Archives: Disability Discrimination

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Obesity Continues to Divide Courts: Washington’s High Court Says Obesity Qualifies as an Impairment (US)

As we previously discussed here and here, courts are split regarding the extent to which obesity qualifies as a disability under the Americans with Disabilities Act (“ADA”). The Second, Sixth, Seventh and Eighth Circuit Courts of Appeal have held that obesity must be accompanied by an underlying physiological disorder for it to constitute a disability, … Continue Reading

Separating doubt from dismissal – Headmaster narrowly escapes caning in disability harassment (UK)

All the best-practice recommendations about accommodating employees with disabilities stress the importance of dialogue with them about the limitations their disability may impose and the adjustments which might be made to help overcome them. Unimpeachable advice in principle, but not without risk in practice, as it turns out.… Continue Reading

Seventh Circuit: Obesity Alone Is Not A Disability Under the ADA (US)

As we previously reported here, the issue of whether obesity is a legally-protected impairment is complex, and jurisdictions differ on the extent to which they consider obesity to be a disability under the Americans with Disabilities Act (“ADA”).  On June 12, 2019, the United States Court of Appeals for the Seventh Circuit joined the Second, … Continue Reading

Later knowledge taints earlier dismissal – employers’ duties in appeals (UK)

You are hearing the appeal of an employee with less than two years’ service dismissed on the grounds of admitted poor conduct. What can possibly go wrong? Certainly not the seeming afterthought on the employee’s part, not mentioned at the dismissal stage, that her conduct might in part be explained by a depressive condition of … Continue Reading

Does Obesity Qualify as a Disability Under the ADA? – It Depends on Who You Ask (US)

According to the most recent data from the Center for Disease Control, more than one-third of American adults are obese.  A person is considered obese when their weight is higher than what is considered as a healthy weight for a given height.  With obesity impacting such a large portion of the American public, employers are … Continue Reading

The earth is doomed, and other reasons not to send an employee on leave (UK)

The New South Wales Civil and Administrative Tribunal in Australia last year awarded an employee AU$20,000 in compensation for pain and suffering where her employer forced her onto “personal leave” for assumed mental illness based on her discussion of conspiracy theories in the workplace. Though an Australian case, it contains valid lessons for UK employers … Continue Reading

Ninth and Eleventh Circuits: Reporting To Work Impaired, Failing Drug Test, And Failing To Request Accommodation Doom Employees’ ADA Discrimination Lawsuits

As most readers of this blog are aware, the Americans with Disabilities Act (“ADA”) and analogous state laws prohibit employers from discriminating against qualified employees (and applicants) based on known physical or mental disabilities, and also require employers to provide those employees with reasonable accommodations for their disabilities.  Although broad in their protections, these laws … Continue Reading

Healthcare Worker’s Vaccine Refusal Not Immunized by Americans with Disabilities Act (US)

On December 7, 2018, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously held in Hustvet v. Allina Health System that an employer did not unlawfully terminate an employee who refused to receive a rubella vaccination.  The plaintiff, a healthcare specialist working with potentially vulnerable patients, requested an accommodation exempting … Continue Reading

Three New State Laws Legalize Marijuana Use, Sparking More Confusion and Igniting Further Conflict With Federal Law (US)

The mid-term elections are still on people’s minds, as recounts and run-offs for federal congressional and state gubernatorial candidates are finally wrapping up.  Meanwhile, and largely taking a media-coverage backseat to these high-profile races, many new state initiatives became law as a result of the mid-terms, three which involved legalizing marijuana for recreational or medical … Continue Reading

Written confirmation not a reasonable adjustment for a queasy employee (UK)

Here is an interesting little question about how far an employer needs to formalise steps taken to accommodate an employee’s disability. Mr Brangwyn went to work for South Warwickshire NHS Foundation Trust in 2008 as Occupational Therapy Technician.  This was not directly a medical role but did involve some time escorting patients around the building … Continue Reading

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
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