Retaliation: Woman fired for Discrimination Complaint

Things blow up after company punished female employee for complaining about unlawful discrimination and hostile work environment.

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A male site superintendent at the Brunswick Nuclear Power Plant in South Carolina harassed a female planner who was hired to address a power outage. She notified company management, and according to her complaint, the site superintendent created a hostile work environment by being “aggressive, intimidating, sarcastic, and condescending” with her because she was a woman.

To the company’s credit, a vice president completed a relatively prompt investigation into the female worker’s complaint. To the company’s discredit, the Vice President fired her two days later.

The EEOC announced a settlement with the company on April 27, 2015. The company must pay $65,000 to the victim who was fired in retaliation for filing a complaint of workplace discrimination.

Retaliation against workers who lodge claims of workplace discrimination is illegal under Title VII of the Civil Rights Act of 1964.

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Why do Workplaces Attack? Learn more about the Psychology of Workplace Retaliation. LEARN MORE

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Case Outcomes

Monetary fine: $65,000

Employer must:

  • Provide annual training to all supervisors, managers, and employees, to prevent future retaliation.
  • Provide names of employees who complained about discrimination and who were thereafter subjected to adverse employment actions.
  • Post a notice regarding workers’ rights protected by the EEOC.
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Lessons Learned from EEOC v. Newport News Industrial Corporation

  • When a worker has lodged a discrimination claim, an employer must be very cautious about any action that might be perceived as an adverse workplace action (such as termination or demotion) – even after concluding an investigation.
  • Document, investigate, and resolve every claim of discrimination.
  • Consider hiring third-party investigators to probe discrimination claims.
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Employee Fired for Postpartum Depression

An employee who provided customer assistance to healthcare patients and pharmacists soon found herself in need of an advocate for her own disability case.

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A Reimbursement Case Advocate, Meron Debru, informed her employer (The Lash Group Inc.) of her pregnancy and requested short-term disability leave for the birth of her child. Her doctor was concerned that Debru was suffering from postpartum depression and did not release her to return to work, and for nearly five months after her short-term disability ended, she was unable to work because of the postpartum depression, which is considered a disability related to childbirth and is protected by the Americans with Disability Act (ADA).

The company filled Debru’s position about three months into her leave and sent her a letter of termination, stating that she had exhausted her FMLA leave and because she had taken more than six months’ leave, which was not true. Debru protested to the human resources manager, and the company sent a new letter stating that she had exhausted her allowable FMLA leave, but that she could apply for other open positions with the company.

She was released to return to work by her physician and was forced to compete for vacant positions. After applying for three positions for which she was qualified, the company still had not hired her, and they once again formally terminated her.

The EEOC took on Debru’s case (EEOC v. The Lash Group) and won. They proved that the company had refused to provide a reasonable accommodation to an employee with postpartum depression and instead fired her because of her disability.

(To be clear, the ADA does not classify pregnancy as a disability under the ADA, but any pregnancy-related disabilities, such as postpartum depression, are considered disabilities for which employers must provide reasonable accommodation).

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Lessons Learned from EEOC v. The Lash Group

  • Employers must provide reasonable accommodation to women who experience pregnancy-related disabilities.
  • Reasonable accommodation can include the extension of unpaid leave or transferring the employee to a vacant position for which she is qualified.
  • Forcing an employee to try to find a new position within the company on her own does not meet an employer’s obligation to provide a reasonable accommodation.
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Case Outcomes from EEOC v. The Lash Group

Monetary fine: $75,000

Employer must:

  • Provide reasonable accommodation going forward.
  • Revise its family and medical leave and short-term disability benefits policies and procedures to address reasonable accommodations.
  • Notify employees that they may be entitled to a reasonable accommodation (including unpaid leave) and how to request such an accommodation.
  • Provide training on the ADA and reasonable accommodations to human resources personnel, leave coordinators and managers.
  • Report to the EEOC on how it handles future reasonable accommodation requests.
  • Post a notice regarding the resolution of this lawsuit.

What is Postpartum Depression?

The symptoms of postpartum depression are more intense than the “baby blues” that many new mothers experience. Approximately 15% of all new mothers experience a more intense sort of “baby blues” known as postpartum depression whose symptoms may include:

  • Loss of appetite
  • Insomnia
  • Intense irritability and anger
  • Overwhelming fatigue
  • Loss of interest in sex
  • Lack of joy in life
  • Feelings of shame, guilt or inadequacy
  • Severe mood swings
  • Difficulty bonding with the baby
  • Withdrawal from family and friends
  • Thoughts of harming self or baby

Untreated, postpartum depression may last for many months or longer.

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Contractor Liable for Racial Harassment of Subcontractor Employees

African-American workers assaulted and repeatedly harassed at construction site win suit against primary contractor.

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Construction sites are not known for being bastions of cultural sensitivity. But they are not exempt from U.S. labor law prohibiting discrimination, retaliation, and hostile work environments.

The ‘N-word’ and Toilet Water

In EEOC v. Skanska USA Building, three African-American workers endured a hostile work environment daily. The three men operated buck hoists, which are temporary elevators that run up and down the outside of buildings under construction. White coworkers on the site called them monkeys, black motherf—ers and n—ers. Graffiti at the worksite – including within the workers’ portable toilets – included images of white people shooting black people and statements such as “n—ers have to leave”.

One white worker through liquid from the chemical toilet into the face of one of the buck-hoist operators, causing his eyes to swell. Another buck-hoist operator showed up for his regular shift using crutches for a broken leg, but a Skanska call him a “n—er” and told him to get off the jobsite.

Racial Harassment Complaints Ignored

Early on, the African-American workers reported the racial harassment on a near daily basis to the owner of the minority-owned subcontracting firm in charge of the buck hoist (C-1, Inc.). That owner directed the workers to complain directly to the primary contracting company, Skanska USA Building, Inc.

Although the buck-hoist operators were employed by the subcontractor, the primary contractor had the power to remove operators, and their daily responsibilities (including work schedules and time sheets) were directed by the primary contract – not the subcontractor. Eventually, Skanska replaced all the subcontractor’s buck-hoist operators with Skanska employees.

Primary Contractor or Subcontractor: Who’s the Boss?

The court determined that the primary contractor was liable for racial harassment and discrimination even though the victims of the harassment weren’t their direct employees. The court found that the primary contractor and the subcontractor were joint employers because they shared or co-determined matters governing essential terms and conditions of employment. As proof of this finding, the court pointed to the joint ability to:

  • Hire, fire or discipline employees.
  • Affect their compensation and benefits.
  • Direct and supervise their performance.

The Bitter End: Settlement and Outcomes

Skanska will pay $95,000 to settle the racial harassment and retaliation lawsuit with the Equal Employment Opportunity Commission (EEOC). In addition to the monetary relief, Skanska must:

  • Cease subjecting employees to racial harassment or retaliating against any employee who lodges a discrimination complaint.
  • Provide in-person training on race discrimination and retaliation.
  • Maintain records of any complaints of racial harassment.
  • Provide annual reports to the EEOC.

The bitter irony here is that construction contracts are often awarded based on contractors’ commitment to workforce diversity. In this case, the project included several minority-owned or disadvantaged businesses that helped the primary contractor win the project to begin with, but then their employees faced discrimination, retaliation, and even assault as their reward.

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Reasonable Accommodation Offered to Breastfeeding Mother, Court Says

A female employee in need of a place to lactate met with resistance and strict company policy.

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Angela Ames vs Nationwide Mutual Insurance

Angela Ames, a former employee of Nationwide Mutual Insurance, was hired as a loss-mitigation specialist in October 2008. Ames gave birth to her second child in May 2010.

Before returning to work, Ames spoke with a company case manager and asked where she could express breast milk. She was informed she could use a designated lactation room, one of which was accessible on every floor.

When she returned to work and needed to use a lactation room, she was met with resistance. The company nurse informed Ames of Nationwide’s lactation policy, which gave badge access to the lactation rooms once an employee completed paperwork that had a three-day processing period. This policy was available to all employees on the company intranet, yet no one–not even the disability case manager–mentioned this policy to Ames.

When Ames mentioned that she needed a room immediately, the nurse asked the security desk to give Ames access ‘as soon as possible,’ then suggested she use a Wellness Room typically used by sick employees, but stated there wasn’t a functioning lock on the door and that she may expose her milk to illness. The room was occupied, so Ames was instructed to come back later.

While waiting for the wellness room, she met with her supervisor and was informed that none of her work had been done while she was on leave, and that she would be given only two weeks to catch up on eight weeks’ worth of work–requiring many hours of overtime–or be disciplined. Ames approached her department head for assistance. Noticing that Ames was upset, the supervisor handed Ames a piece of paper and a pen stating, “I think its best that you just go home and be with your babies” then dictated her resignation letter.

Ames filed suit against Nationwide on the basis of sex- and pregnancy-discrimination in violation of Title VII of the Civil Rights Act of 1964.

Courts Decided Employee ‘Jumped To Conclusions’

A lower court dismissed Ames’ case deciding that she could have sought other internal complaint procedures about her discriminatory treatment before writing her resignation letter and did not. They also found that the comment ‘go home and be with your babies’ was gender neutral because both genders can be parents.

On appeal, the Supreme Court upheld the lower courts judgment saying that she did not meet the ‘burden of proof’ needed to proceed with a claim of sex- or pregnancy-discrimination. The court found Nationwide made several attempts to accommodate Ames by suggesting temporary solutions. Even though these solutions may not have been immediately available or ideal, Ames resigned before Nationwide could thoroughly address her requests for accommodation. Additionally, the court cites that Ames should not have assumed the worst by thinking the interim solutions would not work and her only option was to resign.

Reasonable Accommodation Tips for Lactating Employees

Know your rights under the law. Ensure you are aware of any company policies around maternity leave and lactation accommodations.

Title VII of the Civil Rights Act of 1964

Title VII is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. This amendment states that women “affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.”

Under the PDA:

“If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.”

Fair Labor Standards Act (FLSA) – Section 7

This amendment to Section 7 of the FLSA, requires employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

What is Reasonable Accommodation?

Reasonable accommodation as defined by the U.S. Department of Justice is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”

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EEOC Fines Company for not Accommodating Religious Belief

Mims Distributing Company, Inc. has been ordered to pay $50,000 in order to resolve a religious discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC).

Christopher Alston, a practicing Rastafarian, applied for a job as a delivery driver with Mims. Alston was told that he could have the job if he cut his hair. Alston informed Mims that as a Rastafarian he could not cut his hair. Ultimately Alston did not get the job and the EEOC alleges it was because he would not agree to their request.

Disregarding a person’s deeply held religious belief is a violation of Title VII of the Civil Rights Act of 1964. Title VII requires employers to reasonably accommodate an employee’s religious beliefs as long as it would not pose an undue hardship to the company. The EEOC attempted to reach settlement through its conciliation process first, but when that failed they filed suit.

Mims has agreed to a two-year consent decree in order to resolve the issue. The consent decree requires Mims to create an official religious accommodation policy, to conduct annual training programs on the requirements of Title VII and its ban against religious discrimination, as well as post a copy of its anti-discrimination policy in its facility.

What is a Rastafarian?

Rastafarianism began in 1930s Jamaica. Marcus Garvey, a Jamaican who led a “Back to Africa” movement, predicted there would be a black messiah in Africa. When Ras Tafari, a prince, became Emperor of Ethiopia in 1930 (as Emperor he was called Halie Selassie) the people believed he was the black messiah Marcus Garvey prophesied about. Rastafarians believe that they are one of the twelve tribes of ancient Israel and that God took human form first as Christ the messiah then as Ras Tafari, the black messiah.

Where Do Dreadlocks Come into Play?

People who follow the Rastafarian religion wear dreadlocks because it is a part of the Nazarite Vow. They believe a man’s strength comes from the length of his hair. There is Biblical justification for the style (Leviticus 21:5 “They shall not make baldness upon their head, neither shall they shave off the corner of their beard nor make any cuttings in their flesh”) and it is the way some ancient African priests and Israelites wore their hair.

What is a Consent Decree?

A consent decree is defined as ‘an agreement or settlement to resolve a dispute between two parties without admission of guilt.’

What is Undue Hardship?

An undue hardship is an action that places significant difficulty or expense on the employer.

Reasonable Accommodation

Reasonable accommodation as defined by the U.S. Department of Justice is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”


The Interactive Process and Reasonable Accommodation

After an employer receives a request for reasonable accommodation from an employee, both parties need to participate in the interactive process to discover what type of accommodation, if any, the employer needs to provide. The Equal Employment Opportunity Commission (EEOC) may cite employers who skip the interactive process for failing to provide reasonable accommodation, resulting in a discrimination suit.

Medical Disability Request for Reasonable Accommodation

Employed as a hairdresser, Debra Kauffman pushed nursing home residents in wheelchairs from their rooms to the beauty shop as part of her normal job duties (Kauffman v. Peterson Health Care). After Kauffman underwent surgery, her doctor advised her to avoid pushing more than 20 pounds. Because the residents weighed much more than the doctor’s suggested work restriction, Kauffman informed her supervisor of the work restrictions and asked if someone else could wheel the residents to the beauty shop for her.

Kauffman’s employer, Peterson Health Care, claimed they would need to hire somebody to transport residents to and from the beauty shop for Kauffman and that would constitute an undue hardship for the business.

Her supervisor stated, “We just don’t allow people to work with restrictions, and you have a restriction on here…[A]s long as you’ve got the restriction we can’t employ you.”

Kauffman resigned and filed a claim under the Americans with Disabilities Act (ADA).

The Seventh Circuit Court of Appeals noted that staff members provided assistance to another hairdresser by wheeling residents to the beauty shop after Kauffman’s resignation – with no evidence that wheelchair assistance created an undue hardship for the employer or reduced the quality of care to other residents.

The Court found that Petersen Health Care could not ignore Kauffman’s initial request for accommodation, stating that the employer is required to engage in an interactive process to determine the type of accommodation that would be appropriate.

The case will proceed to a jury trial.

What is the Interactive Process for Reasonable Accommodation Requests?

The interactive process is the collaborative effort between the employer and employee to determine if the employee is able to perform required job functions and if the employer can make a reasonable accommodation for the employee’s disability.

If your company uses the interactive process to find reasonable accommodation for employees, document the process to demonstrate your good-faith effort to accommodate an employee’s disability.

What is Reasonable Accommodation?

Reasonable accommodation as defined by the U.S. Department of Justice is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”

What is the ADA?

The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), the Federal Communications Commission (FCC), and the Department of Justice (DOJ).

Of the roughly 97,000 discrimination charges that the EEOC receives every year, nearly 26 percent are related to claims of disability discrimination.

For more information on the ADA or reasonable accommodation, please check out our other blogs here and here.


Tattoos in the Workplace Go to Court

When some people think of coffee shop employees, they think of hipster types with multicolored hair, piercings and tattoos.

However, if you have visible tattoos, the coffee shop may not be the best place for you to be employed. A policy at a national coffee chain that says visible tattoos are not allowed has always been around, but it’s rarely and not consistently enforced.

Kayla, a tattooed barista from Rochester Hills, Mich., has been employed with the company for several years. Recently she was given an ultimatum: get rid of the tattoo or find a new job.

“What I was told by my manager and my district manager was that you have 30 days to begin a removal process for the tattoo or you must resign from your job.”

Kayla maintains that a tiny heart tattoo on her hand, between her thumb and forefinger, was never discussed during or after her interview. She doesn’t even recall any policy being mentioned. Yet now she has 30 days to start the removal process or lose her job. The heart tattoo is the size of a penny and once Kayla was informed of the policy, she started using makeup to cover it up.

However, that doesn’t seem to have had much of an effect on management. The company has only said that “Our tattoo policy states that [employees] cannot have visible tattoos. This is part of our dress code policy and is discussed with our candidates during the interview process.”

Discrimination Violation

In a similar situation, Benjamin Amos had tattoos when he was hired by the coffee chain. According to Amos, no one mentioned them during the seven years he was employed and working his way up to shift manager. Amos knew about and followed the corporate dress policy and kept his tattoos covered while working.

In February 2008, his store manager told him that the regional and district managers didn’t like his tattoos and asked him to resign. Amos refused. A few days later he was fired.

Amos filed a discrimination lawsuit citing violation of Title VII of the Civil Rights Act, claiming that female employees also have tattoos, but are still employed with the company.

Turning Over a New Leaf

In a recent turn of events, the company has said that it is reviewing its corporate dress code policy – including its policy against visible tattoos. After a petition to put an end to the tattoo policy gathered around 23,000 signatures, the coffee chain sent an internal email to its employees stating that they are now reviewing their dress code.

Many companies may want to consider the internal culture they want to foster. If they are looking to recruit talented creative-types, perhaps allowing a flash of tattoo would open up the candidate pool and make employees feel that they work at a pretty hip place.

 


Find more employment and labor law news on our blog.

 

Company Wellness Program Wins First Round

A U.S. District Judge in Minneapolis denied The Equal Employment Opportunity Commission’s (EEOC) request for an injunction against Honeywell, Inc. over their health screening policy that requires medical testing for employees and covered spouses by saying she “did not believe that Honeywell’s program would pose ‘irreparable harm’ to participants.”

Honeywell’s Wellness Program

Honeywell’s wellness program screens workers for blood pressure, cholesterol, blood-sugar levels, waist circumference and nicotine. Employees who fail to complete the testing are subject to monetary fines and lost contributions to health plans of up to $4,000.

Federal law bans employers from obtaining the personal health information of individual employees, but employers can use combined data to design programs to target specific health problems that can increase employer and employee health care costs.

The EEOC contends that the penalties make the testing involuntary and therefore violate the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

According to Honeywell, the policy promotes employee wellbeing and reduces healthcare premiums for healthy employees.

“We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The Decision

The District Judge stated, “What is better public policy and who is likely to succeed are not measures this court is prepared to decide…There are a number of fascinating issues for debate at a later time.”

The EEOC will continue to examine the charges the employees have filed against Honeywell.


Disclosing Bipolar Disorder Key to Discrimination Claims

Workers with bipolar disorders can be as productive and successful as any other worker. However, employers and their workers with bipolar disorder should be aware that disclosure of a disability allows an employer to provide reasonable accommodation under the requirements of the Americans with Disabilities Act (ADA). The two situations below – one where the employee disclosed a bipolar disorder and one in which the employee did not disclose – underscore the importance of disclosing a disability.

Example 1: When Playing the Bipolar Card Failed Because of Lack of Disclosure

Ryan Foley was a financial advisor at Morgan Stanley in Florida (Ryan Foley v. Morgan Stanley L13-11413). Foley, who suffered from bipolar disorder, believed the company was spying on him, so he swapped his work computer’s central processing unit and hard drive with those of a coworker’s computer.

When the company realized the work computer was gone, they reviewed security tapes and saw Foley leaving with the equipment. Foley was questioned about the computer’s whereabouts, but he maintained that he didn’t know where it was. Once he “remembered” where he took the computer, he returned it to Morgan Stanley and was fired that same day.

Foley claimed that he was in the midst of a ‘psychotic episode’ brought on by his bipolar disorder and maintained that he was fired due to this disability. A judge ruled that Foley wasn’t entitled to protection under the ADA because he never disclosed his bipolar disorder to Morgan Stanley. That lack of disclosure was the difference between a disabled employee requiring accommodation under the ADA and an employee who simply violated Morgan Stanley’s policies on protecting crucial company data – policies he knew about and signed off on in his employee handbook.

The ruling cited case law and the EEOC’s own resources, such as The Americans with Disabilities Act: A Primer for Small Business, which states:

“[An employer does] not have to tolerate violence, threats of violence, theft, or destruction of property, even if the employee claims that a disability caused the misconduct.”

The judge therefore ruled that Foley’s termination was justified.

Example 2: Disclosing Bipolar Disorder Sets Stage for Discrimination Case

Sean Reilly, who also suffered from bipolar disorder, was hired as an assistant manager at The Cash Store in Washington (Equal Employment Opportunity Commission v. Cottonwood Financial Ltd., case number 2:09-cv-05073). He disclosed his bipolar condition and later was promoted to Store Manager only a few months after being hired.

Like Ryan Foley, Sean Reilly experienced a manic episode causing extreme paranoia. Reilly asked for time off from work as his psychiatrist adjusted Reilly’s prescribed medications. His request was denied, and he continued to work. But he dropped the “eff bomb” on some paperwork, and that caused his manager to write him up for obscenity as part of an employee performance improvement plan. Higher-level managers weighed in, however, and instructed Reilly’s supervisor to terminate his employment.

U.S. District Judge Edward F. Shea ruled that Cottonwood violated the ADA when it wrongfully terminated Reilly and that the company failed to make reasonable accommodation for Reilly’s bipolar disorder. The Cash Store must also train their managers and human resource staff about anti-discrimination and anti-retaliation laws.

“The court sent an important message today that employers can’t substitute fiction for facts when making employment decisions about disabled workers. Employers acting on outdated myths and fears about disabilities need to know that the EEOC will not shy away from taking ADA cases to trial to bring them into the 21st century.”

  • William Tamayo, EEOC’s regional attorney in San Francisco

When Does an Employee Need to Disclose a Disability?

There is no right time to disclose a disability – every situation is different. Employees only need to disclose a disability if they need reasonable, work-related accommodation. The U.S. Department of Labor (DOL) suggests that employees make the decision to discuss their disability when it works for them – whether that is during the interview process, after a job has been offered, or not at all. Disclosure of a disability is protected by the Equal Employment Opportunity Commission (EEOC).

What is Bipolar Disorder?

The National Institute of Mental Health (NIMH) defines Bipolar Disorder (or manic-depressive illness) as

“a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks. Symptoms of bipolar disorder are severe. They are different from the normal ups and downs that everyone goes through from time to time. Bipolar disorder symptoms can result in damaged relationships, poor job or school performance, and even suicide. But bipolar disorder can be treated, and people with this illness can lead full and productive lives.”

What is the ADA?

The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), the Federal Communications Commission (FCC), and the Department of Justice (DOJ).