Be Ever Vigilent to Avoid Disablity Discrimination Claims
The calls to our office involving claims for disability discrimination seem to be rising exponentially, and a recent report by the Equal Employment Opportunity Commission explains why.
The EEOC reports that one-quarter of all the discrimination complaints filed with the agency in 2010 involve discrimination claims. There are probably many factors involved in that statistic, but I suspect a major factor is the willingness of plaintiffs’ attorneys to pursue such claims. Discrimination claims based on age, for example, can be hard to prove. If age is truly the motivation behind some adverse job action, it is unlikely that the employer telegraphed that fact. The proof of discrimination will need to come from a showing of disparate treatment, with little or no evidence that the employer had it out for older employees. But with a disabled employee, proof of discrimination can come from the failure to accommodate the disability.
The recent Supreme Court case of Roby v. McKesson Corp. illustrates the point. In that case, the plaintiff was a valued employee for more than a decade, but began taking medicine to deal with some stress issues. That medicine apparently came with some side-effects, including body odor and open sores cause by her scratching herself. She was sometimes unable to go to work, but she could not always comply with the company’s requirement of 24 hours notice (and, frankly, how often does any employee know 24 hours in advance that he or she is going to be sick?). Add to this, the supervisor was alleged to have berated her at meetings about her condition. She sued and obtained a judgment for $20 million, although it was subsequently reduced to $4 million.
In another case, Sandell v. Taylor-Listig, Inc., an employee suffered a stroke, resulting in his use of a cane and slowed speech. The company eventually terminated him, and he sued for discrimination. The trial court threw out the case on a motion for summary judgment, but that ruling was reversed on appeal, finding that while the company had claimed the termination was for poor performance, there was sufficient evidence to let a jury decide whether that claim was a pretext.
Lesson for businesses: The definition of what constitutes a disability is very broad. If you have an employee claiming some condition that is limiting their ability to work or which needs some special accommodation, listen. You have an affirmative duty to engage the employee in a good-faith dialogue to determine what can be done to accommodate the condition, even if the employee never makes such a request.
Retaliation Claims Can Extend Beyond the Employee
I have always made this claim, but the Supreme Court finally agreed with me.
Title VII makes it illegal for an employer to retaliate against an employee who has filed a discrimination claim. But what if an employer is genuinely evil, and knowing that attacking the employee would be obvious retaliation, instead seeks to put that employee in her place by demoting a spouse or firing a friend? Can that other person also invoke the protections of Title VII, arguing that even though he did not file the complaint, he is protected from retaliation?
That is the situation that allegedly arose in Thompson v. North American Stainless. Miriam Regalado, a female employee, filed a sex discrimination claim, and three weeks later, according to the suit, the company fired her fiancée Eric Thompson. Thompson sued under Title VII, claiming the company had fired him to retaliate against Regalado for filing her complaint.
The District Court was not impressed with the complaint, holding that Title VII did not permit this sort of third-party claims. The Court of Appeals for the 6th Circuit agreed, but the Supremes reversed.
"Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers' unlawful actions," he wrote. "Hurting him was the unlawful act by which the employer punished [Regalado]." In those circumstances, said Scalia, Thompson is "well within the zone of interests" protected by Title VII.
With this opinion, the Supreme Court has cleared up a split of decisions among differing districts. Third-party claims now have the green light.
Lesson for businesses: As I have preached here before, in the context of employment law, perception is reality. The reasons and motives of North American Stainless for terminating Thompson may have been perfectly appropriate, but the timing was terrible. The company created a new claim, and bolstered the original claim. The flagpole watcher approach would have been a better option.
Top Five Employee Suits
The EEOC recently identified the five most commonly filed employee suits, which are:
sex discrimination and harassment (30.1 percent);
retaliation (22.2 percent);
race discrimination (13.5 percent);
disability discrimination (12.8 percent); and
age discrimination (8.2 percent).
Sadly, many such cases are fomented by plaintiffs’ attorneys who don’t properly advise their clients. Never mind that in a huge number of cases there is not a scintilla of evidence that the termination was based on discrimination, it is enough that the employee belonged to a protected class. In most cases the employer ponies up some cost of defense settlement amount to avoid the uncertainty of trial.
Thus, no one can advise you how to keep your employees from pursuing legal action, but my first post on this site still remains solid advice on how to ultimately prevail if you decide to go the distance.
Changes to ADA Important to Know
The Americans with Disabilities Act (ADA), though well intended, has created innumerable interpretations by the courts and legal minefields for employers. The ADA Amendments Act of 2008 is expected to clear up some of the confusion, but will no doubt create its own set of problems.
Here is a concise summary of the ADA Amendments Act of 2008.
