Obesity Discrimination?

October 26, 2018 by

obesity discriminationObesity discrimination in the workplace? After 15 years on the job, a California woman began having problems. She says the issues all revolved around a new manager with a nasty temperament and his disdain for her and her oversized body.

Obesity Discrimination – Cornell’s Story

As a college co-ed, Ketryn Cornell got a job as a lifeguard at the Berkeley Tennis Club, a revered tennis facility that has been the host of many a celebrity tennis star over the years.  

Over time, Cornell tried her hand in a number of positions at the club. She struggled with weight gain, and ultimately found she was not able to walk much farther than one mile or to stand in place longer than about an hour. Severe obesity was impacting her life and her health. 15 years after starting as a lifeguard at the luxury club, it would begin to affect her job.

New Manager Does Not Play Nice

When a new general manager was hired, Cornell claims he targeted her for her size, and deliberately humiliated her by ordering a work uniform that was several sizes too small. But that was not the end of it. Her manager pointed out that Cornell ought to consider getting weight-loss surgery, and told her she was not a “good fit” for the club.

Furthermore, when Cornell complained that a fit, young co-worker was making more money than Cornell was, the manager conceded that the petite woman was “a good fit.”

Termination

Ultimately, this story ended like many such cases do – with Cornell’s termination. The manager claimed that Cornell was surreptitiously attempting to record a board meeting one evening at the club. He used the accusation as the basis for firing her.

Obesity Discrimination – The Lawsuit

Cornell was having none of that, and quickly filed a suit claiming discrimination based on her disability (obesity), harassment, retaliation, and wrongful termination. The case was thrown out of court on a summary judgment motion, but the discrimination and harassment rulings were reversed on appeal.  

What Does it all Mean?

To prove obesity discrimination, Cornell will still be required to prove that her obesity constitutes a disability as a result of a physiological cause, and she will now have the opportunity to show that the manager’s explanation for her termination was bogus, and simply a ploy to get rid of her. Additionally, she will be able to put forth her evidence that the manager’s behaviors were predicated by malice, resulting in her wrongful discharge. [Read more…]

Filed Under: Blog, Disability Discrimination

Disabled Employees Rights

November 22, 2017 by

Disabled EmployeesDisabled employees facing discrimination. If you or a loved one has experienced workplace discrimination due to a disability, it is indefensible. When one employee with emphysema, asthma, and chronic obstructive pulmonary disease (COPD) requested accommodations in order to complete necessary tasks on the job, the company responded by discharging that employee. That act of dismissal has resulted in a lawsuit against that San Francisco company, InsideUp. If you have experienced workplace discrimination due to a disability, a local employment attorney may be able to help.

Disabled Employees and Federal ADA Regulations

The Americans with Disabilities Act (ADA) protects the civil rights of people with disabilities.  The law addresses all aspects of public life, ranging from school and employment to transportation and dining out. Essentially, the law ensures that people with disabilities have the same opportunities and rights as people without disabilities. Title I of the ADA deals specifically with employment.

Employment Opportunities

This piece of the ADA calls for employers to provide opportunities and benefits to people with disabilities that are equivalent to the opportunities and benefits of their non-disabled counterparts. Additionally, reasonable accommodations and/or modifications must be provided to employees when essential to help the employee perform necessary functions of the job.

Disabled Employees and Reasonable Accommodations

Specific accommodations should be designed around individual circumstances in the workplace.  Examples of sensible accommodations include:

  • Adapting facilities to make them accessible for all employees;
  • Restructuring job requirements so as to provide opportunities for employees who might otherwise be limited by a disability;
  • Procuring specialized equipment or modifying existing equipment as needed;
  • Adapting tests, policies, or materials used in training employees;
  • Providing part-time positions or modified work-schedules when possible;
  • Reassigning employees to vacant positions when qualified.
  • Providing interpreters, readers, or similar assistance.

When and How to Request Accommodations for Disabled Employees

If you require workplace accommodations due to a medical disability, you simply need ask your employer. The request does not have to be in writing, although having documentation of your request can not hurt. It is not necessary to disclose your disability and ask for modifications during the hiring process. You may make your request at any time.

Documentation of Your Disability

Employers do have the right to request documentation for a disability that is not obvious. Be advised, however, that your employer is not entitled to your entire set of medical records. Just the documentation necessary to establish the need for reasonable accommodations must be provided.  Employers should be specific in their requests for information related to functional limitations and the types of accommodations that may be necessary. Employers may sometimes ask an employee with disabilities to provide a limited release of their medical information. Appropriate professionals who might provide information may include doctors and nurses, mental health professionals, occupational therapists, and other authorities on your medical condition. [Read more…]

Filed Under: Blog, Disability Discrimination Tagged With: ,

Workplace Discrimination Based on Mental and Emotional Conditions

February 6, 2017 by

Workplace DiscriminationWorkplace discrimination. For an employee with a mental or emotional disability, navigating the demands of the workplace can be especially perplexing.  Unlike physical disabilities, which are often visible, mental challenges are visible only through the behaviors of the afflicted individual. Sometimes these behaviors carry with them social stigma and fear, which can actually exacerbate the underlying problems.

Employers may not wish to deal with the challenges of mental or emotional disabilities, but the law does not give them that choice. If you suffer from a diagnosed disability, you are entitled to workplace accommodations to give you every opportunity for success in the workplace. Absent those accommodations, a good employment law attorney may be necessary.

Common Mental Health Impairments and Workplace Discrimination

  • Bipolar disorder: Over 6 million individuals suffer from this disorder, which is characterized by shifting moods and energy.
  • Borderline Personality Disorder (BPD): 4-5%t of adults in this country suffer the instability in behavior, self-image and moods, impacting many aspects of the person’s life.
  • Obsessive Compulsive Disorder (OCD): Over 2 million Americans experience compulsions regularly that interfere with life functions;
  • Panic Disorder: 6 million people in the US have anxieties resulting recurrent panic attacks.
  • Post Traumatic Stress Disorder (PTSD): Nearly 8 million Americans experience decreased function and excessive emotions due to this disorder.
  • Seasonal Affective Disorder (SAD): Millions suffer recurrent depression, generally associated with winter weather.

Workplace Discrimination Legal Protections

Mental disabilities, including psychological conditions, cognitive disabilities, emotional and mental illnesses, and mental conditions are all protected under the California Fair Employment and Housing Act. This law provides even broader protections than those afforded by the Federal Americans With Disabilities Act (ADA), and were designed to prevent discrimination based on an individual’s history of mental illness. Conditions limiting major life activities (as opposed to the ADA’s substantial limitation requirement) are eligible for consideration.

What Does the Law Require of Employers?

Essentially, employers must accommodate these conditions to a reasonable degree in the workplace. That means assisting the employee to perform the most crucial aspects of the job.  Appropriate modifications in the workplace will depend on the mental condition being addressed, but might include:

  • Reducing distractions by providing sound absorption panels;
  • Providing full spectrum lighting or more natural lighting;
  • Providing flexible scheduling;
  • Providing memory aids or organizers;
  • Allowing support animals on the premises;
  • Providing a supportive mentor;
  • References to Employee Assistance Programs or counseling;
  • Reducing triggering stimuli;
  • Providing disability awareness training for coworkers;
  • Providing various forms of feedback.

Supervisors can accommodate employees by creating an inclusive culture that values all employees. Open communication, regular feedback, and clear written goals are always helpful.  Additionally, developing strategies to deal with conflicts and emotions may be essential in creating a positive work environment. [Read more…]

Filed Under: Blog, Disability Discrimination Tagged With: ,

Wrongful Termination Complaint Thomsen v. Georgia-Pacific

July 6, 2016 by

Wrongful Termination ComplaintWrongful termination complaint Thomsen v. Georgia-Pacific Corrugated, LLC. How far must an employer go to accommodate a worker’s disability? Jan Thomsen worked at a corrugated container plant in Madeira, California for approximately 23 years. He sustained a shoulder injury on the job in 2012 and returned to work in 2013 after undergoing surgery. He informed his employer, Georgia-Pacific Corrugated, LLC, that he was now unable to perform the responsibilities of his previous position as a cut and die operator. He also provided verification from his doctor that his condition prevented him from performing certain responsibilities such as carrying anything that weighs more than 30 pounds.

Thomsen was then assigned a position as an assistant end gluer, which he believed would be a good match for his capabilities. However, after performing the job, Thomsen told his employer that the duties of the new position would need to be modified to accommodate his disability. He was told by an HR employee to return to his doctor, to determine whether additional restrictions were necessary.

Thomsen did not return to his doctor. He was fired shortly afterward, for refusing to work an overtime shift. Thomsen then filed a wrongful termination complaint against Georgia-Pacific. One of his claims was that his employer violated California’s Fair Employment and Housing Act (FEHA) by failing to provide reasonable accommodation for his disability. At trial, Georgia-Pacific moved to dismiss this claim.

Many employers would look at these facts and conclude that Georgia-Pacific clearly had the law on its side. After all, when Thomsen was unable to perform his old job due to his injuries, Georgia-Pacific assigned him a new one – one that Thomsen agreed was within his capabilities. And when Thomsen asserted that he was unable to perform his new job, Georgia-Pacific’s response was to ask for documentation, rather than firing or suspending him.

But according to a federal court, it is not that simple. The U.S. District Court for the Eastern District of California rejected Georgia-Pacific’s motion to dismiss Thomsen’s claim that Georgia-Pacific failed to accommodate his disability. The court found that a reasonable jury could find that Georgia-Pacific was obligated to engage with Thomsen to assess whether modifications to the position were possible.

Wrongful Termination Complaint – An “Interactive Process”

In reaching its conclusion, the court pointed to two particular allegations of Thomsen’s wrongful termination complaint.

  • Thomsen’s wrongful termination complaint alleged that his new position required him, at times, to lift more than 30 pounds – which his doctor had already confirmed was too much for him to handle.
  • Thomsen’s wrongful termination complaint also alleged that a machine operator he worked with refused to accommodate his needs, and kept the machine running even when it was backed up.

Under FEHA, an employer must “engage in a timely, good faith interactive process with the employee or applicant to determine effective reasonable accommodations, if any” after an employee requests reasonable accommodations due to a disability or known mental condition. The court held that a reasonable jury could conclude that after Thomsen expressed concerns about the requirements of his new position, Georgia-Pacific was obligated to engage in a dialogue with him before deciding that he must return to his doctor. [Read more…]

Filed Under: Disability Discrimination Tagged With: , , , , ,

Disability Discrimination Clarified By CA Appeals Court

March 28, 2016 by

Disability DiscriminationWallace v. County of Stanislaus: A California appeals court clarifies what counts as disability discrimination. Dennis Wallace filed a complaint against Stanislaus County, California after he was fired from his job with the sheriff’s department after suffering a knee injury. He alleged that he was fired due to a disability, even though he could have performed his job with proper accommodations – and thus the county violated the California Fair Employment and Housing Act (FEHA).

At trial, the jury found that the county treated Wallace as a person with a disability, and that Wallace was capable of performing his job with or without the proper accommodations. But despite these findings, the jury sided with the county, and Wallace’s complaint of disability discrimination was dismissed.

Why? Because the judge had instructed the jury that Wallace had a burden to demonstrate that the county regarded or treated him “as having a disability in order to discriminate.” In other words, the jury was told that Wallace needed to show that the county was motivated by ill will toward Wallace and used disability as an excuse to fire him. The jury found that this burden had not been met, and so the disability discrimination claim was resolved in favor of the county.

Wallace appealed, arguing that the jury instructions were incorrect, and that FEHA prohibits disability discrimination even when an employer has no animus against the employee. The Court of Appeal for the Fifth Appellate District of California agreed and remanded the case to the trial court for further proceedings.

The Court’s Reasoning

The Supreme Court set a well-known standard for employment discrimination cases in McDonnell Douglas Corp. v. Green. Under McDonnell Douglas, there is a three stage test for complaints.

  • First, the burden is on the plaintiff to make a prima facie showing that employment discrimination took place.
  • If the plaintiff meets this burden, then the burden shifts to the employer, who must provide a legitimate reason for taking the negative employment action in question (such as a firing),
  • If the employer meets this burden, then the burden shifts back to the plaintiff, who can prove that discrimination took place by providing evidence that the employer had a discriminatory motive. This often involves demonstrating that the reason given by the employer was just a pretext for discrimination.

In Wallace, the appeals court clarified that the McDonnell Douglas test is only to be used if the plaintiff has no direct evidence of discrimination. In Wallace, there was direct evidence of discrimination, being as the employer acknowledged that Wallace’s disability was the reason he was fired.

The court held that when there is direct evidence of discrimination based on disability, the focus should not be on the employer’s motivations. Rather, the focus should be on whether the employee was able to perform essential job functions, whether a reasonable accommodation would allow the employee to perform these functions, and whether the accommodation would impose too much of a hardship on the employer. Thus, the court held that the instruction given to the jury was in error. [Read more…]

Filed Under: Disability Discrimination, Employment Discrimination Tagged With: , , , , , , , ,

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