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Employers: Understand When Disability Discrimination Occurs

In multiple cases this summer, the Equal Employment Opportunity Commission (EEOC) has taken action against employers for allegedly discriminating against disabled individuals.

This follows an increase in the number of disability discrimination charges filed during the previous six years (see right-hand box). The EEOC has not given a reason for the increase but most HR professionals and employment law experts attribute it to factors including the aging population and an expanded disability definition that went into effect in January 2009.

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Under federal law, disability discrimination can occur when:

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• An employer or other entity covered by the law treats a qualified employee or applicant unfavorably because he or she has a disability.

• An individual is treated less favorably because he or she has a history of a disability (such as cancer that is controlled or in remission).

• A person is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor -- even if he or she does not have such an impairment.

• An individual is treated unfavorably based on his or her relationship with a disabled person. For example, it is illegal to discriminate against an employee because a child or spouse has a disability.

The federal Americans with Disabilities Act requires covered employers to provide reasonable accommodations to employees and applicants with disabilities, unless doing so would cause significant difficulty or expense for the employer.

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Here are six recent disability discrimination cases, according to the EEOC :

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11 Employee fired hours after starting. A Pennsylvania provider of industrial cleaning, facility management and labor support services fired an employee because of his disability in violation of federal law, the U.S. EEOC charged in a lawsuit announced July 16.

According to the lawsuit, Todd Semko was hired by the company as a laborer. In a medical questionnaire form, he revealed he has an implanted, battery-powered Transcutaneous Electrical Nerve Stimulation (TENS) unit in his lower back for a back impairment. Semko also noted on the form that he didn't need any job modifications or accommodations to perform the functions of the job.

On his first day, the company placed Semko in a training class. But about two hours later, he was unexpectedly summoned from the class to speak with an occupational health nurse by phone. According to the EEOC, the nurse asked the employee about his TENS unit and told him he wouldn't be able to charge it at the steel plant where he would likely be assigned

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Semko responded that he charged the unit at home and it held a charge for months so he wouldn't need to recharge it at work. Semko also informed the nurse that he was medically cleared to work with no restrictions, but the nurse told him that he couldn't be employed because the company couldn't guarantee a place for him to charge the TENS unit.

Company records show that it discharged Semko hours after hiring him because he was deemed "not medically qualified" by its nurse. The company never requested any additional medical information from Semko's doctor regarding his condition, the EEOC stated. (MPW Industrial Services, Inc., No. 2:13-cv-01011)

22 Employee with prosthetic leg terminated. One of the nation's largest commercial staffing companies will pay $100,000 under a consent decree entered June 25, which ended a disability discrimination lawsuit brought by the EEOC.

The EEOC alleged the company violated the Americans with Disabilities Act when it terminated a woman with a prosthetic leg because of her disability.

The staffing firm assigned Dorothy Shanks to work at an Illinois facility inspecting Sony televisions on a temporary basis. On Shanks's second day on the job, according to the EEOC, a company employee told her that she was being removed from the work site because they did not want anyone to bump into her or knock her down. The EEOC alleged that Shanks was told the company would find her another placement, but she was never sent on another assignment following the termination.

The EEOC also sued Sony, based on allegations that its manager requested Shanks's removal from the assignment. EEOC's case against Sony is still pending. (Staffmark Investment LLC and Sony Electronics, Inc., No. 12-cv-9628)

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33 Power company settles lawsuit over employee with postpartum depression. An Indiana power grid operator for much of the Midwest will pay $90,500 and furnish other relief to settle a disability discrimination lawsuit by the EEOC, the agency announced July 11.

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According to the EEOC's suit, a power company employee suffered from postpartum depression, a condition the employee made known to the company. When she requested leave time to help her resolve the condition -- leave that was available under the company's policies -- the company denied her request and fired her for lack of attendance. The employee then filed a discrimination charge with the EEOC.

The company waited more than a month after the employee's anticipated return-to-work date to fill the position, and then allowed the new employee to delay her own start date by another three months. According to the EEOC, this was done in spite of the company insisting that having an employee in the position was critical.

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Although postpartum depression is not a permanent condition, the EEOC stated that it substantially limited more than one of the employee's major life activities for several months when the company fired her. This is one of the touchstones of disability under the ADA. The effects of an impairment expected to last less than six months can still be substantially limiting under the ADA. (Midcontinent Independent Transmission System Operator, No. 1:11-cv-01703)

44 Bookkeeper with vision impairment fired. A California management consulting company violated federal law when it failed to accommodate an employee with retinitis pigmentosa and then subsequently fired him because of his disability, the EEOC charged in a lawsuit filed July 3.

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According to the EEOC, Farhang Dahmubed was hired as a senior bookkeeper at Riviera Consulting & Management Consulting, LLC. He told his employer about his vision condition within the first week of his employment. To accommodate his impairment, Dahmubed arranged (on his own initiative) for additional light near his immediate workspace.

However, approximately one month later, his supervisor and the owner informed the employee that he was being terminated due to his inability to drive to deliver paychecks and pick up mail. The EEOC asserts this was the first time driving was raised as a job requirement, and although the employee suggested possible solutions to accomplish these tasks, the company refused to consider any accommodations and instead fired him.

55 Employee denied accommodation and fired. An Ohio medical transportation services company violated federal law by denying a reasonable accommodation to, and subsequently firing, an employee because of his multiple sclerosis, the EEOC charged in a lawsuit announced July 2.

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According to the EEOC's suit, John Adair worked at the company since 2009 as an EMT-paramedic. From March to October 2010, Adair requested additional leave as a reasonable accommodation for his MS, but instead was issued disciplinary actions for absences related to his disability. In October 2010, Adair requested, as a reasonable accommodation, additional points under the company's no-fault attendance policy. The company responded to the request for accommodation by firing Adair, the EEOC stated. (Lifecare Medical Services Inc., No. 5:13-cv-01447)

55 Employee denied accommodation and fired. An Ohio medical transportation services company violated federal law by denying a reasonable accommodation to, and subsequently firing, an employee because of his multiple sclerosis, the EEOC charged in a lawsuit announced July 2.

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According to the EEOC's suit, John Adair worked at the company since 2009 as an EMT-paramedic. From March to October 2010, Adair requested additional leave as a reasonable accommodation for his MS, but instead was issued disciplinary actions for absences related to his disability. In October 2010, Adair requested, as a reasonable accommodation, additional points under the company's no-fault attendance policy. The company responded to the request for accommodation by firing Adair, the EEOC stated. (Lifecare Medical Services Inc., No. 5:13-cv-01447)

66 Employee with arthritis fired after requesting accommodation. A medical services provider serving the Detroit metropolitan region violated federal law by both denying a disabled employee a reasonable accommodation and firing her because of her disability, the EEOC alleged in a lawsuit filed June 26.

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According to the EEOC's suit, Gloria Bowens worked for the organization as a medical biller. She requested a two-week leave of absence to accommodate her rheumatoid arthritis. The medical provider denied her leave request and discharged her because of her disability.

The lawsuit seeks back pay, as well as compensatory and punitive damages. (Detroit Community Health Connection, No. 2:13-cv-12801)

For more information about complying with the ADA, consult with your HR professional and employment attorney or click hereto read "A Primer for Small Business" from the EEOC.

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