Rojgar Job News

You are hearing the appeal of an employee with less than two years’ service dismissed on the grounds of admitted poor conduct. What can possibly go wrong? Certainly not the seeming afterthought on the employee’s part, not mentioned at the dismissal stage, that her conduct might in part be explained by a depressive condition of which you had no knowledge. Besides, some of the conduct cannot be caused by the alleged disability and in the circumstances (the end of probation) that would be enough for you to act upon anyway. As we say, nothing can go wrong. Except Baldeh – v – Churches Housing Association of Dudley and District , that is. Baldeh was dismissed at the end of her probationary period for a list of shortcomings including breaches of confidentiality, an aggressive and dictatorial tone in internal and external communications and breach of professional boundaries in her dealings with service users. In her appeal meeting Baldeh admitted that she could sometime...

All the best-practice recommendations about accommodating employees with disabilities stress the importance of dialogue with them about the limitations their disability may impose and the adjustments which might be made to help overcome them. Unimpeachable advice in principle, but not without risk in practice, as it turns out. Last month’s decision in Ahmed – v- Cardinal Hume Academies concerns an exceptionally unpromising start to an employment relationship, an allegation of disability discrimination arising in the course of a discussion about how to avoid disability discrimination. Ahmed suffered from dyspraxia, causing him significant difficulties with reading, comprehension speed and writing without serious pain for more than a few minutes at a time. Nonetheless, he sought to qualify as a teacher and using technological aids made good progress with this up to the point where he was offered a placement with Cardinal Hume Academies. CHA’s OH doctor provided a repor...

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...

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...

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...

Back in 2017 we posted a piece about the difference between disability and unhappiness at work. In that case, Mr Herry had been off work for over a year but still failed to establish that he was disabled. In large part this was because his absence was felt not to be the result of an actual impairment, but instead of a particularly vigorous emotional reaction to something at work which would clear up as soon as he left. So from that one might conclude that the easiest way of stopping work-related stress becoming a disability is to dismiss the employee early on in his illness. Then when the ET asks later whether the condition was likely to last 12 months, you could say with some confidence no, because you had thoughtfully spared the employee all that unhappiness by dismissing him. Nice try, but a kind reader of this blog has pointed me to the EAT decision in Parnaby-v-Leicester City Council this summer which imposes some significant limitations on that principle. Parnaby was absent with...

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, ...

In my post last week, I considered the extent of an employer’s duty to make reasonable adjustments to accommodate an employee whose difficult workplace attitude is alleged to have its origins in a disability. However, there is another angle to this question which the employer must also bear in mind. Section 15 Equality Act 2010 make it unlawful for an employer to treat an employee unfavourably “ because of something arising in consequence of ” his disability, unless it can show that treatment to be justified. In other words, one step removed from direct less favourable treatment because of the disability itself; instead, such treatment on the basis of something stemming from it. There are untold cases around the required degree of knowledge of the disability and of causation of the “something”, but they pretty much all depend on their own facts (this one is a particularly extreme example [here]). For present purposes, let us assume that the employer accept...

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...

You can’t escape the panic spreading through mass and social media regarding the 2020 Wuhan Novel Coronavirus, a virus that has resulted in fatalities in China and infected thousands worldwide. Symptoms mimic that of influenza (fever, cough), but can include difficulty breathing, pneumonia, kidney failure, and death in severe cases. Despite the panic, there are only a handful of confirmed cases in the U.S., but this has done little to quell paranoia. With fear of the bug’s spread, many employers are bracing themselves the possibility of employee absences, either due to illness or fear of contagion in congested workplaces. Employers and human resources professionals can immunize themselves against some risk by implementing steps in advance. Familiarize yourself with state and local paid sick leave laws. Many U.S. states and municipalities now require that employers provide paid time off to employees to address their own illnesses or that of their family members. If you have...

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. ...

In Woolf v. Strada , decided by the U.S. Court of Appeals for the Second Circuit in February 2020, the court considered whether the plaintiff’s inability to perform his particular job as a result of migraines and stress arising from the circumstances surrounding his job gave rise to a qualifying disability under the Americans with Disabilities Act (“ADA”), as amended. In Woolf , the plaintiff suffered from migraines that he contended were related to stress at work.  The migraines left him temporarily incapacitated and impaired his ability to work and to participate in life activities more generally. As a result, his work performance declined and he received negative performance reviews.  Throughout this time, the plaintiff made multiple requests to transfer to a different position or to be assigned different supervisors, providing a note from his neurologist in support of his requests.  The employer did not grant the plaintiff’s transfer requests o...

As soon as your employee announces that he is suffering from a mental health condition, there is a temptation on the part of both employer and employee to assume that he is thereby necessarily disabled under the Equality Act and so that with immediate effect he is entitled to all the protections available under it. However, even if you do not dispute the fact of his condition, is he right? In some parts yes, but in others (says the EAT in Tennant v Tesco Stores this month), potentially not. In the usual course, an employee will count as disabled when his impairment is “long term”. That means in broad terms that it must either: (a) have lasted 12 months; or (b) be expected to last 12 months. In Tennant , the EAT considered the position of someone whose condition had indeed lasted 12 months, but where there was no evidence that it had been expected to do so. The treatment which Tennant alleged to be discriminatory had taken place during that 12 months, so the question was whe...