"This & That" Tuesday: Discrimination, ADAAA, Temporary Disablity, Sexual Harassment, Retaliation

October 21, 2014

 

 

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming Events

November 8, Pasadena City College, Hiring Talent for Improved Performance, Click here for more information

 

November 15, Mt. Sac (Walnut), How to Create and Conduct a Formal Discipline Discussion, Click here for more information

 

November 15, Mt. Sac (Walnut), How to Build a Salary Structure & Merit Pay System, Click here for more information

 

Jury Awards $400K in Discrimination Suit

A Long Beach man was awarded nearly $400,000 in a discrimination suit after a jury found a Long Beach doctor and the man’s employer discriminated against him for being gay. The jury found Jared Piety, owner of Spring Family Medical Group, liable for his unlawful behavior towards Edward Martinez, entering a judgment of $390,278 against Piety.

 

When Martinez was hired as a medical assistant in August 2010, Piety was unaware Martinez was gay, according to Todd. At some point shortly after he was hired, Piety became aware of Martinez’s sexual orientation. “During Mr. Martinez’s orientation, Dr. Piety asked if he was gay,” said Todd, adding that in itself is a violation of the law. In the case heard in Los Angeles Superior Court, Todd stated Martinez was constantly called gay slurs and was regularly mocked in front of patients. 

 

During the trial, there was “undisputed evidence” that Martinez had complained numerous times about Piety’s conduct, according to the plaintiff. Instead of stopping the harassment and discrimination, Todd said Piety retaliated against Martinez by terminating his employment about six months after being hired. 

 

Employer Lessons from ADAAA "Temporary Injury" Decision

The Fourth Circuit decision is significant regardless of where you operate, because, according to the decision, it is the first appellate-level decision interpreting "disability" under the ADAAA. And because of the Court's thorough and careful analysis of the ADAAA and the EEOC's regulations, it is likely that other appellate courts will cite and follow it in the future.

 

In this case, the plaintiff, Carl Summers, was hired as an analyst at the Altarum Institute, a government contractor in Alexandria, Virginia. A few months after he was hired, he fell and hit both knees on a commuter train platform. His legs were seriously injured. According to his lawsuit, his doctors said he would not be able to walk normally for about 7 months and absent treatment would not have been able to walk for more than a year. He had to have "surgery, bed rest, pain medication, and physical therapy."

 

Mr. Summers claims that he asked Altarum's human resources department about continuing to work from home while he received short-term disability benefits. HR initially told him that he should just collect his benefits and concentrate on his recovery. He then suggested "'a plan in which he would take short-term disability for a few weeks, then start working remotely part-time, and then increase his hours gradually until he was full-time again.'" He alleges that the company never responded to this proposal, not even to say "no" or suggest an alternative. He was terminated shortly afterward "'in order to place another analyst in his role.'" 

 

The Fourth Circuit panel found that the District Court incorrectly dismissed the wrongful termination claim in light of the amended ADA. So Mr. Summers' lawsuit will be allowed to proceed. 

 

What can we learn from the Summers decision regarding the ADAAA?

• The standard for "disability" is now different — and much more lenient — than it was before the ADAAA. 
• The ADAAA provides that "mitigating measures" — including "bed rest, pain medication, and physical therapy" — are not to be considered in determining whether someone has a disability. The employee's condition must be viewed in its "unmitigated" state. In other words, in assessing whether Mr. Summers had a "disability," the court had to look at the effect of his injuries as if he had not received any treatment or therapy. 
• Although the "regarded as" provisions of the ADAAA talk about a six-month minimum duration, the same does not apply to an "actual" disability. For an actual disability, only "transitory and minor" conditions are unprotected. A "sufficiently severe" injury can be a disability even if its duration is less than six months.
• Even if Mr. Summers could have continued to work using a wheelchair, that does not affect the analysis of whether he was "disabled." (His ability to work would be very relevant to a reasonable accommodation analysis, but not to whether he had a disability in the first place.)
• The fact that Mr. Summers's impairment was caused by an injury (as opposed to an illness) was irrelevant to his status as a person with a disability within the meaning of the ADA.

 

The lesson from this decision is that, post-ADAAA, employers must err on the side of treating the individual as being "disabled" and having the protection of the ADA. Employers should make sure that they have effective protocols in place for reasonable accommodation, medical leaves of absence, and termination of employees who are unable to perform their job duties for arguably medical reasons.  

 

UnityPoint Health Trinity Pays $65,000 to Resolve Sexual Harassment and Retaliation Lawsuits

UnityPoint Health Trinity (formerly known as Trinity Medical Center) will pay $65,000 to a group of current and former employees to resolve two related sexual harassment cases brought by the EEOC.  

 

The EEOC had charged that Trinity subjected a class of female employees to sexual harassment.  The agency also alleged that the hospital system fired one of the alleged victims when she complained about the harassment to management.  

 

The Central District of Illinois entered the decree on Jan. 28 ending the suits, which provides $65,000 in monetary relief to the victims.  In addition, the decree includes an injunction against harassment and retaliation and imposes record keeping and reporting responsibilities on the medical center for the decree's term.  

 

Factoids

• 60.5% of fulltime employees have health coverage
• 33.6% of employees working between 30 and 39 hours have coverage
• 12.8% of employees working less than 30 hours have coverage
• 38% of employees receive no workplace support at all for retirement preparation while most experts agree that 75% of employees need professional guidance.
• Nearly 20% of companies surveyed said their company faced a regulatory or investigative matter in 2013, up from 9% in 2012. 

 

Quotes

"Education is the most powerful weapon which you can use to change the world.”

~Nelson Mandela~