Employment law lessons from “Ted Lasso” — Let’s talk about medical confidentiality


The penultimate episode of Season 2 of Ted Lasso ended with an absolute gut-punch of a cliffhanger.

(Spoiler Alert — Turn Back Now If You're Not Caught Up)

Thursday, July 22, 2021

Coronavirus Update 7–22–2021: How the ADA and FMLA apply to Covid long haulers


The risks associated with Covid-19 aren't limited to the 625,000 Americans this virus has killed or the 2.3 million hospitalizations. One of the greatest risks comes from the fact that nearly one-third of Covid-19 patients will develop long-haul symptoms that long outlast the actual infection, and further that nearly one-third of all Covid long haulers had asymptomatic Covid cases. These long-haul symptoms can include fatigue, respiratory problems, "brain fog," body aches and muscle pain, abdominal issues, and loss of smell and taste. They can be quite debilitating and last for months or longer.

If you have an employee experiencing one or more of these long-haul symptoms, what are your legal obligations to that employee under ADA and FMLA?

Monday, July 19, 2021

An adverse jury verdict is just a number on a piece of paper


Late last week, a federal jury tagged Walmart with a verdict totaling more than $125 million in a disability discrimination lawsuit the EEOC brought on behalf of an employee with Down syndrome.

The facts were not great for Walmart. 

Thursday, October 15, 2020

What we’ve got here is a failure to communicate


An employee suffers an injury that prevents her from operating a motor vehicle. With no means of transportation to travel to and from her workplace, the employee calls off work, believing that her absences were excused. They weren't, and the employer fires her for excessive absences.

She sues, claiming disability discrimination, in part because of the company's failure to accommodate her inability to drive.

Thursday, March 5, 2020

Accidents will happen: “Not every mistake amounts to actionable employment discrimination”


Mistakes happen. Including in the context of employment decisions. But not every mistake amounts to actionable employment discrimination. That’s the lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she had been stealing from one of the company’s clients.

So starts the 6th Circuit’s opinion in Smith v. Towne Properties Asset Management Co.

Tuesday, February 25, 2020

Just being in a protected class is never enough to protect an employee’s job


When Wisconsin Physicians Service Insurance Corporation terminated Mary Lou Stelter from her sales position, she claimed disability discrimination relating to a workplace back injury and her related two-month leave of absence.

WPS, on the other hand, argued that Stelter’s manager, Wendy Harings, expressed concerns about Stelter’s performance deficiencies and absenteeism four years before the back injury; thus, any negative marks after her injury were merely a continuation of her long history of on-the-job issues and not evidence of discriminatory animus.

Monday, January 27, 2020

Does the ADA protect employees who travel to areas that potentially expose them to coronavirus?


Coronavirus is 2020’s pandemic du jour. It’s a serious, and potentially deadly, respiratory virus that (likely) started in Wuhan, China, and has now made its way into the U.S. with five confirmed cases.

Suppose you fire an employee who you fear might have been exposed to the virus. She exhibits no symptoms, but because she had recently traveled to an area in which she could have been exposed, you think it’s better safe than sorry not to have her work for you anymore. She sues for disability discrimination, claiming that you “regarded her” as disabled. Does she win her case? The outcome might surprise you.

Wednesday, January 22, 2020

Dream on — lawsuit by Aerosmith drummer highlights the legal risk of "fitness for duty" exams


Joey Kramer, Aerosmith's founding and longtime drummer, is suing his band mates after they blocked him from joining them at upcoming high-profile events, including this weekend's honor as the 2020 MusiCares Person of the Year and its Lifetime Achievement Award at this weekend's Grammys.

Kramer claims that Steven Tyler, Joe Perry, Tom Hamilton, and Brad Whitford are not allowing him back in the band following a temporary disability from minor injuries he suffered last year. According to TMZ, Kramer claims the band required him to audition to prove he was "able to play at an appropriate level" before he could regain his drummer role. He further claims that in this audition is unprecedented in the band's 50-year history, during which each of other members had to step away for various reasons.

This story got me thinking about an employer's rights when an employee seeks to return to work after a medically-related leave of absence.