Whether a disability is temporary, permanent or inhibits an employee’s ability to perform their job, it is important for employers to note that they cannot remove an employee with a disability from their hired position without first discussing, evaluating and providing alternative solutions. Failing to do so is a violation of the Americans with Disabilities Act (ADA).
The two examples below underscore the importance of equal treatment of all employees.
Example 1: Equal Employment Opportunity Commission v. Minnesota Living Assistance
The EEOC filed a lawsuit charging Baywood Home Care (Minnesota Living Assistance) with violating the ADA claiming they failed to provide employee Laurie Goodnough, who has fibromyalgia and osteoarthritis that greatly limits her ability to walk and bend, with reasonable accommodation and firing her from her position as a home health aide.
The lawsuit alleges that two supervisors witnessed Ms. Goodnough walking with a cane and complained to Baywood Home Care’s owner. Ms. Goodnough was fired. The EEOC maintains that she was fired because of her disability and that Baywood Home Care failed to engage in the interactive process to evaluate and provide her with a reasonable accommodation.
The suit was settled by consent decree and granted $30,000 in monetary relief to Ms. Goodnough. Under this decree Baywood Home Care is required to educate management and employees that are involved in hiring on the ADA, reasonable accommodation, as well as the interactive process. Baywood Home Care must revise their performance evaluation standards so that managers and supervisors are held accountable for neglecting to take action, report, or engage in the interactive process on complaints of disability discrimination or requests for accommodation. Baywood Home Care is also required to report any complaints of disability discrimination to the EEOC during the decree’s three-year term.
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.’
Example 2: EEOC v. Florida Commercial Security Services
Another such disability discrimination case was filed by the EEOC against Florida Commercial Security Services (FCSS). This time the discrimination came from the president of the community association who hired FCSS. Alberto Tarud-Saieh, a licensed, one-armed security guard employed by FCSS was assigned to patrol a community association in a security vehicle. When the president saw him, he called FCSS to complain stating ‘The company is a joke. You sent me a one-armed security guard.’ In order to placate the customer, FCSS removed Mr. Tarud-Saieh from that position, but failed to assign him to another post – ultimately firing him.
A jury determined that FCSS had violated the ADA by “making an employment decision about Mr. Tarud-Saieh based on discriminatory stereotypes from a customer regarding his disability, and that Tarud-Saieh could have performed the essential functions of his security job.”
A fine of nearly $36,000 was imposed on FCSS, as well as an injunction banning future discrimination. FCSS must educate its staff and implement anti-discrimination policies.
The Interactive Process
The interactive process is the collaborative effort between the employer and employee to determine if the employee is able to perform the functions of their job and if a reasonable accommodation of the employee’s disability can be made. Be sure the process is well documented. If a charge is filed against your company, that information can be invaluable.
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).
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