New York Employment Lawyer Blog

Walmart was recently hit with a lawsuit by the EEOC for violating the Americans with Disabilities Act ("ADA") by failing to accommodate an employee with a disability. The charges also included retaliation against the mega retailer for firing the employee because of his disability and for exercising his civil rights. The EEOC is seeking monetary damages on behalf of the employee discriminated against, training on the ADA and steps to stop Walmart from future discrimination.

The EEOC's investigation showed that the Walmart employee, David Gallo, began working at its Placerville, California location in June 2003. The company was aware that Gallo had a heart condition called atrial fibrillation which causes shortness of breath and difficulty walking. Gallo received good performance evaluations which resulted in him being promoted from overnight stocker to manager of the store's tire lube express bay.
Although Gallo had a handicap parking placard and the company knew of his disability, in March 2008, the new store manager stopped Gallo from parking in the handicap parking spaces or any other spots near the front of the store. In September 2008, Gallo filed a charge with the EEOC for Walmart's failure to accommodate his disability. He was then fired eight months later for an error that an employee working under him made. However, the employee and the person who had reviewed his work were not fired.

The ADA prohibits employers with 15 or more employees from discriminating against qualified individuals with disabilities with respect to hiring, firing, promotions, compensation, as well as any other terms or conditions of employment. An individual with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, has a record of the impairment, or is regarded as having the impairment.

An employer is legally required to make a reasonable accommodation if it does not impose an "undue hardship" on the employer's business. For example, it is a reasonable accommodation to allow a diabetic employee to take scheduled breaks to check his or her sugar level. A reasonable accommodation is an "undue hardship" if it requires significant expense or difficulty given the employer's size, financial resources, and business operations.

Clearly, Walmart should have accommodated Gallo by allowing him to park in the handicap parking spot or at the least, allowed him to park close to the front of the store. Considering that Walmart knew of Gallo's disability and could have easily accommodated him, Walmart's actions were completely unreasonable. To top it off, Walmart then retaliated against Gallo for filing an EEOC complaint and fired him. Given Walmart's size, financial resources, and past instances of disability discrimination, it is a shame that Walmart engaged in this behavior.

Now matter how big or small your company, make sure your managers and supervisors are trained on the ADA. Our attorneys have conducted hundreds of training sessions on the ADA and Title VII to help businesses save thousands of dollars by avoiding potential litigation. Call our ADA Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you safeguard your company against potential ADA claims.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

The EEOC recently filed a lawsuit against the nation's largest turkey producer, Butterball, LLC, alleging that it violated the Americans with Disabilities Act ("ADA") by subjecting an employee to a hostile work environment because she was HIV-positive and then terminated her employment because of her disability. The EEOC is seeking monetary damages as well as injunctive relief on behalf of the fired employee, Tracy Montgomery. Our attorneys have helped many employees resolve their ADA claims with their employers. If you have been discriminated against or suffered from a hostile work environment because of a disability under the ADA, our attorneys can help you figure out your best options.

The EEOC's charged that Montgomery was subjected to harassment during her employment at Butterball in October and November of 2009. Three of her co-workers told her everyday that they did not want to touch her or work with her because of her being HIV-positive. The three employees also used derogatory names to describe her HIV status when talking about her. Although Montgomery complained about the harassment to her supervisor almost every day, the harassment continued. The EEOC charges also allege that Butterball's plant manager knew about the harassment against Montgomery. Although he had a meeting with Montgomery and one of her co-workers to discuss an altercation provoked by the co-worker, he fired Montgomery the next day.

The ADA prohibits private employers as well as state and local governments with 15 or more employers from discriminating against qualified individuals with disabilities with respect to hiring, firing, promotions, compensation, job training, and terms and conditions of employment. An individual with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having an impairment. The ADA also provides that if an individual has HIV or AIDS, he or she is considered to be disabled under the Act and is therefore protected under the ADA.

Lynette A. Barnes, the regional attorney for the The EEOC's Charlotte District, stated that "Harassment that targets a person with an ADA-covered disability, is just as much a violation of federal law as harassment based on a person's race, color, gender, age, religion, or national origin." She added that "HIV/AIDS has always been a sensitive health issue, and an employer has no excuse for failing to intervene when an employee complains of vicious harassment based on her HIV status."

President Obama has also directed federal agencies to implement the National HIV/AIDS Strategy, which includes addressing and preventing employment discrimination against people with HIV or AIDS.

The EEOC's complaint here clearly shows that the government will not hesitate to go after any employer who discriminates or subjects an employee to a hostile work environment because of his or her HIV or AIDS status. If an employee with a disability or a perceived disability complains about discrimination or harassment from a co-worker, investigate the complaint in a quick and efficient manner. Our attorneys have helped many businesses investigate and evaluate claims of discrimination under the ADA as well Title VII. Call our ADA Attorneys at Villanueva & Sanchala at (800) 893-9645 if any of your employees have charged your company with violating the ADA.

Continue reading "HIV/AIDS Discrimination and Workplace Harassment under the ADA" »

New Jersey recently passed a bill that makes it illegal for employers to specify in their job listings that unemployed persons will not be considered for hiring. New Jersey's legislative ban on blatant and open discrimination against the unemployed, whether in print or online, is the first of its kind in the US but probably not the last. If you violate the bill, you face a penalty of $1,000 for the first offense and $5,000 for subsequent offenses.

The New Jersey Statute, N.J.S.A. 34:8B-1 makes it illegal for an employer or an employer's agent to "publish, in print or on the Internet" any job postings that provide that the job qualifications include current employment, that unemployed applicants will not be considered, or that only employed job applicants will considered for the position. The New Jersey law becomes effective June 1, 2011. The statute does not require an employer to consider hiring an unemployed job applicant.

New Jersey Representative Celeste Riley, who sponsored the bill, said she became aware of employers discriminating against the unemployed when she saw an online job ad that stated that jobless candidates should not apply. Riley's own district has one of the highest rates of unemployment in New Jersey. Riley has stated that although you "can't control people's behaviors," New Jersey can at least send a message to employers that this practice is unacceptable.

In February of this year, the EEOC held hearings to investigate and determine whether this type of discrimination against unemployed persons seeking jobs is unlawful under federal discrimination laws. Helen Norton, Associate Professor at the University of Colorado School of Law, has found that employers as well as staffing agencies have advertised jobs ranging from electric engineers to restaurant and grocery managers to mortgage underwriters, all seeking only currently employed individuals. Fatima Gross Graves, Vice President of Education and Employment of the National Women's Law Center, has stated that discrimination against the jobless "may well act as a counterweight" against the governments' effort in fighting unemployment. Gross Graves also testified that this type of discrimination disproportionately affects women, especially older women in non-traditional occupations.

The EEOC hearing also found that this type of discrimination can have a disproportionate effect on racial and ethnic minorities. Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, testified that African-Americans, Hispanics and Native Americans have higher unemployment rates. The rate is also higher for college educated Asian workers. Assistant Secretary of Labor for Policy, Dr. William Spriggs, testified that according to employment statistics, African Americans and Hispanics are overrepresented among the unemployed. He also testified that older applicants and persons with disabilities are also more likely to be affected if employers place job status restrictions in hiring.

Many people today are unemployed, not because of poor work performance, but because the economy suffered, restructuring, layoffs, or because they took time off to take care of kids. Many people who have been unemployed for a long period of time simply have not found another job, not because they didn't try, but because they just can't find another job. It is an outrage that blatantly discriminatory job ads against the unemployed are being seen across the country. This is being referred to as "you have to have a job to get a job." About 4.4 million people, or 40% of the country's unemployed, have been without a job for over a year. For every job opening, there are on average 5 job applicants. Unfortunately, people who have been unemployed for a long period of time have a much more difficult time finding another job.

If this vicious cycle of discriminating against the jobless continues to grow, it could potentially undermine all the recovery efforts the government has made in the past few years. This type of discrimination can also have a disparate impact on women, minorities, and persons with disabilities who have a disproportionately higher rate of unemployment. For example, where such a restrictive job ad rules out a high number of women from even applying for the job, it is a violation of of both Title VII and the Civil Rights Act of 1964. Basically, it is a way for employers to circumvent all the civil rights progress that many in this county have fought long and hard to attain.

Georgia Congressmen Hank Johnson recently introduced the Fair Employment Act of 2011 which is a bill still in committee. If passed, it would make it illegal for employers to discriminate or lower compensation because of a person's employment status.

If you or someone you care about has suffered from any type of discrimination at the workplace, including race, gender, pregnancy, age, sexual orientation, disability, national origin, or religion, call our experienced Employment Discrimination Attorneys at Villanueva & Sanchala at (800) 893-9645 to discuss your possible case.

Disclaimer: 

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

Source:

EEOC Meeting of February 16, 2011

FAQ: I am concerned that several of my employees are often under the influence of drugs or alcohol. At least one of whom I confronted told me that he was on a prescription pain killer prescribed by his physician, who told him it was okay to continue working. I am worried about workplace accidents and the potential liability I could incur. Should I implement a drug and alcohol policy?

You pose an excellent question that affects every employer in this country, no matter how large or small the company. On the one hand, employers don't want to invade their employees' privacy or make them think that they don't trust them. On the other hand, drug and alcohol abuse at the workplace is a major safety concern. Every year, thousands of employees are injured from accidents caused by drug and alcohol abuse. Employers face enormous, potential liabilities caused by such accidents involving employees who test positive for drugs or alcohol. In fact, many insurance companies will not pay out benefits if an employee involved in a work related accident ends up testing positive for drugs or alcohol. Furthermore, the U.S. government estimates that companies lose $82 billion in productivity every year because of substance abuse.

Just last year, the EEOC brought a lawsuit against a Michigan automotive parts company, Dura Automotive Systems ("Dura"), who was drug testing all of its production employees for illegal drugs as well as legally prescribed medications. For the employees who tested positive for prescription drugs, Dura suspended their employment until they stopped their prescription medication and terminated the employees who continued to take their medication. One of Dura's employees, Mrs. Bates who was an assembly line worker, was fired because she was taking hydrocodone, a narcotic for her back pain prescribed by her physician. Dura thought it was trying to keep its workplace safe. However, Dura's blanket policy of all or nothing has attracted nationwide attention as well as scrutiny by the EEOC. The EEOC charged Dura with violating the Americans with Disabilities Act for conducting drug tests which ended up disclosing the identities of employees who tested positive.

There are dozens of reasons for employers to test employees for drug and alcohol abuse at the workplace. Drugs and alcohol at the workplace are a widespread, serious issue in today's workplace. A great number of employees are coming to work on either illegal drugs or prescription drugs and posing a safety hazard in many industries. This is both a health hazard to employees as well a huge liability to employers. Quest Diagnostics recently reported that prescription opiates went up 18% from 2008 to 2009 and up 40% from 2005 to 2009. The same data also showed that workers tested for drugs after accidents were 4 times more likely to test positive for opiates than those tested before being hired. Mark A. de Bernardo, executive director of the Institute of a Drug-Free Workplace, has stated "Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue."

Continue reading "New York New Jersey FAQ: Employee Drug Testing at the Workplace" »

Q: I am a pharmaceutical drug representative who recently underwent chemotherapy. After returning to work, my employer took away many of my important clients and refused to accommodate my disability caused by my health condition. What can I do?

This is a great question this month because October is National Disability Employment Awareness Month which celebrates and takes note of the contributions made by workers with disabilities. Our experienced Disability Discrimination Attorneys at Villanueva and Sanchala are great believers in the idea that individuals who can work, be productive and contribute to our economy should be accommodated. At any point in time, the healthiest individual can be affected by a life altering disability.

Our Disability Discrimination Attorneys have been following a lawsuit that the EEOC recently filed against one the nations largest garment manufacturers, American Apparel, Inc. American Apparel employs over 5,000 people in the U.S., another 5,000 globally and operates over 285 retail stores. The EEOC has alleged that American Apparel fired a disabled garment worker while he was on medical leave for cancer treatment. The worker properly submitted documentation requesting medical leave for chemotherapy, which American Apparel granted. However, after the worker returned to work, the company told him they had no position available for him and terminated his employment.

The EEOC has charged American Apparel with not even examining any options for accommodating the worker and denying his request for reasonable accommodation. The EEOC has alleged that American Apparel illegally fired him because of his disability, in direct violation of the Americans with Disabilities Act ("ADA")

The EEOC has stated that "Workers with disabilities cannot be cast off at the first sign of a disability related issue." On behalf of the worker, the EEOC is seeking back pay, compensatory damages, punitive damages and injunctive relief to prevent such future discrimination.

Continue reading "Disability Discrimination at the Workplace FAQ and your Legal Rights" »