Source: Maureen Minehan, Employment Alert, Vol. 35 No. 14, July 11, 2018
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….
Source: Charles E. Mitchell, Employee Relations Law Journal, Vol. 43, No. 3, Winter 2017
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.
Source: Nathaniel M. Glasser, Employee Benefit Plan Review, Vol. 72 no. 2, October 2017
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.
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…..
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.
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.
Source: Deborah A. Widiss, Indiana University Maurer School of Law, Indiana Legal Studies Research Paper No. 369, Last revised: April 25, 2017
From the abstract:
Pregnant women sometimes ask employers for accommodations – such as being able to sit on a stool or avoid heavy lifting – to permit them to work safely and productively. In 2015, in Young v. United Parcel Service, the Supreme Court held that the Pregnancy Discrimination Act (PDA) requires courts to scrutinize carefully denial of such requests. The facts in Young arose prior to the effective date of the ADA Amendments Act of 2008 (ADAAA); accordingly, the Court did not address how the ADAAA, which expanded the range of health conditions that qualify as disabilities, affects claims for accommodations under the PDA. This Article fills that gap, updating analysis from an earlier article I wrote on this subject to incorporate the Court’s holding in Young and to discuss how lower courts are applying Young.
The PDA mandates that pregnant employees be treated “the same” as other employees “similar in their ability or inability to work.” Young established that employees who receive accommodations pursuant to the ADA or workers’ compensation laws may be used as comparators in PDA analysis, rejecting lower court decisions to the contrary. The Court stated that evidence that an employer routinely accommodates other health conditions but refuses to provide support for pregnancy is strong circumstantial evidence of discriminatory bias.
The ADAAA magnifies the importance of this holding; it also largely resolves the Young Court’s concern that the PDA not be interpreted to confer a “‘most-favored-nation’ status” on pregnant employees. Under the ADAAA and its implementing regulations, employers must provide reasonable accommodations for impairments that substantially limit an individual’s ability to lift, bend, walk, or stand, even on a temporary basis. Thus workplace accommodations for health conditions that cause limitations like those caused by pregnancy should now be commonplace (and many conditions associated with pregnancy may qualify as disabilities themselves). Robust enforcement of the PDA’s “same treatment” mandate does not create a danger that pregnant employees will be treated better than other employees; rather, it helps ensure that pregnant employees are not consistently treated less well than other employees.
Source: Labor Project for Working Families, AFL-CIO, SEIU, A Better Balance, and the Center for WorkLife Law at the University of California, Hastings College of the Law, 2016
…This manual provides shop stewards the tools they need to effectively represent pregnant workers. It provides practical tips for counseling them about critical workplace issues. It explains the laws and common contractual provisions that may assist pregnant women who have been discriminated against or who need reasonable accommodations to continue working while maintaining a healthy pregnancy. And it provides guidance on grieving contractual violations on behalf of pregnant workers. Last, it provides contact information for organizations that can provide free advice if you need more information.
The laws and contractual provisions discussed in this manual provide legal rights, but pregnant workers benefit from these protections only when they are enforced. It’s the job of the shop steward to empower workers and demand employer compliance. This manual is meant to guide you in educating pregnant workers and enforcing their hard-won rights….
Source: Michelle D. Deardorff, The Conversation, August 23, 2016
….Part of the reason for this, I believe, is that scholars have largely failed to study the issue. When researchers do address pregnancy and employment, they tend to focus on the exceptions or women in professional and managerial employment, not the lives of working-class women.
“Pregnancy and the American Worker,” a new book I coauthored with James Dahl, aims to remedy this lack of scholarship by examining how U.S. courts have interpreted pregnancy discrimination under the two acts meant to prevent it. Our research suggests that one reason the issue has received so little attention is that pregnancy discrimination disproportionately affects hourly workers – typically poor or working class – a group often without a voice and frequently ignored by political elites…..
Source: Samuel R. Bagenstos, University of Michigan Law School, Public Law Research Paper No. 509, June 15, 2016
From the abstract:
The relationship between the American labor movement and identity-based social movements has long been a complicated one. Organized labor has often been an ally of civil rights struggles, and major civil rights leaders have often supported the claims and campaigns of organized labor. Recall the reason Dr. Martin Luther King was in Memphis on the day he was assassinated — to lend his support to a strike by unionized sanitation workers. But unions and civil rights groups have found themselves on the opposite sides of intense battles as well. The relationship between the labor movement and the disability rights movement is just as complicated. Organized labor has often been an ally of disability rights efforts. But in some of the highest stakes battles for workers and individuals with disabilities, many unions and disability rights groups have opposed each other. Although many commentators have written about the tensions and collaborations between labor unions and civil rights groups promoting race or sex equality, the very similar dynamics of the relationship between unions and disability rights groups have largely escaped comment.
In the past several years, though, the tensions in the labor-disability relationship have become especially acute. As unions (particularly the Service Employees International Union) have pushed for increased wages and benefits for direct-care workers who provide home and community-based services, and state Medicaid cuts have placed pressure on the budgets available to pay those workers, many disability rights activists have worried that labor’s agenda will lead to the (re-)institutionalization of people with disabilities. This tension stood in the background of the litigation in Harris v. Quinn, in which the Supreme Court addressed the collective bargaining system some states had set up for personal-assistance workers. And the dispute between unions and (some) disability rights activists broke out in a particularly sharp and nasty way in response to the Department of Labor’s recent rules expanding Fair Labor Standards Act protections for home care workers. Although some disability rights groups supported the new rules, which had been a major priority of organized labor, particularly vocal and influential activist groups opposed them. These tensions are nothing new. Disability rights activists have long challenged the paternalism of those assigned to “help” or “care” for them, and the unions that represent those workers are thus a natural target for suspicion if not antagonism. And many (though not all) elements of the American labor movement have strongly opposed the deinstitutionalization of people with mental disabilities. The current labor-disability tensions cannot be understood outside of the context of that history.
This essay, which was presented as the Stewart Lecture on Labor and Employment Law at the Indiana University Maurer School of Law in April 2016, attempts to do two things. First, it puts the current labor-disability controversy into that broader context. Second, and perhaps more important, it takes a position on how disability rights advocates should approach both the current controversy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, this essay argues both that those workers have a compelling normative claim to full FLSA protection — a claim that disability rights advocates should recognize — and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to the broader tensions, the essay argues that disability rights advocates go wrong, both normatively and pragmatically, in treating the interests of individuals with disabilities as inevitably superordinate to those of individuals who do the work of providing community-based services and supports. Although this wrong turn is completely understandable in light of the history of paternalist subordination of people with disabilities at the hands of the helping professions, today’s situation calls for an accommodation of the legitimate claims of each side.