ADA Category Archives — The Virginia Business Litigation Blog Published by Virginia and Washington, D.C. Litigation & Appeals Attorney

August 31, 2015

Newly Released EEOC Directive To Assist Federal Employees Alleging Discrimination When Potential Conflict of Interest Exists

As you may know from past posts, the U.S. Equal Employment Opportunity Commission (EEOC) enforces five federal laws that prohibit employment discrimination against applicants for federal employment, current federal employees, or former federal employees: Title VII of the Civil Rights Act of 1964, as amended (prohibiting discrimination on the basis of race, color, religion, sex, or national origin); the Equal Pay Act of 1963 (prohibiting agencies from paying different wages to men and women performing equal work in the same work place); the Age Discrimination in Employment Act of 1967, as amended (prohibiting discrimination against persons age 40 or older); Sections 501 and 505 of the Rehabilitation Act of 1973, as amended (prohibiting discrimination on the basis of disability); and Title II of the Genetic Information Nondiscrimination Act of 2008 (prohibiting discrimination based on genetic information).

But what if the individual discriminating against a federal employee is the head of the agency or division wielding vast influence not only in the employee’s division but the entire agency? What if the alleged discrimination is inflicted by the head of the EEO office? Federal employees may fear that the EEO office is not investigating thoroughly such claims of discrimination and/or is predisposed not to find that any discriminatory conduct occurred.
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September 16, 2013

In Wrongful Termination Case, Court Employs Burden Shifting Framework Where No Direct Evidence of Discrimination Exists

by Lee E. Berlik

A plaintiff employee with no direct evidence of disability discrimination must establish a prima facie case of wrongful termination. If he succeeds, the defendant employer is required to articulate a legitimate, non-discriminatory reason for the termination. The burden then shifts back to plaintiff to show that the reason offered was merely a pretext for discrimination. The United States District Court for the Western District of Virginia recently employed this burden shifting framework in Ruggles v. Virginia Linen Service, Inc. and granted the employer’s motion for summary judgment.

Timothy Ruggles was a route salesman for Virginia Linen Service and New System Linen Service. His duties included bringing extra linens to clients who had run out of linens before their scheduled delivery date. The extra linens rarely weighed more than 25 pounds. Ruggles also acted as a substitute driver for ill or vacationing employees, although he contended that substitute driving or “running a route” was not a primary function of his position. Running a route required him to make new deliveries of linens and pick up bags of soiled linens from customers. Occasionally, the bags of soiled linens weighed up to 100 pounds. When running a route, Ruggles and other employees often separated the heaviest bags of soiled linens into smaller bags to reduce the weight and make the bags easier to lift.

Ruggles suffered a back injury that was not related to his work. As a result, his doctor ultimately placed him on restrictions that prevented him from lifting more than 10 pounds for four weeks. Later, an orthopedic specialist permanently restricted Ruggles from lifting more than 50 pounds and/or continuous lifting of more than 25 pounds. Defendants offered Ruggles a sales position that would not require heavy lifting, but Ruggles rejected the offer. Defendants eventually terminated him based on the permanent restrictions the orthopedic specialist put in place.

June 4, 2013

Recent ADA Guidelines on How to Treat Applicants and Employees with Cancer or Intellectual Disabilities

by Guest Blogger

While most people know that the Americans with Disabilities Act (ADA) protects employees who have obvious visual, hearing, and physical impairments, how the law relates to employees with cancer and intellectual disabilities can sometimes raise questions. The Equal Employment Opportunity Commission (EEOC), the agency that enforces the employment provisions of the ADA and where an employee must initiate a charge of discrimination before filing a lawsuit, endeavors to answer these questions with its recently issued guidelines on how the ADA applies to employees with these conditions.

For employees living with cancer, the new guidelines discuss when an employer may ask an applicant or employee questions about their cancer, what type of reasonable accommodations employees may need, and handling safety concerns about employees with cancer. An employee who has cancer and is currently undergoing treatment or has a history of cancer has a disability within the meaning of the ADA. Misguided assumptions and discrimination abound about an employee’s ability to concentrate and how much leave they will need for treatment and doctor visits. These Guidelines explain in detail who may be told about an employee’s cancer, the various accommodations available from telecommuting to control over the office thermostat, and when an employer may or may not grant the accommodation requested.

The Guidelines characterize “intellectual disabilities” as significant limitations both in intellectual functioning and in adaptive behavior that may affect a person’s daily social and practical skills such as communication. The EEOC lists several accommodations for employees with intellectual disabilities such as demonstrating what a job entails (not just describing it), reallocation of marginal tasks to other employees, repeating instructions, breaking tasks down into manageable chunks, and the use of detailed schedules for task completion. The EEOC guidelines also discuss, in detail, when an supervisor can ask about a person’s intellectual disability and what may be asked.

July 23, 2012

Retaliation Claim Dismissed for Failure to Exhaust Administrative Remedies

by Lee E. Berlik

The exhaustion of remedies doctrine requires parties to initiate and follow administrative procedures before seeking relief from the courts. The rationale behind the doctrine is that administrative agencies have specialized personnel, experience, and expertise to handle matters that arise under their jurisdiction. Additionally, an administrative complaint puts parties on notice of alleged wrongdoing, and administrative proceedings allow parties to resolve their disputes in a more efficient and less formal manner.

To allege discriminatory employment practices in a deferral state like Virginia, prior to filing any lawsuit, an aggrieved employee must exhaust administrative remedies by initiating an EEOC charge. Otherwise, the claim will be forever barred. The United States District Court for the Western District of Virginia recently addressed the exhaustion of remedies requirement in Kerney v. Mountain States Health Alliance.

Keltie Kerney was the Home Health Director at Norton Community Hospital (“NCH”) when she began having medical problems with her eye. She informed NCH that her medical problems would require medical leave and possibly future accommodation in order to continue her employment. NCH granted Kerney medical leave from August 19, 2010 through December 14, 2010 when her physician released her to return to work “with accommodations.” Upon her return to work, the hospital terminated Kerney. Kerney claims that the hospital discriminated against her on the basis of her age and disability and that it retaliated against her for her request for medical accommodations. Kerney brought suit against NCH and its owner, Mountain States Health Alliance (“MSHA”) under the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Americans with Disabilities Act (“ADA”).

May 12, 2012

Burger King Manager Says He Was Fired For Having HIV

by Lee E. Berlik

Many people don’t realize that the Americans with Disabilities Act (ADA) protects not only employees with substantial hearing, visual, or mental impairments, but also those with HIV or AIDS. The ADA prohibits discrimination against “qualified individuals with disabilities.” Any physical or mental impairment that substantially limits one or more major life activities can qualify as a disability, and HIV disease is such an impairment.

Earlier this month in Norfolk, former Burger King manager Christopher Peña filed a discrimination suit against Burger King for allegedly terminating him upon learning he was HIV positive. Burger King says he was fired for poor performance. The complaint seeks compensatory damages for lost past and future wages, benefits, and emotional distress. It also seeks punitive damages, costs and attorney fees, reinstatement, and an injunction precluding further violations of the ADA.

Peña joined Burger King in 2004 and became a district manager, responsible for nine restaurants. When he learned he was HIV positive, he debated whether to tell the company but decided he should do so in case he reacted to his medications and had to miss work. He claims he had no disciplinary actions against him prior to disclosing his HIV status to a supervisor in June 2011. But shortly after the disclosure, one of his restaurants failed an audit, other restaurants within his management experienced service problems, and he dismissed an employee for stealing money. The company terminated his employment in September 2011.

May 7, 2011

ADA Plaintiff Perpetrates Fraud on Court, Sees Claim Stricken

by Lee E. Berlik

In a memorandum opinion dated April 27, 2011, United States District Judge T.S. Ellis, who sits in the Alexandria Division of the Eastern District of Virginia, taught plaintiff Stephanie Holmes that it was not a good idea to change her story multiple times during her deposition. Finding that she had “perpetrated a fraud on the court,” Judge Ellis affirmed the magistrate judge’s recommendation to strike Holmes’s claim for compensatory damages for pain and suffering.

Holmes, who had worked as a stocker at a Wal-mart in Alexandria, Virginia, for four years, filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that Walmart had failed to make reasonable accommodations for her hearing impairment. She alleged that Walmart had refused to provide her with an interpreter and with comprehensive notes of meetings and instructions, all of which she needed to perform her job properly. She sought compensation for pecuniary losses, an injunction, punitive damages, and back pay.

The EEOC filed suit on Holmes’s behalf. During Holmes’s deposition in 2010, Walmart’s attorneys asked her about whether she had received any treatment from a mental health provider for emotional distress caused by her employment at Walmart. First, she said, “I don’t need therapy, and I don’t see doctors.” Then she said she saw a therapist just once in 2007. She later changed her story again and said she saw one doctor three times a week from March 2004 through February 2005. Finally, at the end of her deposition, she acknowledged that she had received therapy for anxiety and depression in a 13-year period from 1994 to 2007 and that some of the treatment related to her work at Walmart.

June 30, 2009

Norfolk Kmart Sued for Disability Discrimination

by Lee E. Berlik

The Equal Employment Opportunity Commission (EEOC) claims a Kmart Super Center in Norfolk, Virginia, fired a store greeter because he used a cane, in violation of the Americans with Disabilities Act (ADA). In a lawsuit filed in the United States District Court for the Eastern District of Virginia, the EEOC alleges that the employee used a cane to walk and stand due to his spinal stenosis, a physical impairment of his back. His back problems did not prevent him from performing his duties as a greeter. Nevertheless, the suit claims, when he was observed using the cane, Kmart terminated his employment.

Prior to terminating the employee, Kmart allegedly refused to allow him to use the cane, even though his condition made it difficult to stand or walk without one, and his job required both. The EEOC filed the lawsuit only after Kmart refused to settle.

The EEOC is seeking most of the remedies permitted under the ADA, including reinstatement of the employee’s job (or placement into a substantially equivalent position), back pay, compensatory damages, and punitive damages for intentional discrimination. The EEOC is also seeking an injunction (as it usually does in the ADA cases it brings) prohibiting discriminatory practices and compelling Kmart to adopt and execute a variety of policies, practices, and training programs to clarify to their employees and the general public that Kmart will takes steps to ensure it does not discriminate against persons with disabilities.

June 13, 2009

Virginia Lottery Must Be Accessible to People with Disabilities

by Lee E. Berlik

Both the Americans with Disabilities Act (ADA) and the Virginians with Disabilities Act (VDA) prohibit stage agencies and public entities from discriminating against people with disabilities, or denying to them the benefits of their services, programs, or activities. On June 4, 2009, Virginia’s highest court held that the Virginia Lottery, a state agency established to generate revenue to be used for public purposes, must comply with these laws and ensure that disabled persons are not excluded from participation in the lottery.

At issue was whether the lottery operation constitutes a “program, service, or activity” within the meaning of the ADA and VDA. A group of disabled plaintiffs, all of whom use wheelchairs, sued the Lottery in Richmond, claiming that several retail outlets lacked accessible parking spaces, ramps, and paths of travel for disabled persons. The Lottery argued that it was exempt from the ADA and VDA because it did not offer a program, service, or activity within the meaning of those statutes. While the Circuit Court agreed with that argument, the Supreme Court reversed, finding that the Virginia Lottery does operate a “program, service, or activity” and therefore must conduct its operations in compliance with the ADA and the VDA.

The tricky part is determining how, exactly, accessibility is to be achieved. The only party responsible for complying with the ADA with respect to a particular challenged government program is the party with control over that program. (See Bacon v. City of Richmond, 475 F.3d 633 (4th Cir. 2007)).

April 20, 2009

Your Rights as a Disabled Employee

by Lee E. Berlik

Qualified individuals with disabilities are entitled to an equal opportunity to benefit from the full range of employment-related opportunities available to others. The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace (as well as in government and other contexts) on the basis of disability. It applies to employers with 15 or more employees and covers recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. The ADA also restricts the questions that can be asked about an applicant’s disability before a job offer is made, and it requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless doing so would result in undue hardship.

To be protected by the ADA, one must qualify as having a “disability” (or as having a close relationship with a disabled person) as that term is defined in the Act. Under the ADA, a disabled person is: (1) one having a physical or mental impairment that substantially limits one or more major life activities, (2) a person who has a history or record of such an impairment, or (3) a person who is perceived by others as having such an impairment. See 42 U.S.C. § 12102(2). The ADA does not specifically list or identify all possible impairments that would be considered disabilities.