Category Archives: Americans With Disabilities Act

L&E Evolution Part II: Discrimination

Source: Lorene D. Park, Labor Law Journal, Vol. 69 no. 4, Winter 2018
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This is part two of a multi-part series on the evolution of labor and employment law in the United States.

When President Lyndon B. Johnson urged Congress, in the wake of President John F. Kennedy’s assassination, to pass the Civil Rights Act of 1964 (Title VII), he spoke of the need to eliminate “every trace of discrimination and oppression that is based upon race or color.” Here we are, more than 50 years later, and antidiscrimination laws are still a work in progress, moving in directions that earlier generations of lawmakers would likely find surprising: for example, cases involving religious accommodation of atheists, debates over whether adverse actions due to spousal jealousy are “because of ” sex, and discrimination based on perceived disabilities, to mention a few.

New laws have been enacted, including GINA and the OWBPA, and existing laws have expanded, including the ADA and its definition of disability. Court precedent has also evolved in significant ways. For example, some courts now hold that discrimination based on sexual orientation is discrimination “because of … sex” under Title VII, while other courts hold otherwise. Our political climate too has fostered rapid changes in how agencies enforce labor and employment laws, and employers are having a hard time keeping up.

All of this has been influenced, of course, by wave after wave of social movements large and small, usually with a catchphrase and now often prefaced with a hashtag (e.g., #Black Lives Matter, #MeToo). Given the ever-changing legal landscape of antidiscrimination laws, the purpose of this article is to assess what the state of the law is and to consider the directions we are going…..

Related:
L&E Evolution: Redefining Employment Relationships
Source: Lorene D. Park, Labor Law Journal, Vol. 69 No. 1, Spring 2018
(subscription required)

Rapidly advancing technology, cultural changes, and a sharply divided political landscape have so changed the workplace that lawmakers are struggling to catch up and tailor labor and employment laws to reflect these changes, to establish cross-jurisdictional consistency, and to enable employers and practitioners to make decisions based on solid ground. Nowhere is this more obvious than in battles over the most basic of definitions: “employer” and “employee.” This is no simple matter of black letter law, at least not anymore. For example, the proliferation of smart phones and other technology has led to online platforms for gig workers, and a simple “click” of the mouse can create a contract on which companies may rely to require arbitration or to disclaim a traditional employment relationship…..

Trusting states to do right by special education students is a mistake

Source: Matthew Brock, The Conversation, September 28, 2018

On Sept. 20, the U.S. Department of Education released a new framework to “rethink” how the department oversees special education services for students with disabilities.

As part of this framework, the department plans to provide states with “flexibility” and to “acknowledge” that states are “in the best position to determine implementation of their programs.”

This flexibility relates to how states satisfy the provisions in the Individuals with Disabilities Education Act – a federal civil rights law known as IDEA meant to ensure all students with disabilities receive a free and appropriate education.

In my opinion, the assumption that states are in the best position to determine implementation of their programs related to the IDEA law is a faulty one. So is the notion that relaxing enforcement of these provisions would have a positive impact on students.

Terminating A Depressed Employee

Source: Maureen Minehan, Employment Alert, Vol. 35 No. 14, July 11, 2018
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Is terminating an employee with depression a recipe for trouble? Do you need to go “above and beyond” to avoid any appearance of discrimination? …. While the Greenleaf case is just beginning its journey through the courts, it offers employers a reminder that depression can be a covered disability under the Americans with Disabilities Act (ADA) and the many state laws that mirror it. This means employers are permitted to terminate employees with depression if they aren’t meeting performance standards, but only if the proper steps have been taken first….

Assessing the Impact of the Americans with Disabilities Amendments Act of 2008: An Analysis of Litigation Efforts under Title I of the Act

Source: Charles E. Mitchell, Employee Relations Law Journal, Vol. 43, No. 3, Winter 2017
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Congress created the Americans with Disabilities Act to eliminate discrimination against citizens with disabilities. The Act covered employment, housing, accommodation, voting, and more. The U.S. Supreme Court issued decisions that weakened employment provisions in the Act. Congress amended the Act to negate those decisions. The author of this article provides an analysis of court and administrative decisions following the amendments, which reveals that private litigation and administrative rulings by federal agencies show an increase in favorable rulings for victims of employment disability discrimination.

Are Zero Tolerance Drug Testing Policies About to Go Up in Smoke?

Source: Nathaniel M. Glasser, Employee Benefit Plan Review, Vol. 72 no. 2, October 2017
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In an important recent decision, the Massachusetts Supreme Judicial Court recently held that a qualifying patient who has been terminated from employment for testing positive for marijuana as a result of her lawful medical marijuana use may state a claim of disability discrimination under that state’s anti-discrimination statute. Much like a similar decision in Rhode Island, this holding has significant implications for employers that drug test for marijuana use because 29 states plus the District of Columbia have enacted legislation legalizing medical or recreational marijuana use, or both.

Many People With Disabilities Are Being Paid Way Below the Minimum Wage, and It’s Perfectly Legal

Source: Ashley Dejean, Mother Jones, August 8, 2017

Chris Wilson is 33 years old and has Down syndrome. For the last three years, he’s worked at Kandu Industries, a packaging and assembly factory in Janesville, Wisconsin. He usually makes between $2 and $3 an hour, depending on whether he is packing brackets used in playground equipment or packaging food.  

…. Kandu Industries can pay Chris and roughly 150 other workers substantially below the federal minimum wage of $7.25 an hour because of a 1938 provision in the Fair Labor Standards Act that permits employers, who apply to the Department of Labor for a waiver, to pay lower wages to people with disabilities. According to the department, about 20 percent of people with disabilities participate in the workforce, and of that group, about 3 percent, or approximately 195,000 workers, are being paid subminimum wages. These workers typically make well below the minimum wage, sometimes as low as “pennies per hour,” according to the Department of Justice…..

Facts for Features: Anniversary of Americans With Disabilities Act: July 26

Source: U.S. Census Bureau, Facts for Features, Release Number: CB17-FF.11, June 6, 2017

From the press release:
On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in employment, transportation, public accommodations, commercial facilities, telecommunications, and state and local government services.
This Facts for Features provides a demographic snapshot of the U.S. population with a disability and examines various services available to them. The statistics come from various Census Bureau censuses and surveys, covering differing periods of time.

Pointing Out: How Walmart Unlawfully Punishes Workers for Medical Absences

Source: A Better Balance, June 2017

From the summary:
Walmart is proud of its heritage as a family-founded company. Ironically, while the Walton family touts its family values, Walmart’s absence control program punishes workers who need to be there for their own families. Walmart disciplines workers for occasional absences due to caring for sick or disabled family members and for needing to take time off for their own illnesses or disabilities. Although this system is supposed to be “neutral,” and punish all absences equally, along the lines of a “three strikes and you’re out” policy, in reality such a system is brutally unfair. It punishes workers for things they cannot control and disproportionately harms the most vulnerable workers.

Punishing workers for absences related to illness or disability is not only unfair, it’s often against the law. Based on our conversations with Walmart employees as well as survey results of over 1,000 current and former Walmart workers who have struggled due to Walmart’s absence control program, Walmart may regularly be violating the federal Family and Medical Leave Act (FMLA) by failing to give adequate notice to its employees about when absences might be protected by the FMLA and by giving its employees disciplinary points for taking time to care for themselves, their children, their spouses or their parents even though that time is covered by the FMLA.

Similarly, we allege that Walmart’s policies and practices of refusing to consider doctors’ notes and giving disciplinary points for disability-related absences is a violation of the Americans with Disabilities Act (ADA). The ADA protects workers with disabilities from being disciplined or fired because of their disabilities. It also requires employers to engage in a good faith interactive process to determine an appropriate accommodation for workers with disabilities. Unfortunately, as detailed in this report, this is too often not Walmart’s practice. Other federal, state and local laws such as pregnancy accommodation protections, and sick time laws, could also be at play. Walmart’s policies and practices are not in compliance with many of these laws.

Simply put: Giving a worker a disciplinary “point” for being absent due to a disability or for taking care of themselves or a loved one with a serious medical condition is not only unfair, in many instances, it runs afoul of federal, state and local law.
Related:
Press release