Disability Discrimination

December 26, 2015

One Common Disability Leave Mistake To Avoid

The most important advice we have for communicating with your employer during your disability leave is doing it in a way that would make it clear to them why and how long you will not be able to work for. While you, of course, have a certain right to medical privacy and confidentiality, the employer is entitled to know that information which is relevant to your limitations and to your request for disability leave under ADA / FEHA or medical leave.

Many employees, while on leave, make this common disability leave mistake of ignoring the employer’s letters that request additional medical information or clarification of previously provided medical notes. This is not a good idea, and this can often give the employer a legitimate reason to terminate an employee who would otherwise have all the protections that are otherwise available to disabled employees.

For instance, suppose you provide your employer some type of medical notes that states that you are sick and you won’t be able to work for 30 days. Your employer is puzzled and they want to know why exactly you wouldn’t be able to work. While they might not be entitled to know your exact diagnosis, they are entitled to know the limitations that affect your ability to work or prevent you from working. For instance, if you need some type of surgery, the employer is not entitled to know what the surgery is, but they are entitled to know that you, for instance, won’t be able to move or walk for a certain period of time.

October 21, 2014

Don’t Let Your Workers Compensation Claim Hurt Your Wrongful Termination Case

by Arkady Itkin

Many disability discrimination and wrongful termination cases involve a workers compensation claim. One mistake that a wrongful termination claimant should avoid is exaggerating his/her disability when dealing with his workers comp doctors. Stating to the doctor that you are completely unable to work with or without accommodations as a result of your work related injury might increase your workers comp benefits, but it can also “kill” your wrongful termination case, if that case is based on failure to accommodate or failure by your employer to provide reasonable accommodations to you in violation of FEHA and ADA. This is because you can’t claim on one hand that the employer didn’t accommodate you and discriminated against you because of your disability or medical condition, and on the other hand be so incapacitated that no accommodation would be feasible that would allow you to return to work. Remember – an employer doesn’t have to accommodate you if there is no reasonable accommodation available to your condition, given your essential job duties.

You should of course always be truthful about your physical limitations and your ability or inability to perform some or all of your job duties. Your attorney should be able to guide you through the interplay between your workers comp claim and your wrongful termination / disability discrimination case and find the best strategy for both of your cases that would allow you to maximize the benefit from both of your cases without letting your workers comp claim interfere with your ADA / FEHA court claims.

July 16, 2014

A Major Sacramento Healthcare Provider is Sued for Disability Discrimination

by Arkady Itkin

A major health care provider Dialysis Clinic Inc. was sued for disability discrimination this week by EEOC. The lawsuit has been filed in the Eastern District Court in Sacramento.

The plaintiff Francisca Lee had worked at the company’s facility on East Southgate Drive in South Sacramento for 14 years when she was diagnosed with cancer. She took medical leave to have a mastectomy and chemotherapy, according to the allegations in the EEOC complaint. Four months later, according to the complaint, the company notified Lee by mail that she was being terminated for exceeding the time limit dictated by its medical leave policy

At the time of Lee being fired, she had been cleared by her physician to return to work without restrictions in less than two months, the complaint says. Lee, 71, was told she would have to reapply for an open position. However, when she did apply a little more than two months later, she was rejected. Not long after, according to a claim in the complaint, the company hired a newly-licensed nurse. Of course, the employer has denied all allegations like they always do.

May 15, 2014

EEOC Brings Yet Another Discrimination Disability Lawsuit Against Autozone

by Arkady Itkin

Auto parts retailer AutoZone Inc., was accused last Friday of violating federal law for allegedly implementing a nationwide attendance policy that failed to accommodate certain disability-related absences. This the fourth workplace disability discrimination lawsuit the Equal Employment Opportunity Commission has filed against the company in recent years.

In the latest case, the EEOC said that from 2009 until at least 2011, AutoZone assessed employees’ nationwide points for absences, without permitting any general exception for disability-related absences, with 12 points resulting in termination. As a result, the EEOC said in a statement, qualified employees with disabilities with “even modest” numbers of disability-related absences were fired in violation of the Americans with Disabilities Act. These included one Illinois employee with diabetes who had to leave work early occasionally because of insulin reactions, and who was fired because of his attendance points.

EEOC’s lawsuit also alleges that another employee was discharged in retaliation for complaining about the policy and filing a charge with the EEOC.

December 23, 2013

Equal Treatment Can Be Discrimination at Workplace

by Arkady Itkin

Although this sounds counter-intuitive, equal treatment of all employees can be discriminatory and in violation of disability and other laws. The seminal case on this issues is US Airways, Inc. v Barnett (2002), decided by the US Supreme Court. In that case, the high court considered whether leave and other policies equally applied to all employees, regardless of their disabilities and limitations can still be discriminatory. The answer is yes. The Court said that an employer who treats all employees equally might still be in violation of the law, since preferences sometimes prove necessary to achieve the basic equal opportunity goal envisioned by law. The law requires preferences in the form of reasonable accommodations that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy.

The Court further noted that by definition any special “accommodation” requires the employer to treat an employee with a disability differently, i.e. preferentially. Otherwise, neutral office assignment rules would automatically prevent the accommodation of an employee whose disability-imposed limitations require him to work on the ground floor. Neutral “break-from-work” rules would automatically prevent the accommodation of an individual who needs additional breaks from work, perhaps to permit medical visits. Likewise, neutral furniture budget rules would automatically prevent the accommodation of an individual who needs a different kind of chair or desk.

June 16, 2013

The Importance of Medical Note in a Disability Discrimination Case

by Arkady Itkin

Recently, one of our cases was dismissed after nearly two years of litigation in Sacramento Superior Court, because one key piece of evidence was missing. In that case, a State employee was deemed AWOL after not returning to work by the date, noted by her doctor. She requested an additional leave from her supervisor after having been on medical leave for nearly a year already at that time.

The supervisor refused to provide the same despite knowing about the claimant’s long history of injury, pain and treatment. That manager was firm that he was going to follow the instructions of then existing medical note, ordering the the employee return to work with specific restrictions. The employee did not return to work, but instead went to see her doctor who apparently extended her medical leave.

However, the claimant was not able to produce that medical note at the time the motion to dismiss the case was heard and also wasn’t able to prove that she provided the note to any of her manager prior to being deemed AWOL and terminated.

April 19, 2013

FMLA, Workers Comp Leave and PTO (Paid Time Off) Interplay

by Arkady Itkin

One of the common disability law issues that may arise at workplace is when an employee suffers an industrial injury, obtains FMLA leave for that injury and also goes on workers compensation leave, as instructed by his workers comp doctor. That employee may have also accrued paid time off.

Two common questions arise in this kind of situation:

1. Can the employer count FMLA and workers compensation leave concurrently?

September 2, 2012

Disability Discrimination in Public and Government Agencies

by Arkady Itkin

My experience suggest that one of the reason for disability discrimination and failure to comply with disability laws in public / government agencies is the ignorance of disability laws and not understanding the obligations of the employer toward disabled workers among the managers and human resources personnel in these agencies.

Some of the managers that make critical decision of how to reasonably accommodate and employee and what constitutes an effective, reasonable accommodations have very little or no background or training in either human resources or disability laws. Many supervisors lack basic understanding of what qualifies as disability at workplace under ADA or FEHA. Some of the managers in state, county and municipal agencies get very high up in the ranks due to good performance and length of service alone, as usually there is no requirement to get high education in the public sector employment in order to continue to be promoted. While allowing employees from all backgrounds and all walks of life to have opportunities in high management, not requiring additional education or training when it comes to human resources and basic laws that govern employee’s right and duties leads to many employment and wrongful termination lawsuits against these agencies. Most often we hear about lawsuits against Department of Corrections and Department of Health and Human Services.

March 24, 2012

Your Cellphone Records and Proving Disability Discriimination

by Arkady Itkin

One of the common challenges in proving violation of disability rights in a wrongful termination case is showing that the employer knew that the employee had a qualifying condition or suffered an injury shortly before being terminated, and thus his or her termination was discriminatory or retaliatory.

In the absence of e-mails or faxes where the employee puts the employer on notice of his condition and the need for medical leave or accommodations to the medical condition, phone records may be a persuasive evidence in proving that the employee was likely retaliated after suffering an injury and successfully negotiating a settlement.

Suppose you suffer an on the job injury while operating an industrial equipment. You call your boss and/or human resources manager to let them know that you were injured, that you need to leave to seek medical attention, and you might need time off. They agree with you and informally allow you to leave work to take care of your injury. A few days later you are terminated for insubordination, poor performance, or some other abstract reason. When you argue in a legal action in court or in front of EEOC/DFEH that you were terminated because of your injury, your supervisor says that he never heard from you and did not know you suffered an injury before deciding to terminate you or that he didn’t even speak with you after you were injured. This is where your phone records reflecting at least that you made those calls after your injury can be extremely helpful. If you can, get them right away. If it has been a while since the subject day of when these important phone calls took place, subpoena those records from your phone provider or encourage your attorney to do the same.

January 23, 2011

Asthma and Sensitivity to Smoke May Be Protected Medical Conditions at Workplace

by Arkady Itkin

Asthma and sensitivity to tobacco smoke and other pollutants are conditions that have been recognized by courts as a protected disability at workplace, entitling the workers suffering from those conditions to a reasonable accommodation.

In County of Fresno v. Fair Employment & Housing Commission (1991), the employer (the county) argued that hypersensitivity to smoke is either a non-handicapping respiratory disorder, not covered by the California disability laws, or an “environmental limitation” rather than a physical limitation. The court has rejected both arguments, finding that because of the respiratory disorder, exposure to tobacco smoke produced by other employees substantially limited the Plaintiff’s ability to breathe, rendering the Plaintiff “handicapped” and covered by ADA (Americans with Disabilities Act) / FEHA (Fair Employment and Housing Act). In that case, the employer actually attempted to reasonably accommodate the plaintiff, and the following actions were taken: smokers used desktop air filtration machines, employees kept windows open, management separated Plaintiff’s desk from the desks of smokers, Plaintiff was offered an alternative position in another department, where smoking was not permitted. Because all of the above accommodations proved to be either futile or ineffective, the court still found that the employer failed to reasonably accommodate Plaintiff.