ADA: Disability Harassment In The Workplace

By Bryan A. Chapman, Esquire

Employers have an affirmative duty to keep the workplace free of disability related harassment. Under the Americans with Disabilities Act (ADA), employers have an affirmative duty to keep the workplace free of disability related harassment. Fox v. General Motors Corporation, 247 F.3d 169 (4th Cir. 2001) (A fact finder could conclude from this evidence that the harassment Fox experienced was frequent, severe, physically harmful, and interfered with his ability to perform his job. In other words, Fox presented evidence of a workplace environment that a reasonable person could easily find hostile.)

  • If a supervisor engages in disability related harassment that results in a hostile work environment, to escape liability, an employer must demonstrate that: 1) it took reasonable steps to prevent and to quickly stop harassing behavior, and 2) the employee unreasonably failed to take advantage of the employer’s efforts to prevent or stop the harassing conduct or to avoid harm.
  • If a supervisor engages in disability related harassment that results in an adverse employment action (demotion, denial of promotion, suspension, termination, etc.), the employer has no affirmative defense.
  • If a co-worker engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.
  • If a non-employee (e.g. customer) engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.

In order to prevail on a disability harassment claim, an employee will have to prove that they:

  1. are disabled or regarded as being disabled;
  2. were subjected to unwelcome harassment;
  3. the harassment was because of their disability;
  4. the harassment affected a term, condition or privilege of employment; and
  5. the employer knew, or should have known, of the harassment and failed to take prompt remedial action.

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“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

By Bryan A. Chapman, Esquire

“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

Employers are advised to document the job performance of their employees. The documentation of job performance is particularly important when an employer is accusing an employee of poor job performance.  Write-ups and negative job performance evaluations can justify adverse actions, such as, denial of promotion, demotion, or termination.

However, unjustified write-ups and negative job performance evaluations may be evidence of discrimination and retaliation.  A careful examination of the personnel file portrays an employee who goes from being Dr. Jekyll to Mr. Hyde: a good employee suddenly becomes a bad employee.  This can raise suspicion and expose an employer to liability.

“Papering” occurs when an employer deliberately packs an employee’s personnel file with unjustified write-ups and negative job performance evaluations in order to justify an adverse action.  For instance, an employer can “paper” an employee’s personnel file by the following methods:

  • An employer may hold the employee to a higher standard than “similarly situated employees”.
  • An employer may scrutinize an employee.
  • An employer may singled out the employee for criticism or disciplinary action.
  • An employer may create a hostile work environment that interferes with the employee’s ability to perform their job.
  • An employer may solicit criticism of the employee from their co-workers and supervisors.
  • An employer may incite the employee’s co-workers and supervisors against them.
  • An employer may deliberately give the employee false write-ups and negative job performance evaluations.

Employers can use “papering” to cover-up discrimination and retaliation. Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”); Etefia v. East Baltimore Cmty. Corp., 2 F.Supp. 751 (D. Md. 1998) (the court determined that the issue of whether documentation of the employee’s job difficulties was part of a plan to terminate him based on discrimination precluded summary judgment.)

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Teleworking is a win-win for workers and employers.

By Bryan A. Chapman, Esquire

Teleworking is a growing trend. Technology is making it possible. COVID-19 is a major catalyst. And, Big Tech is leading the way.

In response to COVID-19, in early March 2020, major tech firms, such as, Twitter, Facebook, Microsoft, Amazon and Google, were the first to allow their West Coast workers to work from home. Other employers, both private and public, followed the example of the major tech firms. Teleworking may have slowed the spread of COVID-19 in California’s Bay Area.

Despite pressure to reopen the economy, major tech firms have embraced teleworking for the time being. Social distancing and the health of their employees are major concern.

Mark Zuckerberg said half of Facebook’s 45,000 workers could be teleworking in the next 5 to 10 years. Twitter will allow its workers to permanently work from home. The tech industry’s acceptance of teleworking is likely to have a ripple effect in other industries.

Working from home will particularly benefit workers who have disabilities that could be exacerbated by COVID-19 exposure at the workplace. Older workers with underlying health conditions, such as, hypertension, diabetes, heart disease, etc., are especially vulnerable to COVID-19. For this group, a COVID-19 infection can be fatal.

Under the Americans with Disability Act (ADA), disabled workers can request a reasonable accommodation and employers may be obligated to provide a reasonable accommodation, provided it does not cause an undue hardship. Teleworking is the ideal reasonable accommodation for many disabled workers.

Economically, employers who adopt teleworking could reduce their office related expenses. Meanwhile, workers who telecommute could eliminate the hassle and expense of traveling to work on a daily basis.

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COVID-19: Employment Discrimination

By Bryan A. Chapman, Esquire

In the spring of 2020, COVID-19 caused massive disruption in the United States. Within a few months, millions of workers became unemployed due to COVID-19 related layoffs. According to the U.S. Labor Department figures, in April 2020, the number of unemployment workers exceeded those of the Great Depression, and Hispanics and African Americans workers were especially impacted. COVID-19 related layoffs disproportionately affected older and disabled workers.

According to AARP, when the overall U.S. unemployment rate spiked from 4.4% in March to 14.7% in April, the unemployment rate for women 55 and older rose even more: from 3.3% to 15.5%. The unemployment rate for men 55+ also soared, though a little bit less, from 3.4% to 12.1%.

Some employers see COVID-19 related layoffs as an opportunity to eliminate older workers. To these employers, older workers represent higher salaries and higher expenses due to insurance costs and paid time off due to illness. Some employers may have a similar attitude about disabled workers.

According to a May 2020 Bureau of Labor Statistics (BLS) Jobs Report, the number of working-age people with disabilities who were employed decreased by 950,000 between March and April (from 4,772,000 to 3,827,000), a 20 percent reduction.

Nonetheless, federal workplace anti-discrimination laws still apply. A worker can not be discrimination against and/or harassed based on their race, sex, national origin, religion, age, or disability.

The U.S. Equal Employment Opportunity Commission (EEOC) specifically warned employers about discriminatory layoffs. According to the EEOC, an employer should “review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws”.

COVID-19 layoff can facilitate sexual harassment. Supervisors can use the threat of a COVID-19 related layoff to force subordinates to submit to unwanted sexual advances.

The earliest cases of COVID-19 occurred in China. As a result, Asian and Asian American workers have become targets for workplace discrimination/harassment.

Discrimination

Employers can deliberately use COVID-19 as a pretext to discriminate against and/or harass workers based on their race, sex, national origin, religion, age, or disability. Here are examples of illegal workplace discrimination:

1. you are laid off, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

2. you are denied a promotion or increase in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

3. you are demotion or given a reduction in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;

4. you are given an undesirable assignment or shift, while workers of a different race, sex, national origin, religion, age, or without a disability are not; and,

5. you are being verbally or physically harassed, while workers of a different race, sex, national origin, religion, age, or without a disability are not.

Retaliation

Federal workplace anti-discrimination laws also prohibit retaliation. Retaliation occurs when a worker is mistreated because they complained about discrimination. Here are examples of retaliation:

  1. undesirable transfers

2. unwarranted disciplinary action

3. harassment

4. refusal of deserved promotion or pay increase

5. demotion or pay reduction

6. termination of employment

Retaliation occurs when an employer takes an adverse action against a worker that is designed to stop a worker from complaining about discrimination/harassment. The adverse action should occur shortly after the worker complains.

Consult an attorney

If you are a victim of discrimination or retaliation, consult an experienced civil rights attorney.

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COVID-19: The ADA and Workers with Mental Disabilities.

By Bryan A. Chapman, Esquire

America is reopening as states and cities are lifting stay at home orders. Most people are eager to get back to work, but there is stress and anxiety over increased COVID-19 exposure. COVID-19 is causing a global mental health crisis.

Some workers suffer from a mental disability that will be exacerbated by returning to work during the COVID-19 pandemic. Under the Americans with Disability Act (ADA), workers with a mental disability may qualify for a reasonable accommodation.

The ADA applies to non-federal government workers who have a qualifying mental disability. Under the ADA, workers with a mental disability have the right to request a reasonable accommodation from their employer. The employer is legally obligated to provide a reasonable accommodation provided doing so does not cause an undue hardship for the employer. For instance, a worker whose mental disability is exacerbated by COVID-19 exposure at work might request telework as a reasonable accommodation. If telework is not an option, the employer may provide other reasonable accommodations, such as:

  1. temporary job restructuring of marginal job duties
  2. temporary transfers to a different position
  3. modifying a work schedule or shift assignments
  4. temporary changes to workload
  5. longer time to complete tasks
  6. flexible hours, later start time, more flexibility concerning attendance
  7. personal leave

Under the ADA, mental illness and disorders, such as, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder are mental disabilities that could qualify for a reasonable accommodation.

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COVID-19: Workers have legal protection from workplaces that can cause serious imminent harm.

By Bryan A. Chapman, Esquire

Workers should not have to risk their health in order to earn a living. There are federal laws, as well as state and local laws, that protect workers from workplaces that can cause serious imminent harm. State and local laws vary, but some state and local laws offer workers more protection than federal laws. Due to the coronavirus pandemic, many states and cities have expanded their protection laws. For example, Michigan prohibits employers from firing workers who stay home for certain reasons related to the coronavirus pandemic.

Americans with Disabilities Act (ADA)

Workers with a disability (hypertension, diabetes, heart disease, etc,) that puts them at higher risk from COVID-19 can request a reasonable accommodation that reduces their exposure to COVID-19 under the Americans with Disabilities Act (ADA). Under the ADA, employers are required to provide a reasonable accommodation, as long as, doing so does not cause an undue hardship. The worker and their employer must engage in an interactive process. A worker who believes their employer has violated their ADA rights can file a discrimination claim with the Equal Employment Opportunity Commission (EEOC). Workers are protected from retaliation, such as, being fired or demoted.

The Occupational Safety and Health Administration (OSHA)

The Occupational Safety and Health Act of 1970 ensures that private sector workers have safe and healthy working conditions. Any worker can refuse to work if their workplace can cause serious imminent harm. A worker can complain to their employer about safety issues and even refuse to work. The Occupational Safety and Health Administration’s General Duty Clause, requires employers to guarantee their employees a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” If a worker believes that their workplace can cause serious imminent harm, they can file a complaint against their employer with OSHA. Workers are protected from retaliation, such as, being fired or demoted.

National Labor Relations Board (NLRB)

The National Labor Relations Board offers protection for workers who believe that their workplace is “abnormally dangerous”. Workers can complain to their employer about safety issues and even refuse to work. The National Labor Relations Act (NLRA) gives workers the right to “strike for health and safety reasons”. If a worker or group of workers believes that their workplace is abnormally dangerous, they can file a complaint against their employer with NLRB. Workers are protected from retaliation, such as, being fired or demoted.

Word of caution: Consult an experienced civil rights attorney before taking action.

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COVID-19: You should not have to risk your life to earn a living.

By Bryan A. Chapman, Esquire

If White House aides and Secret Service agents can become infected with COVID-19, then who is safe? We know that hospitals, nursing homes, jails, prisons, homeless shelters, and meat packing plants are hot spots for COVID-19 infections. But, is any workplace safe from COVID-19 infections?

In the midst of the 2020 COVID-19 pandemic, the country is abandoning stay at home orders and reopening the economy this summer. Millions of workers will be exposed to COVID-19 and, in the absence of a vaccine, thousands will die from COVID-19 infections.

For most workers, a COVID-19 infection will not be fatal. But, for a small group of workers, a COVID-19 infection will be fatal. Numbers show that for older workers with a comorbidity (hypertension, diabetes, heart disease, etc.) a COVID-19 infection can be fatal.

Americans with Disability Act (ADA)

The Americans with Disability Act (ADA) offers protection to workers with disabilities who are at heightened risk from COVID-19. The ADA allows workers with disabilities to request a reasonable accommodation from their employers. Employers are obligated to provide a reasonable accommodation provided doing so does not cause an undue hardship.

In the absence of a COVID-19 vaccine, a reasonable accommodation would involve reducing a worker’s exposure to COVID-19 until an effective COVID-19 vaccine can be administered. The ideal reasonable accommodation would be for the worker to work from home. However, working from home may not be possible.

Under the ADA, the worker and their employer have to engage in an interactive process to determine what kind of reasonable accommodation is available. Employers are expected to act in good faith, but this is not always the case.

An employer may fail to provide a worker with a reasonable accommodation. Retaliation is commonplace. And, it is not unusual for an employee who has been granted a reasonable accommodation to eventually be terminated for not performing the job for which their were hired. Reasonable accommodation claims can be contentious. These claims can end up in litigation.

However, for an older worker with a comorbidity, pursuing a reasonable accommodation can be a matter of life or death.

Word of caution: Consult an experienced civil rights attorney before seeking a reasonable accommodation.

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Advocating for workers against powerful employers since 1993

Bad Things Happen to Good People.

These are difficult times. You need a passionate lawyer to advise you and stand up for your rights.

What are your rights?

COVID-19 has caused massive layoffs. Nonetheless, anti-discrimination laws still exist and are enforceable. You can’t be discriminated against or harassed because of your race, sex, national origin, religion, age, or disability.

Workplace discrimination and harassment can cause stress, anxiety, depression, and post-traumatic stress disorder (PTSD). It can lead to chronic conditions, such as, high blood pressure and poor blood sugar control.

Doing nothing will harm your health. Taking action can bring relief. 

COVID-19

If you have a underlying health condition, such as, hypertension, diabetes, heart disease, etc., that puts you at greater risk from COVID-19, you have the right to request a reasonable accommodation that reduces your exposure to COVID-19. It’s a matter of life or death.

Call Now 202 508-1499.

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Families First Coronavirus Response Act: Employee Paid Leave Rights

Source: U.S. Department of Labor

The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020.

Generally, the Act provides that employees of covered employers are eligible for:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Covered Employers: The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.[1] Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision. 

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Eligible Employees: All employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.[2]

Notice: Where leave is foreseeable, an employee should provide notice of leave to the employer as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.

Qualifying Reasons for Leave:

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Duration of Leave:

For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.


For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay:[3]

For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).


For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).


For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).  [4]


[1] Certain provisions may not apply to certain employers with fewer than 50 employees. See Department FFCRA regulations (expected April 2020).

[2] Under the Act, special rules apply for Health Care Providers and Emergency Responders.

[3] Paid sick time provided under this Act does not carryover from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment.

[4] An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave under this section.

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COVID-19: The life you save may be your own.

By Bryan A. Chapman, Esquire

Speak up! If your job brings you in contact with co-workers or the general public, informing your employer about underlying health conditions that put you at greater risk of developing severe COVID-19 could save your life.

You have rights! The Americans with Disability Act (ADA) gives workers, who have disabilities that put them at greater risk of developing severe COVID-19, the legal right to request that their employer minimize their exposure to COVID-19.

There are a number of underlying conditions. The Center for Disease Control (CDC) released a document on March 12, 2020 titled “Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission.” The CDC document lists underlying conditions that can increase the risk of developing severe COVID-19:

  • Blood disorders (e.g., sickle cell disease or on blood thinners)
  • Chronic kidney disease as defined by your doctor. Patient has been told to avoid or reduce the dose of medications because kidney disease, or is under treatment for kidney disease, including receiving dialysis
  • Chronic liver disease as defined by your doctor. (e.g., cirrhosis, chronic hepatitis) Patient has been told to avoid or reduce the dose of medications because liver disease or is under treatment for liver disease.
  • Compromised immune system (immunosuppression) (e.g., seeing a doctor for cancer and treatment such as chemotherapy or radiation, received an organ or bone marrow transplant, taking high doses of corticosteroids or other immunosuppressant medications, HIV or AIDS)
  • Current or recent pregnancy in the last two weeks
  • Endocrine disorders (e.g., diabetes mellitus)
  • Metabolic disorders (such as inherited metabolic disorders and mitochondrial disorders)
  • Heart disease (such as congenital heart disease, congestive heart failure and coronary artery disease)
  • Lung disease including asthma or chronic obstructive pulmonary disease (chronic bronchitis or emphysema) or other chronic conditions associated with impaired lung function or that require home oxygen
  • Neurological and neurologic and neurodevelopment conditions [including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury].

You may be entitled to a reasonable accommodation. Under the ADA, some of these underlying conditions may be considered disabilities. A worker, whose disability puts them at greater risk from COVID-19, may request a reasonable accommodation that minimizes COVID-19 exposure. An employer may be obligated to provide a reasonable accommodation provided it does not create an undue hardship.

Be prepared to negotiate. The goal is to minimize your exposure to COVID-19. For instance, a worker with an underlying condition should have minimum exposure to co-workers and the general public. This may be achieved by temporarily reassigning a worker to a different work schedule, job location, or position, as well as, tele-commuting.

You could be saving your own life. Let your employer know about your underlying health condition and then negotiate for minimum COVID-19 exposure.

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