Atlanta Employment Lawyer Blog

In a recent case, the 6th Circuit Court of Appeals overturned a jury verdict where an employer failed to take the proper steps under the Americans with Disabilities Act (ADA). In Jones v. Nissan N. Am. Inc., the court determined that because the employer – Nissan North America – failed to conduct an individualized inquiry concerning an individual’s actual ability to perform his job, a lower court jury determination for Nissan must be thrown out and the employee was entitled to damages.

Under the ADA, employers are required to determine what is a disability on an individualized basis. In some situations, if you are regarded as or perceived as disabled you may be protected by the ADA. This means that if an employer takes an adverse action against an employee who they regard as disabled, this action may violate the ADA. It’s important to consult an experienced disability discrimination lawyer if you believe your employer has violated the ADA.

Here the employee – Mark Jones – developed an elbow injury at work requiring surgery. In a workers’ compensation proceeding that resulted from the injury, a state chancery court determined he was entitled to vocational disability. The court order did not set out any specific tasks that Jones could not perform but simply said to avoid heavy lifting. Relying on the court order, Nissan imposed medical restrictions on Jones without reviewing what Jones could or could not do. For example Nissan barred Jones from using hand tools, although they weren’t mentioned in the order. Nissan also barred Jones from all lifting, not just heavy. Jones subsequently refused to sign a form stating he was unable to do his job because he was still able to perform most of the tasks associated with his work.

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The Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act (ADAAA) prohibit disability discrimination against individuals with a disability in the terms and conditions of employment. This includes people with any medical, physiological, or psychiatric condition that substantially limits a major life activity. As part of the ADA and ADAAA employers are required to make an effort to “reasonably accommodate” qualified individuals with disabilities. To “reasonably accommodate” means different actions in different work situations, but has been found to include changing your starting work time by a couple of minutes, making alterations to your workspace, or giving you a phone amplifier if you are hard of hearing.

In a recent New York case, Nixon-Tinkelman v. New York City Dep’t of Health and Mental Hygiene, a woman who is hearing-impaired and has cancer, heart problems, and asthma claimed she suffered disability discrimination when her employer failed to accommodate her by assisting with her commute after transferring her place of work from Queens to Manhattan. The trial court had determined that because commuting falls outside of the scope of a person’s job, assisting with Nixon-Tinkelman’s commute was not required under the ADA.

The appeals court disagreed, stating “[A]n employer may have an obligation to assist with an employee’s commute….[T]here is nothing inherently unreasonable … in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.” The court also noted that the actions necessary to accommodate a commute vary on a case-by-case basis, so what is “reasonable” depends on each individual’s situation.

Here, Nixon-Tinkelman had worked in a more suitable location for many years before her employer decided to transfer her, so the district court should have considered whether her employer could have complied with the ADA by transferring her back to her original location, providing the option to work at home, or even giving her a car to get to work.

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In a recent Second Circuit Court of Appeals decision, the court determined that a trial court had erred when it issued jury instructions that too narrowly defined what retaliation means. In Millea v. Metro-North R.R. Co., a railroad employee – Christopher Millea - brought a retaliation claim under the Family and Medical Leave Act (FMLA). When the court instructed the jury concerning how to make its decision about the case – it failed to instruct them that retaliation in the form of a “materially adverse employment action” includes “an employer’s action that is likely to dissuade a worker …from exercising his legal rights.”

Here, Millea brought a case for retaliation based on his attempts to exercise his rights under the FMLA. Millea had fought as a U.S. Marine and suffered severe post-traumatic stress and panic attacks. During 2005, he applied for leave under the FMLA and was granted 60 days of leave for 2006. Millea was supposed to notify his supervisor directly if he needed to take leave that was unforeseeable.

Unfortunately, in two instances Millea suffered attacks and took leave, but did not provide direct notice. As a result, Millea was docked pay and had a letter of reprimand placed in his file. He was later transferred to a lower paying position. Millea then filed an FMLA lawsuit claiming that the railroad interfered with his ability to take leave, and that the letter of reprimand qualified as retaliation.

At trial Millea requested the jury be instructed that retaliation includes actions likely to dissuade a worker from making or supporting a charge of discrimination. The Court instead simply told the jury that retaliation is “a materially adverse action.” The Second Circuit determined this definition was too narrow, and may have prejudiced Millea right to recover for retaliation. The court also noted that an employer’s formal reprimand is more than just a “petty slight,” and can affect an employee, leading him to fear for his job.

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Under Federal law, retaliating against an employee for complaining of discrimination – or being a witness in another’s claim of employment discrimination – is prohibited. A recent case examined just how long between the time an employee complains about an action being discriminatory and when negative consequences occur supports a claim of retaliation.

In Benuzzi v. Board of Educ. of Chicago, a school custodian testified in a deposition concerning her claims of gender discrimination. According to court documents, the following day the principal of the school where she worked issued a “sweeping Notice of Disciplinary Action citing petty misdeeds that allegedly occurred months ago,” along with a memorandum restricting her access to the school.

Title VII and other discrimination laws prohibit retaliation in the workplace. Retaliation doesn’t only include being fired for making a complaint. It also includes almost any negative action by your employer against you, and in some cases, a family member or friend. Many times retaliation cases are easier to win than discrimination cases – you must simply show that you reasonably believed you were discriminated against and that you were then subjected to an adverse action.

The Seventh Circuit Court of Appeals determined that although a two month time span might not support a retaliation claim, the incredibly short period of time – just one day - between the deposition and the disciplinary action could give rise to the inference that the two events were linked, and as a result support a claim of retaliation.

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