Rojgar Job News

The Connecticut Appellate Court today released an important disability discrimination decision that gives employers some support for employees who struggle with employees who ask for “accommodations” for an indefinite leave for a medical condition. The case ostensibly addresses the request for “indefinite leave” which I’ve previously talked about it in prior posts. But the case boils down to a familiar set of facts for employers. An employee who one day says, “I need to take 30 days off for a medical condition” and leaves the employer to twist without further response. As explained by the court: The plaintiff informed the defendant that she would be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff effectively asked the defendant ‘‘to hold [her] position op...

Late on Tuesday (April 23, 2019) the CHRO released new Legal Enforcement Guidance on “Pregnancy, Childbirth, or Related Conditions at Work”.  Or you might call it a “Bluepaper” instead – as a “one-pager” on the subject called it. That one-pager was prepared by the Worker & Immigrant Rights Advocacy Clinic at Yale Law School’s Jerome N. Frank Legal Services Organization seemingly with the blessing and approval of the CHRO which also posted it to its website late Tuesday. So is it a Bluepaper or Guidance? Well, it’s titled “Guidance” so let’s go with that.  Indeed, the CHRO’s guidance here follows similar guidance released on other laws by the Connecticut Department of Labor such as this one on Paid Sick Leave. What are the highlights of the guidance?  In a lot of ways, the guidance mimics (as it should) the current law on the subject. It also mirrors the language already present in the p...

The laws regarding the protections owed to pregnant employees got far broader a few years back. In fact, the statutory provision prohibiting discrimination against pregnant employees has  eleven key items. Rather than tackle them in separate posts, we’ll “super-size” this post to cover it all. The main law is set forth at Conn. Gen. Stat. Sec. 46a-60(b)(7), though it is to be read in conjunction with the state’s broad anti-discrimination laws. The key prohibitions state that it shall be a “discriminatory employment practice” for an employer (or the employer’s agent): (A) To terminate a woman’s employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy; (C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pur...

Recently, I saw a skiing dog. Oh, and it was wearing sunglasses too. To be fair (to the dog), it was actually tucked neatly in a backpack while the owner was in line for the chairlift. I didn’t actually see the dog skiing, but you get the picture.  (Which I did capture!) I thought I had seen everything but this was something new. And yet, it perfectly captured for me, a growing trend I’ve been hearing clients asking me about — “Everyone seems to be asking to bring their dogs everywhere. When do I have to allow a dog (or other emotional support animal) in my workplace?” First, to be clear, I’m not talking about service animals — the type that do work or provide some benefit to those who are disabled.  A trained service dog may, for example, be able to spot seizures for those with epilepsy. In such an instance, the ADA requires that employers provide a “reasonable accommodation”; in most instances, the service animal can (and...

As we previously reported here, the issue of whether obesity is a legally-protected impairment is complex, and jurisdictions differ on the extent to which they consider obesity to be a disability under the Americans with Disabilities Act (“ADA”).  On June 12, 2019, the United States Court of Appeals for the Seventh Circuit joined the Second, Sixth, and Eighth Circuits in holding that without evidence that an underlying physiological disorder caused the individual’s extreme obesity, a plaintiff’s weight does not qualify as an impairment under the ADA or the Equal Employment Opportunity Commission’s (“EEOC”) interpretive guidance. In Richardson v. Chicago Transit Authority , the plaintiff, a bus driver weighing nearly 600 pounds, claimed that his employer took adverse action against him because of his morbid obesity in violation of the ADA.  However, his employer – the Chicago Transit Authority, Chicago’s mass transit operato...

I gave a talk last week on constructive knowledge of disability, i.e. the point where the employer didn’t actually know its employee was disabled, but is nonetheless held liable because on the facts it ought to have done. The question arises in relation to sections 20 and 15 Equality Act, the obligation to make reasonable adjustments and unjustified less favourable treatment on the grounds of something arising out of a disability. In both cases the employer is on the hook if it either knew or ought to have known that the employee was disabled. In fact, it is not quite so simple – the Equality and Human Rights Commission Code states that where it doesn’t know, an employer must do “all it can reasonably be expected to do” to find out, including proactively enquiring of the employee where there are signs that something is amiss. The EHRC Code gives the example of an employee in a call centre who sits at her desk crying. I think we have all been there, but sho...

Many employers are familiar with Title I of the Americans with Disabilities Act (ADA), which sets forth employers’ obligations to disabled applicants and employees, but the ADA also imposes obligations on businesses that are places of public accommodation – and nearly all are – with respect to their patrons. A recent Ninth Circuit appellate decision, Tauscher v. Phoenix Board of Realtors, Inc ., No. 17-17218 (9th Cir. July 25, 2019), offers guidance on the extensiveness of public accommodations’ obligations to accommodate their disabled customers. The lawsuit was brought by a profoundly hearing-impaired licensed real estate salesperson, Mark Tauscher. Mr. Tauscher is unable to hear sounds that are less than 90 decibels, roughly as loud as a lawnmower. He cannot engage in conversational settings or lip-read. His only means of communication with others is through American Sign Language (ASL). Despite these challenges, Mr. Tauscher had successfully navigated the bus...

As we previously discussed here and here, courts are split regarding the extent to which obesity qualifies as a disability under the Americans with Disabilities Act (“ADA”). The Second, Sixth, Seventh and Eighth Circuit Courts of Appeal have held that obesity must be accompanied by an underlying physiological disorder for it to constitute a disability, whereas the First Circuit and some district courts have come to the opposite conclusion, particularly when the plaintiff presents expert testimony supporting the contention that obesity is a physical impairment, regardless of an underlying physiological condition. The Ninth Circuit wrestled with this question in 2018 in a case brought under the Washington Law Against Discrimination (“WLAD”). Because the case involved a question of state law, the Ninth Circuit certified a question to the Washington Supreme Court to resolve whether Washington courts would conclude that obesity, standing alone, constitutes a disabilit...

In the employment world, some legislative ideas just don’t work. Some have promise initially but don’t survive their first encounter with the real world – take a look at 2001’s Dignity at Work Bill, for example, to all outward appearances a brilliant spoof of a real piece of legislation but clearly written by someone with no actual experience of the workplace whatsoever. Other ideas make it into law but are by common and unspoken consent then broadly ignored, like employee shareholder status and (for those of a certain vintage) the Statutory Grievance and Disciplinary Procedures, both introduced to great fanfare and repealed in embarrassment and confusion very shortly afterwards. On the other hand, some ideas are so clearly and irretrievably doomed from the very moment of their conception that they do not deserve to see the light of day at all. And so a big hand, please, for the TUC’s proposal to introduce legislation to outlaw workplace discrimination on t...

On October 29, 2019, railway operator Burlington Northern Santa Fe Railway Company (“BNSF”) prevailed before the United States Court of Appeals for the Seventh Circuit – which covers Illinois, Indiana, and Wisconsin – in a case in which the company argued that its refusal to hire an obese candidate due to an unacceptably high risk that the applicant would develop certain obesity-related medical conditions incompatible with the position sought did not violate the Americans with Disabilities Act (“ADA”).  Ronald Shell applied for a job with BNSF as a machine operator position.  Per its standard practice when the applied-for position is safety-sensitive, as was the heavy equipment operator position sought by Shell, BNSF required him to undergo a medical examination.  During the medical examination, the examiner determined that Shell’s body mass index (“BMI”) was 47.  BNSF had a practice of refusing to hire indiv...

Employers already are (or should be) familiar with their obligations not to discriminate against and to reasonably accommodate employees and applicants with disabilities under the Americans with Disabilities Act (“ADA”), which requirements are addressed in Title I of the ADA.  But the ADA also imposes additional non-employment obligations on governments and municipalities (Title II) and on private places of public accommodation (Title III).  Nearly all private employers are also “private places of public accommodation,” as that term includes a wide range of entities such as restaurants, bars, hotels, theaters, stadiums, grocery stores, hospitals, doctors’ offices and pharmacies, banks, accountants’ and lawyers’ offices, retail stores, museums, libraries, zoos, amusement parks, private schools, and day care centers.  Not only must those facilities be physically accessible to patrons with disabilities, but for years, courts have deb...

On October 22, 2019, a Tennessee federal district court dismissed a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) under the Americans with Disabilities Act (“ADA”) against West Meade Place LLP (“WMP”), a skilled nursing facility, after finding on summary judgment that the EEOC failed to establish that former WMP employee Carma Kean was disabled, as that term is defined under the ADA. In EEOC v. West Meade Place LLP , the EEOC, acting on behalf of Ms. Kean, alleged that she had anxiety and that during “flare-ups” of this condition, she was unable to work.  The EEOC alleged that WMP violated the ADA because it failed to accommodate Ms. Kean’s condition by providing her with requested time off work, and also engaged in disability discrimination when it terminated Ms. Kean’s employment.   In order to establish a prima facie case of a failure to accommodate or ot...

So said German lithographer Herm Albright in a rare moment’s cynicism, but of course if you really want to get on your colleagues’ nerves, a hostile or negative attitude is far more to be commended. So here is a question arising from a matter on which we were recently instructed. Client’s employee has a persistently difficult attitude – rude, micro-(and indeed macro-)aggressive, sullen, lots of tutting and sighing, a distinct snippiness to his tone and all this still in his probationary period. Off to a flier, clearly.  When the employer’s concerns were raised with him, back came quite a lot more lip plus the assertion that it was all the product of some still unspecified mental health condition. That may or may not be so in this particular case, but it begs a difficult question – to what extent is an employer obliged to tolerate sub-standard “attitude” in the workplace if it has or may have its origin in a disability? The issue is pa...

In Darby v. Childvine , a recent decision from the United States District Court for the Southern District of Ohio, the Court considered whether a genetic mutation can constitute a “disability” as that term is defined under the federal Americans with Disabilities Act (“ADA”). In that case, the employer terminated the plaintiff/then-employee Sherryl Darby two weeks after she underwent surgery for a double mastectomy.  Darby sued Childvine, claiming that she had breast cancer, was therefore disabled under the ADA, and that its termination of her employment violated the ADA.  Childvine moved to dismiss her complaint, arguing that a diagnosis of breast cancer does not automatically mean that the employee is substantially limited in a major life activity – which is, in part, how the ADA defines a disability.  In response, Darby amended her complaint, alleging that her cancer diagnosis meant that she was substantially limited in normal cell growth, ...

Many individuals with disabilities use service animals to help them fully engage in everyday life.  Animals, particularly dogs, can be trained to perform a wide range of tasks to help people with disabilities, and the number of tasks these specially trained animals can perform continues to grow. As a result, more applicants and employees are requesting the use of service animals as a reasonable workplace accommodation for a variety of different disabilities.  In addition, the growing popularity of emotional support animals adds another layer of complexity to the issue of animals in the workplace for employers.  Because the law in this area is somewhat murky, employers must use caution when addressing service animal/emotional support animal accommodation requests and need to be prepared to address the potential challenges that such accommodations can entail. Animals as Accommodations under the ADA Title I of the Americans with Disabilities Act (ADA), which specifically add...

As we previously reported here, the U.S. Court of Appeals for the Ninth Circuit and the Washington Supreme Court have been wrestling with whether obesity qualifies as a disability under the Washington Law Against Discrimination (“WLAD”). The dispute involves an applicant for a position with a railway company who sued in 2010, alleging that the company unlawfully refused to hire him in violation of the WLAD because of his obesity.  Six years later, a federal district court granted summary judgment in favor of the railway company, holding that because the applicant could not prove that his obesity was caused by a physiological condition or disorder or that the employer perceived his obesity as stemming from such a source, his obesity discrimination claim under state law could not proceed.  The applicant appealed, and the Ninth Circuit Court of Appeals  concluded that whether obesity unrelated to any physiological condition or disease is a disability was an unres...

As discussed in our prior posts on obesity and disability law, there is continuing disagreement in the courts concerning whether obesity alone constitutes a disability, or whether obesity must result from a physical disease or condition in order to be a disability.  On February 27, 2020, the U.S. Court of Appeals for the Fifth Circuit became the latest federal circuit court to consider whether obesity qualifies as a disability under the Americans with Disabilities Act (“ADA”) in a case called Lumar v. Monsanto Company. Under the ADA, “disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual.”  Further, the ADA prohibits employers from discriminating against “qualified individuals” with disabilities, and defines such individuals as applicants or employees who, with or without reasonable accommodation, can perform the essential functions of the job. ...