Atlanta Employment Lawyer Blog

The Americans with Disabilities Act protects qualified individuals against several different types of discrimination based on a “disability.” A qualified individual with a disability includes those individuals with any medical, physiological, or psychiatric condition that substantially limits a major life activity. Further, the ADA protects against perceived disabilities. This includes disability discrimination based on stereotypes and baseless concerns about an individual’s condition or medical history. Under these circumstances, it is a violation of federal discrimination laws to take adverse employment actions or retaliate against you for complaining about disability discrimination. It also requires your employer take reasonable steps to accommodate your disability.

In a recent case, Blackburn v. Trustees of Guilford Technical Cmty. Coll., a North Carolina Court reviewed whether a Community College violated the ADA when it refused to allow a house keeper – Gail Blackburn - to return to work. Blackburn had sustained workplace injuries and was placed on work place restrictions prohibiting her from lifting more than 20 pounds, sitting of standing for a prolonged period of time and repetitively bending, stooping or squatting. When she received a physician’s release two months later, the Community College failed to give her her job back, based on their perception that she was disabled and could not perform her job.

Blackburn sued the Community College, and the College tried to defend itself by claiming it was immune from liability as an “arm of the state,” and the Constitution generally prohibits lawsuits against states. However, North Carolina specifically waived sovereign immunity for lawsuits filed by “state employees” and as a result, Blackburn was allowed to proceed with her job discrimination claim.

Continue reading "Community College Employee Allowed To Proceed With Wrongful Termination Claim Under The ADA In Blackburn v. Trustees " »

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.

Continue reading "Employer Must Conduct An Individualized Inquiry Of Actual Disability" »

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.

Continue reading "Nixon-Tinkelman v. New York City Dep’t of Health and Mental Hygiene Determines Employer May Be Required To Help With Commute Under The ADA" »

In the largest settlement in the history of the Equal Employment Opportunities Commission (EEOC), Verizon Communications has agreed to settle a class action disability discrimination lawsuit. The lawsuit, EEOC v. Verizon Del. LLC, challenges the company’s attendance policies, asserting that the company violated the Americans with Disabilities Act (ADA) by maintaining attendance policies that did not adequately accommodate disabled employees.

Under the ADA, employers are required to take reasonable actions to accommodate qualified individuals with disabilities. This can be a simple step such as changing your start time or changing your workspace. If the employer fails to take such action, you may have a claim for disability discrimination. Speaking directly to an experienced Georgia employees' rights attorney can provide you counsel on the best solution to your problem.

Here, Verizon maintained a disciplinary policy that included progressively serious consequences for absences – including absences due to an employee’ disability. By settling the lawsuit, Verizon does not admit liability or the validity of the allegations. However, Verizon acknowledges the importance of working together with employees to determine the nature of their disabilities and whether accommodations should be made. In a statement, Verizon noted, “Hopefully this nationwide decree will further public awareness of the importance of engaging in an interactive process to determine whether a disabled employee must be accommodated under the ADA.”

Continue reading "$20 Million Settlement In Verizon Disability Discrimination Case " »

The Americans with Disabilities Act (ADA) and the Americans with Disabilities Amendments Act (ADAAA) provide basic protections making disability discrimination illegal. The ADA prohibits discrimination against qualified individuals with a disability in the terms and conditions of employment, with one of the Act’s main protections requiring employers to “reasonably accommodate” an employee’s disability. To “reasonably accommodate” a disability means that an employer must take those reasonable steps that may allow you to do your job, despite your disability. The ADAAA, which recently became effective, further defines who may be considered “disabled” and subject to “reasonable accommodations.”

Earlier this month, the Equal Employment Opportunity Commission (EEOC) held ADAAA reasonable accommodation hearings in an effort to provide more specific guidance to employers and workers regarding just what may be considered a “reasonable accommodation,” but noted, “there are no blanket answers to these questions.”

One of the main issues raised included flexible leave policies, which allow employees to have leave extensions based on their individual circumstances. In many cases, an employee is not ready to return to work when their approved leave ends. Two recent cases were settled against employers who automatically fired disabled workers who weren’t ready to return to work when their leave was up. The EEOC noted that an “inflexible period of leave” is risky for employers, and is likely insufficient to satisfy appropriate leave.

Continue reading "EEOC Holds Public Hearings On Accommodations Under The ADA " »

In 2009, the ADA Amendments Act took effect. One of the objectives of the ADAAA was both to cover more people and to give those people with disabilities greater protection from discrimination at work.

One of the groups still experiencing very low employment rates are those people with mental disabilities. The new amendments provide greater coverage for people with “psychiatric and mental disabilities.” At a recent ADAAA EEOC hearing, EEOC Commissioner Chai Feldblum noted that it is important to continued knocking down barriers to employment - increasing evidence shows that people with mental disability “can perform well” in the workplace.

As stated by the executive director of the Georgia Advocacy Office, “[V]irtually everybody with a disability can work.” The biggest obstacle to employment of persons with mental disabilities remains the “consciously and unconsciously held beliefs” of employers about persons with such disabilities. Sometimes an accommodation “simple as a flexible work schedule” is all it takes to employ a qualified worker with disabilities.

Continue reading "Georgia Employment Of Persons With Mental Disabilities Encouraged" »

Many times we suffer long term or significant injuries that keep us from fully engaging in all the activities we want to. If an injury, illness, or condition keeps you from adequately participating in a major life activity it may be considered a legal “disability” and entitle you to certain rights at work. A “major life activity” is generally defined to include those things that most people can do with little or no difficulty, such as caring for yourself, hearing, speaking, breathing, standing and lifting.

If you are considered disabled, federal law provides both that you can’t be fired as a result of your disability and that your employer must put forth an effort to make reasonable changes that will help you to do your job – such as possibly allowing you to come into work later or making your office or work space easier to access. You may also be allowed not to perform certain parts of your job that may be painful or difficult due to your disability. If an employer doesn’t make these changes, you may be able to bring a disability discrimination lawsuit under the Americans with Disabilities Act or the Americans With Disabilities Act As Amended (ADA or ADAAA).

A recent case determined that if you bring a lawsuit under the ADA, medical evidence of a disability may not be required. Your own personal statements concerning your daily functioning, or that of anyone else who has knowledge of your day-to-day activity, are enough to show the extent of your disability or impairment.

Continue reading "Disability May Be Proven By Personal Statements. " »

The U.S. District Court for the Eastern District of Michigan ruled that a part-time bank teller raised triable issues of disparate treatment and failure to accommodate under the Americans with Disabilities Act (ADA).

The ADA prohibits discrimination against “qualified individuals with a disability” in the terms and conditions of employment. A qualified disability is any medical, physiological, or psychiatric condition that substantially limits a major life activity. The ADA provides that where a person is a "qualified individual with a disability," his or her employer must make an effort to reasonably accommodate the disability.

Here, the court determined that the woman’s epilepsy constituted a disability covered by the ADA. Although her medication controlled the amount of seizures she had, they were not eliminated. However, despite her requests for a later start time to allow for more sleep and reduce the frequency of her seizures, the bank refused to allow these changes.

As a result, the court determined that a her claims under the ADA were sufficient to withstand summary judgment, reasoning that a reasonable jury could find that the woman was disabled and that the bank failed to provide the reasonable accommodations.

Continue reading "Disability Discrimination Case Asserted By Bank Teller With Epilepsy " »

A recent Wisconsin federal court decision serves as a victory for those discriminated against due to depression. In Ekstrand v. School Dist. of Somerset, a jury determined that a school district should pay a schoolteacher more than $2 million for failing to provide her with a classroom window because she has seasonal affective disorder (“SAD”).

Under the Americans With Disabilities Act (“ADA”) if you are a qualified individual with a disability, your employer must make an effort to reasonable accommodate your disability. Accommodations can be simple – such as changing your start time by a few minutes or altering your workspace. If your employer fails to accommodate you, in most cases it is possible to file an ADA discrimination charge. However, in instances where the request is too expensive or burdensome, accommodations may not be required.

In Ekstrand, after working several years for the school district, a teacher was moved to a room with no windows. Even though she told the school district that she had SAD, a form of depression that occurs based on a lack of exposure to natural light, the school failed to “reasonably accommodate” when requested by moving her to a classroom with windows.

Although the amount the teacher will receive was reduced due to caps on damages, the verdict sends a message to employers that depression and other disabilities must be taken seriously and accommodated where reasonable.

Continue reading "$2 Million Jury Award to Teacher With Seasonal Affective Disorder Wins Case Over Denial of Windowed Room" »

In one of the first summary judgment rulings under the amendments to the Americans with Disabilities Act (the “ADAAA”), the U.S. District Court for the Northern District of Indiana determined that an employee who has cancer is considered to be “disabled” even if the condition is in remission at the time of the alleged adverse employment action.

In Hoffman v. Carefirst of Fort Wayne Inc., d/b/a/ Advanced Healthcare, 13 months after Stephen J. “Sam” Hoffman, had surgery for stage III renal cancer, his employer demanded he increase his hours from 40 to 65 or 70 in order to meet client needs. Hoffman objected and produced a doctor’s note stating he was limited to working a 40-hour workweek. The company rejected his request to work fewer hours in his current location, and offered Hoffman a different job with a 2-3 hour commute. The arrangement was unacceptable and Hoffman never returned to work.

Hoffman sued under the ADAAA, claiming Advanced Healthcare failed to accommodate his disability and he was fired because he was disabled or regarded as disabled.

Although the ADAAA retains several key aspects of the ADA, it has also made some significant changes to the term “disability” and has expanded the ADA protections to include more individuals with less severe impairments. The ADAAA also provides, “the definition of disability in this Act shall be construed in favor of broad coverage …to the maximum extent permitted under the terms of the Act.”

Writing for the court, Judge Rudy Lozano reasoned that based on the stated purpose and language of the ADAAA, as well as interpretative regulations issued by the Equal Employment Opportunity Commission, cancer is a covered disability - regardless of whether it’s active or in remission. Further, a showing that cancer was substantially limiting Hoffman in a major life activity was unnecessary.

Continue reading "Cancer In Remission Considered A Disability Under The ADAAA In one " »

A recent Ninth Circuit court opinion held that a worker whose vision affected her ability to walk and drive after dark was entitled to protection under the Americans with Disabilities Act.

The ADA prohibits discrimination against “qualified individuals with a disability” in the terms and conditions of employment. This includes requiring your employer to make an effort to reasonably accommodate your disability. Reasonable accommodations can be something as simple as changing your work time by a few minutes or altering your workspace to be more accessible. A failure or refusal to make reasonable accommodations may constitute a violation of the ADA.

In Livingston v. Fred Meyer Stores, Inc., an employee – Michelle Livingston - requested a schedule modification to avoid working after dark. She suffered from depth perception difficulties in low light that made it difficult to walk or drive a vehicle safely after dark. Livingston’s work schedule had been adjusted to accommodate her in previous years. However in 2006, Livingston’s employer refused to modify her schedule and terminated her for refusing to work after dark. Livingston subsequently filed a claim claiming her employer failed to make reasonable accommodations and terminated her in violation of the ADA. The trial court granted summary judgment in favor of the employer, noting that Livingston just needed to “exercise extra care while walking.”

The U.S. Court of Appeals for the Ninth Circuit appellate court reversed, finding that determined that despite Livingston’s ability to perform her job duties without issue during the day, her night vision impairment kept her from performing the same tasks as an average person at night, and hence in accordance with the Equal employment Opportunity Commission regulation, 29 C.F.R. Sec. 16302(i), was “substantially limited in the major life activity of seeing.”

As such, a triable issue of exists regarding Livingston’s disability bias claims.

Continue reading "Poor Vision Constitutes Disability Entitled To Protections Under The ADA" »

The Americans with Disabilities Act (ADA), provides that disability discrimination is illegal. Specifically, the ADA prohibits discrimination against “qualified individuals with a disability” regarding terms and conditions of employment, retaliation against employees who complain about discrimination, or participating in someone else’s discrimination lawsuit.

Whether someone is considered a “qualified individual with a disability” is a legal definition and depends on whether you have a condition that substantially limits a major life activity. If you fall within this definition, then the ADA requires that your employer make an effort to “reasonably accommodate your disability.” This may be some simple such as changing your start time or providing an alternate workspace. An employer is not required to make all requested accommodations, only those that are reasonable, i.e. – they are not required to make changes that are excessive or burdensome.

Whether specific accommodations are considered reasonable is determined on a case-by-case basis.

In EEOC v. Hibbing Taconite Co., the U.S. District Court for the District of Minnesota reviewed whether a mining company was required to make reasonable accommodations so that a hearing-impaired applicant – James Edstrom - could obtain a job at an open pit mine. The mining company asserted that it failed to hire Edstrom because he could not perform the essential functions of working at the mine as a result of his hearing impairment and inability to use a workplace radio.

In response, Edstrom provided evidence of accommodations made for him at past mine jobs that allowed for adequate communication and a safe environment. These accommodations included the use of radio, hand signals, eye contact, horn use, and written contact. The court determined that a triable issue of fact existed, and denied the employer’s motion for summary judgment. The court reasoned that a jury could find that these forms of communication, along with texting, constituted “reasonable accommodations” required under the ADA.

Continue reading "Alternative Modes Of Communication May Be Considered A Reasonable Accommodation" »

A man who was fired one day after telling his supervisor he was HIV positive may bring a claim for employment discrimination and impermissible medical inquiry claims under the amended Americans with Disabilities Act. In Horgan v. Simmons, the U.S. District Court for the Northern District of Illinois determined HIV falls within the new definition of “disability” as set forth under the amendments.

Not all illnesses or injuries are covered by the ADA. The ADA only protects “qualified individuals.” Qualified individuals are those with any medical, physiological, or psychiatric condition that substantially limits a major life activity.

In Horgan, the Illinois District Court evaluated whether HIV constitutes a covered disability. Writing for the court, Judge Ruben Castillo held that it is, reasoning that HIV falls within the category of being an “episodic or in remission” that “substantially limits a major life activity when active.” The court further noted that the operation of ‘major bodily functions,’ including an individual’s immune system are considered “major life activities” for the purpose of defining an actual disability under the ADA.

In addition to determining whether HIV was a covered disability, the court also reviewed whether facts exists showing that the president of the company improperly inquired into Horgan’s medical status after he told Horgan he was “really worried about him” and needed to know if “there was something medical going on.”
After persistent questioning, Horgan revealed his prognosis, but indicated that it did not affect his ability to work and be productive. However, the company president continued to ask questions about his condition. Horgan was told that he “should go on vacation” and “leave the plant immediately.” The president also sent out an email stating effective immediately Horgan was no longer a member of the company.

Continue reading "Fired Employee With HIV May Bring Claim Under Amended ADA" »

The Equal Employment Opportunity Commission recently issued a new guide to help both employers and employees better understand some complicated issues under the Americans with Disabilities Act: The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.

The new guide addresses an issue under the ADA that has given rise to a good deal of litigation—how far can employers go in enforcing their performance and conduct standards against employees who have disabilities that may limit their ability to comply with those standards. The EEOC’s new guide states that employees with a disability must meet the same performance standards that are applicable to all employees in the same job, and that employers need not reduce or relax those standards, even if an employee requests it as a reasonable accommodation. The EEOC also points out that employers may discipline disabled employees for violations of rules of conduct, even where the misconduct is caused by the employee’s disability. However, the EEOC does note that if a reasonable accommodation to an employee’s condition can be made which would allow the employee to meet a performance or conduct standard, then the employer must make such an accommodation.

The new guide addresses a number of other issues, including the application of dress codes to disabled employees and the applicability of the ADA to employees with substance abuse problems,

The new guide is written in a very accessible style, and it contains a number of examples that help illustrate the ADA’s sometimes complicated requirements. It’s worth a read by employers and employees alike.

In late September, President Bush signed the Americans with Disabilities Act Amendments of 2008, which will become effective January 1, 2009.

As we wrote in a prior post, although the ADA is, in theory, a wonderful law for disabled employees, in practice, it has been very difficult for employees to prevail in disability discrimination cases. The United States Supreme Court has issued several key decisions under the ADA which dramatically limited the scope of the law, and the lower courts, including the Eleventh Circuit (the federal appeals court with jurisdiction over the federal district courts of Georgia, Florida and Alabama) have uniformly interpreted the law in an employer-friendly fashion.

This may well change under the new law. The new law specifically expressly criticizes the Supreme Court’s ADA decisions and also takes aim at several EEOC regulations which have supported the anti-employee interpretation of the ADA. Although the new legislation is quite complex, and will need to be fleshed out by the courts before its full meaning becomes clear, it contains a number of employee-friendly provisions. Perhaps the most significant change is the new definition of the term “major life activity.” Under the new law, the definition of major life activity will be expanded to include a “major bodily function” so that if an individual has a serious medical condition that does not directly affect a major life activity, the individual will now be covered by the ADA. These covered bodily functions include the functions of the “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The new law also includes a non-exhaustive list of the types of covered major life activities: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

Continue reading "Amendments to Americans with Disabilities Act Promise New Day for Disability Discrimination Plaintiffs" »

The Americans with Disabilities Act (ADA) is a wonderful law; unfortunately, it has not proven to be easy for employees to win cases under the ADA. A recent bill introduced in the Senate to amend the ADA, if passed, may make it easier for disabled employees to prevail in disability cases.

Senate Bill 3406, entitled the ADA Amendments Act of 2008, would make it easier for an employee to claim a covered disability in a number of ways. It would expand the law’s current definition of “major life activity” to include a “major bodily function” so that if an individual has a serious medical condition that does not directly affect a major life activity, the individual would still be covered by the ADA. Additionally, the bill would make it easier to establish a “regarded as” disability. Under the proposed law, an employee claiming a regarded as disability would only need to show that he or she was regarded as having an impairment—not that the impairment was perceived to be a substantially limiting one. The proposed law would also prevent courts from taking into consideration an individual’s use of medicines and other mitigating measures in the determination of whether or not the individual is disabled.

The bill was sponsored by Senators Tom Harken (D-Iowa) and Orrin Hatch (R-Utah). Although the bill was just introduced, and President Bush opposed an earlier, similar piece of legislation that had sought to eliminate the “major life activity” requirement completely from the ADA, the bill has broad-based, bipartisan support and is being co-sponsored by 63 other senators. We’ll keep you posted.

The Americans with Disabilities Act (ADA) contains a rarely used provision that protects employees who are not disabled but who are discriminated against because they are associated with an individual, such as a spouse or other family member, who is disabled. A recent case from the Tenth Circuit Court of Appeals, Trujillo v. PacifiCorp, although not controlling in the state of Georgia, has set a very strong employee-friendly precedent that should be favorable to employees throughout the country.

William and Debra Trujillo were long-term employees of PacifiCorp and they participated in the company’s health insurance plan. Their son Charlie was also covered by the plan. Charlie had cancer (which the company was aware of), and in the spring of 2003 he had a relapse, necessitating an aggressive course of medical treatments which, as the company was self-insured, eventually cost the company more than $60,000.

Just 11 days after Charlie’s relapse, the company launched an investigation of the Trujillos on suspicion of time theft. After a brief investigation, in which key witnesses were not interviewed, and suspect evidence was relied on, the Trujillos were discharged.

In response, the Trujillos filed an association discrimination lawsuit under the ADA, contending that they were terminated not because of their alleged time theft but because of the healthcare costs the company incurred as a result of Charlie’s illness. The lower court ruled in favor of the company, concluding that the Trujillos failed to show that the circumstances raised a reasonable inference that Charlie’s disability was a determining factor in the company’s decision to fire them.

Continue reading "Parents Discharged for Son's Medical Costs Have Disability Discrimination Claim" »