Archives: Disability Discrimination

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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

U.S. Supreme Court Revises Test For Pregnancy-Based Discrimination

Court Revives 2008 Pregnancy Bias Suit by Former UPS Employee Who Was Denied Light Duty Work Accommodation On March 25th, the United States Supreme Court vacated a lower court’s ruling in favor of United Parcel Service, Inc. (UPS) against a former delivery truck driver, Peggy Young, who claimed, among other things, that she was discriminated … Continue Reading

EEOC Begins Process to Regulate Employer-Sponsored Wellness Programs

Many employers offer wellness programs to employees—such as providing rewards to employees for participating in health and wellness programs (e.g., weight loss, smoking cessation) and achieving particular results, or penalizing employees for declining to participate in such programs in the form of higher insurance premiums—as a way to encourage healthier, more productive workforces while reining … Continue Reading

10th Circuit Reverses EEOC Win After Lower Court Applied Wrong ADA Direct-Threat Standard

On March 16, the Tenth Circuit Court of Appeals – which has jurisdiction over appeals from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming – drove home that when it comes to jury instructions, the devil is in the details.  Reasoning that a lower court jury “might have relied on the erroneous direct-threat standard,” the … Continue Reading

Utah Passes Law Prohibiting LGBT Employment Discrimination

On March 12, Utah Governor Herbert signed into law S.B. 296, which amends the Utah Antidiscrimination Act to prohibit discrimination in employment by Utah employers on the basis of sexual orientation and gender identity. Notably, and perhaps not surprisingly given that 60% of Utah residents identify as Mormons, although the law had the support of … Continue Reading

EEOC Charge Filing in 2014: Number of Charges Down, Retaliation Claims Up

The U.S. Equal Employment Opportunity Commission (EEOC) has released its annual statistical report  detailing charge filing activity in 2014.  The EEOC, the federal administrative agency which investigates and prosecutes claims of employment discrimination, harassment, and retaliation under a number of employment and civil rights statutes, reported 88,778 charges filed in 2014, down from 93,727 charges filed … Continue Reading

Drugs research by the UK Employment Tribunal – not what the doctor ordered

If as an Employment Tribunal you are not satisfied by the evidence which the parties have put before you, are you entitled to go off and get some more of your own?   This rather unusual question was considered by the Employment Appeal Tribunal last month in East of England Ambulance Service NHS Trust –v- Sanders.  … Continue Reading

EU Advocate General’s decision on obesity as disability makes fat lot of difference

In the end, the Advocate General reached the inevitable conclusion – that obesity by itself is not automatically a disability, but can be if and when it “hinders full participation in professional life on an equal footing with other employees”, or (translated into the UK Equality Act’s definition) has a substantial adverse effect on a … Continue Reading

Is Telecommuting a Reasonable Accommodation for a Disability in the US?

In the US, under the Americans with Disabilities Act (ADA) employers are required to provide qualified individuals who have a disability with a reasonable accommodation absent an undue hardship.  Whether working from home is a reasonable accommodation is a fact intensive analysis that should be conducted for each circumstance.    However, last week, the Sixth Circuit … Continue Reading

Give Me Sunshine Or Give Me Death!

We are in the midst of below-freezing temperatures here in Cleveland, Ohio.  Other parts of the world have been experiencing a blanket of snow for weeks already.  It’s beautiful actually to see the snow sprinkle down and gather on tree limbs…beautiful for about two days, if you don’t have to leave the house and can … Continue Reading

UK Court rejects employer’s reliance on inadequate disability opinion

Your employee is sick a lot, mostly stress and related issues.  Keen to respect your statutory obligations if you have any, you repeatedly ask your external Occupational Health provider if this means he is disabled.  You are repeatedly told that he is not, though without any particular depth of enquiry on your part and without … Continue Reading
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