Do You Know? The ADA and Reverse Discrimination

Earlier this week, the EEOC published Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers . In this guide, the EEOC asks the following question: May a private employer give preference in hiring to a veteran with a disability over other applicants? According to the agency...

Reassignment as Reasonable Accommodation: Mandatory or Not?

Earlier this month, I wrote about the ADA and hiring preferences , pointing out that the disability discrimination laws do not prevent an employer from giving a hiring preference to a disabled job applicant by creating a cause for action in favor of a non-disabled applicant or employee. What happens...

Distinguishing State & Federal Disability-Accommodation Claims

Let's say you operate a business in NJ. Your disabled employee comes to you requesting an accommodation for his disability. Does the mere failure to provide that accommodation trigger a claim under the New Jersey Law Against Discrimination (NJLAD)? What about under the Americans with Disabilities...

If Your Job Makes You Want to Kill Yourself, You May (or May Not) Be an ADA "Direct Threat"

If your job makes you want to kill yourself, are you a "direct threat" to your own safety? In what has to be one of the weirdest ADA cases I've seen , a woman (let's call her "Gladys") was hired as a temp for a tech company in Seattle (let's call it "Initech"...

Can an Employer Insist on Regular Attendance Without Violating the ADA? Maybe.

Woody Allen once said, "80 percent of success is showing up." So true, so true! The U.S. Court of Appeals for the Ninth Circuit* came out recently with a great decision on when "showing up" -- also known as "attendance" -- is an essential function of the job, and...

Fact or Fiction: The ADA requires creating a new job for a disabled employee

That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post." Under the Americans with Disabilities Act , an employer is required to provide a...

Court Holds That Requiring an Employee to Undergo Psyhological Counseling May Violate ADA

On August 22, 2012, the U.S. Court of Appeals for the Sixth Circuit in Kroll v. White Lake Ambulance Authority , ___ F.3d ___, Case No. 10-2348, held that requiring an employee to undergo psychological counseling may violate the Americans with Disabilities Act. The ADA states: "A covered entity...

Say It Ain’t So: Court Holds an Employer Does Not Have to Accommodate a Pregnant Employee

Last year, I railed against the Pregnant Workers Fairness Act , a bill that, if passed, would require employers to make a reasonable accommodation for an employee's pregnancy, childbirth, and related medical conditions. I argued that the law does not need alteration because Title VII, through...

“Poor Performance” Caused by a Disability Is Not a Good Reason to Deny an Accommodation

The Americans with Disabilities Act ("ADA") requires employers to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C.A. § 12112(b)(5)(A). To determine an appropriate accommodation employers...

Court Finds that Random Alcohol Tests Don't Always Violate the ADA

Whoa. A federal judge in Pennsylvania held this week that U.S. Steel had the right under the Americans with Disabilities Act to conduct random alcohol tests on probationary employees at a coke plant , granting summary judgment to the company in a class action that had been filed by the Equal...

Sixth Circuit District Court Concludes Telecommuting Is Not a Reasonable Accommodation under the ADA

by Lindsay M. Bouffard Marissa Mayer, Yahoo's recently appointed CEO, has come under fire for her decision to end Yahoo's telecommuting program. This drastic measure has Human Resources professionals wondering whether a blanket ban on telecommuting could have legal ramifications. Under...

The Long and Short of Height Discrimination under the ADA

A couple of week ago I wrote about why the ADA likely protects against obesity as a disability (thank you Wall Street Journal Law Blog for the linkage). If the ADA is starting to protect physical characteristics such as weight, what about height? McElmurry v. Arizona Dept. of Agriculture (D. Ariz...

Yes, the Mandatory ADA Interactive Process Means Employers Have to Actually Discuss Potential Accommodations with Employee

Two lawsuits filed in the past 11 days by the EEOC serve as a reminder that the mandatory “interactive process” under the Americans with Disability Act requires the employer to at least discuss whether there is an appropriate reasonable accommodation. There is not, however, any requirement...

Does the ADA Mandate Transfer Preferences for Disabled Employees?

Last Friday, I had the pleasure of speaking at the National Employment Lawyers Association - New Jersey Annual Conference. I must admit that I was a bit leery. While it sounded legitimate enough -- they asked me to speak on a panel addressing accommodation issues under the Americans with Disabilities...

Court Reasons That Unreasonably Withdrawing a Reasonable Accommodation Is Reason for Employee to Win ADA Suit

Let's say that you have an employee whom the Americans with Disabilities Act would consider disabled and to whom you have afforded a reasonable accommodation for a long time. Maybe it's a few years of light duty to accommodate your employee's bad back. Maybe it's keeping your employee...

A Post About David Crosby, Alcohol, and the ADA

On Monday, it was public urination . Yesterday, we had indecent proposals . And today, the blogging gods, in which I hold a sincerely-held belief, serve me up this federal court opinion about an alcoholic named David Crosby -- not that David Crosby, but still -- who sued his former employer for...

All That for a Bag of Chips: Walgreens Going to Trial in Disability Discrimination Case

The Equal Employment Opportunity Commission is going to get a jury trial against Walgreens in a disability discrimination case that turns on (allegedly) pilfered potato chips [ an enhanced version of this opinion is available to lexis.com subscribers ]. The case, which I wrote about way back in 2011...

An ADA Reasonable Accommodation Just Has to Be Reasonable -- Not the Employee's First Choice

This is my son's first year playing t-ball. The rules, in case you're not familiar with them, are simple: • Everybody hits • Everybody (eventually) rounds the bases • Everybody scores Some games, my son wants to lead off. Some games, he wants to hit last. Ultimately...

Just How Badly Did a Federal Appellate Court Trash Extended Leave as a Reasonable Accommodation?

I'm feeling rather charitable this evening as I punch out this post. Maybe it's the proud feeling of crossing off my bucket list taking my four-year-old son to a Sunday early-bird at the biggest dive bar in South Jersey. (*Bonus points if you can guess the bar). Well, I'm not sure if "proud"...

What Does the ADA Say About Employee Medical Information and Social Media?

The ADA protects, as confidential, employee medical information obtained by an employer. Last year, I asked the following questions about the impact of social media on this confidentiality obligation: What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information...

Requesting an Accommodation Means More Than Saying, "I'm Disabled."

My cold, black employment-law heart is numb to just about anything. I remember this one time, early in my career, when I had to depose a teenage female plaintiff and ask her, with her mother present in the room, whether it offended her that her alleged male sexual harasser wanted to have a threesome...

Cop Loses Big ADA Verdict on a Finding of No Disability

When is a disability not a disability? When an employer fires a difficult employee based on his inability to get along with his co-workers, his ADHD diagnosis notwithstanding, at least according to the 9th Circuit in Weaving v. City of Hillsboro (8/15/14) [ an annotated version of this statute is available...

What Does an ADA Interactive Process Not Look Like?

Upon attempting to return from a medical leave of absence, an employee requests the following accommodations: an ergonomic chair, adjusted lighting in her office, and a part-time schedule for the next eight days. Instead of providing the accommodations, or even discussing their availability, the employer...

Sixth Circuit Vacates ADA Telecommuting Decision

by Jami K. Suver In April 2014, the Sixth Circuit, in EEOC v. Ford Motor Co. , decided that telecommuting may be a reasonable accommodation under the ADA, even if the employer’s business judgment dictates otherwise [an enhanced version of this opinion is available to lexis.com subscribers] ...

HR Cheatsheet: When an Employee Texts You From an Ebola Quarantine Tent

Five minutes ago, after taking the obligatory selfies and between games of Candy Crush, one of your employees texted (because, calling in, as if!) from an Ebola quarantine tent to alert you that she will be out of work for 21 days, while under observation for Ebola. As an employer, what are your obligations...