Archives: Disability Discrimination

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First Circuit Nixes ADA Suit Finding that Disabled Employee Was Not A “Qualified Individual” (US)

Not pulling any punches, the United States Court of Appeals for the First Circuit recently issued a decision finding against a disabled former Burger King franchise employee, explaining that although its admittedly harsh decision was a “lesson straight out of the school of hard knocks,” “[n]o matter how sympathetic a plaintiff or how harrowing his … Continue Reading

How voluntary is voluntary overtime? – the disability discrimination risk

Back in June 2016, I wrote a piece on the Employment Appeal Tribunal’s decision in Carreras -v- UFPR concerning the extent to which an employer’s expectations can amount to a provision, criterion or practice (PCP) for disability discrimination purposes (specifically, as a trigger for the obligation to make reasonable adjustments). That post is here https://www.employmentlawworldview.com/when-overtime-goes-bad-employers-duties-to-clarify-expectations-for-disabled-staff/.… Continue Reading

Seventh Circuit Explains: The ADA Is Not A “Medical Leave” Statute

On September 20, 2017, the Seventh Circuit in Severson v. Heartland Woodcraft, Inc. held that a long-term leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  As we all know, the ADA prohibits employers from discriminating against “qualified individuals” with disabilities, defining such individuals as applicants or employees who, with … Continue Reading

Dismissing for long-term sickness – when is enough enough?

Legally-speaking O’Brien – v – Bolton St Catherine’s Academy as reported last week is mostly about how much overlap there is between fairness for unfair dismissal purposes and justification in disability discrimination terms (in brief, very substantial).  It is also a fine illustration of how hard it is to overturn an Employment Tribunal judgement on … Continue Reading

Extended Comment Period Gives Employers More Time to Weigh In On EEOC’s Proposed Guidelines On Unlawful Harassment

The U.S. Equal Employment Opportunity Commission (EEOC) has provided additional time for public comment on its recently-issued proposed guidelines on unlawful harassment.  The 75-page draft, which issued on January 9, 2017, expands upon existing interpretations of many aspects of workplace harassment, including prohibited bases for harassment, conduct constituting illegal harassment, the role of social media, … Continue Reading

EEOC Issues New Guidance on the Rights of Applicants and Employees with Mental Health Conditions

On December 12, 2016, the Equal Employment Opportunity Commission published a resource document explaining the legal rights of workers with mental health conditions under the Americans with Disabilities Act. Each year, approximately 5% of charges filed with the EEOC allege discrimination or harassment based on mental health conditions. While not announcing new law, the guidance … Continue Reading

EEOC Issues Long-Awaited Retaliation Guidance

On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) issued its final “Enforcement Guidance on Retaliation and Related Issues,” which replaced the Agency’s nearly-20-year-old 1998 Compliance Manual, Section 8: Retaliation.  As the title clearly implies, the guidance primarily sets forth the Agency’s evolving interpretations of the law of retaliation.  It also focuses on the … Continue Reading

Arizona Attorney General Intervenes in Serial Arizonans with Disabilities Act Cases

Arizona is just one of many states in which business owners – many of them, small business owners – are being inundated with lawsuits filed by disabled individuals or disability advocacy organizations alleging inaccessible public accommodations.  These serial litigants allege that the defendants have failed to comply with the Americans with Disabilities Act (“ADA”) or … Continue Reading

When overtime goes bad – employers’ duties to clarify expectations for disabled staff

When you work late in the office, why? Because it will make the following day that bit less fraught?  Because you do not want to be seen as a clock-watcher?  Because you think it will help your bonus or job security?  Because you believe it is the right thing to do for the good of … Continue Reading

Threshold for a protected belief under the Equality Act reaches a new low

Does really just anything count as a philosophical belief these days?  An impression you could reasonably take away from the headlines in the Employment Appeal Tribunal’s decision in Harron –v- Chief Constable of Dorset Police last week but happily not one completely borne out by closer reading. Mr Harron considered himself to have been discriminated … Continue Reading

Time Off as an ADA Accommodation? You Better Be-Leave It!

Many employers maintain policies that restrict the amount of time an employee can take off from work, or that prohibit employees who are ineligible for leave under the Family and Medical Leave Act to take time off from work at all even when ill or injured.  But a new resource document issued by the EEOC … Continue Reading

Statutory Damage Caps Negate Substantial Jury Award – Save an Employer Millions

Although a jury recently reached a $10.5 million disability discrimination verdict against Norfolk Southern Railway, the company ended up with a final judgment of only $396,521 thanks to a federal law that limits the amount of damages that may be awarded. Warren Whitted, a former Norfolk Southern road conductor, filed suit against the company in … Continue Reading

Doing the Lambeth Talk – Mr Livingstone, I presume

An interesting new defence to discriminatory harassment claims has been trialled this month by none other than former London Mayor, Ken Livingstone. Our Ken was recently appointed to a senior role in Labour’s Defence Review. Objections were heard from a number of quarters including Shadow Defence Minister Kevan Jones on the seemingly not unreasonable grounds … Continue Reading

Mental health in the City workplace – how are you doing?

No job within the Square Mile is immune from its own stresses or strains.  As the City of London Corporation’s Business Healthy blog notes (https://www.businesshealthy.org/blog/), the recent economic climate has exacerbated these through the invariable requirement that businesses reduce their cost base without adversely affecting their profits.  Undoubtedly, this drive to do more with less … Continue Reading

Who drove change of disciplinary direction? – When HR’s advice goes too far

Do you ever think that your line managers are making such a hash of a grievance or disciplinary process that it would be easier to do it yourself?  Do you watch in horror as they stumble blindly but unerringly towards what is clearly the wrong decision?  Are you tempted to give them a nudge in … Continue Reading

Helpful guidance on TUPE’s treatment of long-term sick employees

In almost every TUPE transfer, whether a business sale or a service provision change (SPC), you come eventually to the chap receiving permanent health insurance benefits.  The transferor has no need for him any longer and the transferee has no wish to bump up its own PHI premiums for someone who is seemingly never going … Continue Reading

Ruby waxes lyrical (but misguided) on mental health disclosures

Ruby Wax is a well-known and respected campaigner for mental health issues.  Imagine my surprise, therefore, to open my Times Online (behind a paywall) this week to the headline “Don’t tell your boss if you’re mentally ill, Ruby Wax advises“. I was sure that this was the Times Online taking a quotation out of context to … Continue Reading

Is the UK’s Fit for Work scheme fit for purpose?

Time for a quick look at the Guidance issued by the Department of Work & Pensions on the new Fit for Work (FfW) Scheme https://www.gov.uk/government/collections/fit-for-work-guidance. There are two ways of looking at this.  First, that the Guidance is a gallant attempt to explain in simple terms how this Scheme may (I use the word advisedly) … Continue Reading

Supreme Court Rules EEOC Conciliation Efforts Are Subject to Oversight

On April 29, the US Supreme Court held unanimously that courts may review the Equal Employment Opportunity Commission’s (EEOC) efforts to informally resolve disputes between employers and employees. The EEOC, which is charged with policing compliance with employment discrimination laws, is required by statute to first try informal mediation methods to resolve disputes between employers … Continue Reading

EEOC Proposes Amendments to ADA Regulations Relating To Employer Wellness Programs

The EEOC has proposed amendments to its regulations under the Americans with Disabilities Act (“ADA”) as they relate to employer wellness programs.  These proposed amendments were published on Monday, April 20, triggering a 60-day public notice and comment period.  The proposed amendments aim to define which employer wellness programs are valid under the ADA, which … Continue Reading

Federal Appeals Court says No ADA Violation In Denying Worker’s Request to Telecommute

From Lauren Kuley via Squire Patton Boggs’ Sixth Circuit Appellate Blog: On April 10, the Sixth Circuit issued a significant decision on telecommuting accommodations for disabled employees.  In EEOC v. Ford Motor Co., a divided en banc Sixth Circuit affirmed summary judgment for Ford on claims brought under the Americans with Disabilities Act by the Equal Employment Opportunity … Continue Reading

Finally the plight of pregnant workers across Australia is acknowledged – morning sickness is a recognised disability!

In the aftermath of International Womens’ Day, the history books were once again re-written when the Victorian Civil and Administrative Tribunal classified a pregnant worker’s severe morning sickness as a disability under the Equal Opportunity Act 2010 (Vic). Ms Bevilacqua was a full time Sales Consultant at a Telstra store up until October 2013 when … Continue Reading
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