Articles Posted in Disabled individuals

Lev Craig

The U.S. District Court for the Eastern District of Pennsylvania recently refused to dismiss Kate Lynn Blatt’s gender and disability discrimination claims in Blatt v. Cabela’s Retail, Inc. Blatt, a transgender woman, brought suit against her former employer under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), alleging that Cabela’s had discriminated against her based on her gender identity and her diagnosis of gender dysphoria.

Being transgender does not necessarily involve a diagnosis of gender dysphoria. Whereas a transgender person is someone whose gender identity differs from the sex that they were assigned at birth, gender dysphoria is a condition recognized by the American Psychological Association (APA), characterized by a “marked difference between [an individual’s] expressed/experienced gender and the gender others would assign [them],” which is present for at least six months and “causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

By Harrison Paige

In Green v. Dallas County Schools, the Texas Supreme Court recently held that a Texas appeals court erred in its decision to overrule a trial court’s jury finding of disability discrimination. The state supreme court thus reversed and remanded the case back to the appellate court for additional deliberation.

Plaintiff Paul Green suffers from a congestive heart defect, which he treats with a diuretic medication whose side effects include urinary incontinence. Green was employed by the Dallas County School District (“DCS”) as a school bus aide and monitor, helping to transport children with special needs to and from school every day. At the start of his employment, he reported his heart condition, as well as his medication-related urinary incontinence, to his supervisor. Initially, Green had no problems, working easily with a bus driver who accommodated Green’s medical needs by stopping the bus at public places along the route to allow him to use the restroom as needed.

Lev Craig and Edgar M. Rivera, Esq.

Determining a school’s liability in a student suicide case is a fraught and complex issue: While plaintiffs argue that schools should make more significant efforts to prevent a student’s suicide—especially since many student suicides are caused by repeated incidents on school campuses, like severe peer bullying—courts have generally been reluctant to impose new or heightened duties on school counselors.

In 1991, the Maryland Court of Appeals in Eisel v. Board of Education of Montgomery County was the first court to hold that school officials may have a legal duty to try to prevent a student’s suicide. In Eisel, a wrongful death and survival action, a 13-year-old girl committed suicide after telling school counselors that she intended to kill herself.  Citing the in loco parentis doctrine—which requires a person or organization, such as a school, to take on some of the functions and responsibilities of a parent—the court concluded that “school counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescent student’s suicidal intent.”

Lev Craig and Edgar M. Rivera, Esq.

When Philip Sullivan decided to apply for a warehouse job at Grisham Farm Products, Inc. (Grisham), he learned that Grisham required all applicants to complete a 3-page “Health History” as part of their employment application. This form asked applicants to respond to 43 questions concerning their medical histories, including whether they had consulted with a healthcare provider in the past 24 months or suffered from specific medical issues, such as heart conditions, depression, and sexually transmitted infections, among others.

As Mr. Sullivan has disabilities, he was worried that his answers would reveal them and thus negatively impact his chances in the hiring process; therefore, he decided not to apply for the job and instead contacted the Equal Employment Opportunity Commission (EEOC). The EEOC sued Grisham on his behalf, alleging violations of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The ADA prohibits employers from inquiring into a person’s medical history before making a conditional offer of employment, and GINA prohibits employers from requesting genetic information from job applicants.

Jennifer Melendez and Edgar M. Rivera, Esq.

Former Lowe’s employee, William Powell, sued Lowe’s Home Centers LLC, alleging that Lowe’s violated the Americans with Disabilities Act (ADA) by refusing to provide him an accommodation for his urinary incontinence.  Lowe’s terminated Powell’s employment after another employee caught him urinating near the store’s entrance. The ADA prohibits employers from terminating a qualified employee because of a disability, as well as refusing to make a reasonable accommodation to a known disability if the accommodation would not impose an undue hardship on the operation of the employer’s business.

Powell began working at Lowe’s on February 6, 2008 as a stocker. The record reflected that in fall 2010, Powell underwent prostate surgery, was taking medication for urinary incontinence, and had urinated in a colorant bottle in the paint department during his shift—for which Lowe’s placed him on probation for six months. The record also showed that in March 2010, Powell reported to Lowe’s that his doctor changed his medication and that he was “cured” of his incontinence, he never provided Lowe’s with a doctor’s note indicating that he needed extra bathroom breaks because of incontinence, and, notably, there was no evidence that Powell suffered from incontinence between the the time he urinated into the colorant bottle and when he was caught urinating near the store’s entrance.

Yarelyn Mena and Owen H. Laird, Esq.

Many employees might be surprised to learn that a determination by the Social Security Administration (“SSA”) can affect their right to benefits from a private pension plan. The Second Circuit has allowed pension plan administrators, depending on the language of the plan, to do just that.

In July 2005 Francy Ocampo applied for disability benefits under the Social Security Act after herniated disks prevented her from working. Ms. Ocampo worked as an office cleaner for more than 20 years, and was a member of the Services Employees International Union (“SEIU”), Local 32BJ. In December 2006, an SSA administrative law judge determined that Ms. Ocampo was disabled by the definition in the Social Security Act, defined as “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months,” and thus was eligible to receive disability benefits. In March 2007, the SSA notified Ms. Ocampo that she would receive disability benefits for five months.

Ciera Ambrose and Edgar M. Rivera, Esq.

Epilepsy is one of the most common and serious neurological disorders, affecting approximately 65 million people globally. Adult onset epilepsy is particularly devastating because developing a life-limiting disability at an advanced age is an incredibly stressful challenge—every day life activities require more time and effort, and there are new expenses to bear. The last thing that anyone needs during this time of vulnerability is an employer threatening to terminate employment. The Americans with Disabilities Act (“ADA”) prohibits discrimination in all forms against disabled employees, including qualified individuals living with epilepsy. The ADA provides comprehensive civil rights protections to individuals whose medical conditions interfere with life activities; however, employers often put their own benefits and conveniences ahead of those of their employees, resulting in violations of the ADA.

In Ward v. Grayson County, Texas, Marshall Ward, a Texas Sanitarian worker, alleged that Grayson County terminated his employment for symptomatology of adult onset epilepsy. Mr. Ward worked for Grayson County for over twenty years, when, in 2012, he experienced his first seizure. He alleges that in response, Grayson County placed him in the position of Eligibility Clerk, resulting in a substantial reduction in pay. In October 2013, Grayson County started to investigate Mr. Ward for “violating policies.” Shortly thereafter, he was terminated for allegedly staring at female coworkers’ breasts. Mr. Ward denied the allegation and had never been accused of inappropriate behavior of any kind during his twenty-year tenure. Mr. Ward claims that the accusation was pretext to terminate his employment because of his epilepsy. The case is pending in the Eastern District Court of Texas.

On November 10, 2014, the United States Court of Appeals for the 11th Circuit reversed a decision by the U.S. District Court from Northern Georgia, which had granted summary judgment to Defendant Henry County School District in Lightfoot v. Henry County School District(“the District”). Plaintiff Zaneta Lightfoot suffers from Sickle Cell Anemia, which causes her to experience sporadic “pain crises” and difficulty standing or walking. In March 2010 she applied for intermittent FMLA leave, which she took during the 2010-2011 school year. She then applied for an additional period of intermittent FMLA leave.

During the time of her eligibility for leave, the Principal and two Vice Principals of the school met with Ms. Lightfoot to give her a “letter of redirection,” a disciplinary document in which she was accused of “fail[ing] to work cooperatively with co-workers” and “fail[ing] to provide five days of substitute lesson plans.” Lightfoot claims that during this meeting her three managers revealed that their true reason for issuing the letter was her use of FMLA leave, stating that her medical absences had caused many of the problems described in the letter. Then Lightfoot received an overall evaluation of “unsatisfactory” in her next performance evaluation, was placed on a Performance Development Plan (“PDP”), and removed from her (paid) position as the school’s cheerleading coach. One of her classes was moved to a distant classroom, which required her to take several painful walks across the school each day and, when she requested accommodation, which Principal Cook denied because she “did not appear to be in pain.”

She next received a second letter of redirection, on which she was accused of falsifying a student’s grades–a charge for which no evidence was ever provided to the Court–and then informed in March 2013 that her employment was terminated. She then initiated her lawsuit, until on September 17, 2013 the district court found that the School District was an “arm of the state” and thus entitled to Eleventh Amendment immunity from actions within federal courts.

In March 2014 the EEOC sued Maxim Healthcare Services, Inc. for discriminating against an HIV-positive individual in violation of the Americans with Disabilities Act. The company refused to hire the candidate because of his HIV-positive status. Maxim is a provider of medical staffing, home health, and wellness services and has more than 360 offices nationwide.

According to the lawsuit, the candidate had applied for a position that involved sitting with patients at a U.S. Department of Veterans Affairs medical facility. The candidate had already received an offer of the position from Maxim that was contingent on later completion of a health status certification. After receiving the candidate’s medical information, which reflected his HIV-positive status but stated he was cleared to work, Maxim informed the candidate that he could not be hired because he was HIV-positive. Refusing to hire someone because of his HIV status violates the Americans with Disabilities Act.

“Once again, an employer involved in the health care field has impermissibly allowed fear and bias to enter into the hiring process,” said Philadelphia Regional Attorney Debra M. Lawrence. “The ADA clearly prohibits covered employers, including those staffing health care positions, from refusing to hire someone based on disability.”

On October 10, it was announced that the EEOC has filed a lawsuit charging that FedEx discriminated against deaf and partially deaf packed handlers and job applicants for years. Package handlers physically load and unload packages from delivery vehicles, place and reposition packages in FedEx Ground’s conveyor systems, and scan, sort and route packages.

The lawsuit arose as a result of 19 charges filed throughout the country citing discrimination against deaf and hard-of-hearing people by FedEx Ground. The agency consolidated these charges and conducted a nationwide systemic investigation of these violations. The EEOC filed its lawsuit in U.S. District Court for the District of Maryland.

The EEOC says that FedEx Ground failed to provide needed accommodations to the workers such as American Sign Language (ASL) interpretation and closed-captioned training videos during the mandatory initial tour of the facilities and new-hire orientation for deaf and hard-of-hearing applicants. The shipping company also failed to provide such accommodations during staff, performance, and safety meetings.