Posted in disability civil rights, Employment, Essential job functions and disabilities, Reasonable accommodation

Getting real about disability laws: Can an employer ever fire an employee with a disability?

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We’re all on information overload these days. So much seems to be coming at us from all sides. Worse yet, it’s very hard to tell if the information we’re absorbing is accurate. And it can be even worse if you have a disability, because you’re more likely to be isolated and not as able to access the people or documents that can help you work towards the truth.

Speaking of disabilities, one of the areas rife with misinformation is the AMERICANS WITH DISABILITIES ACT (ADA) and other laws designed to help people with disabilities get as fair a shake as possible in our society. That is why I am writing this series about some of the most common mistaken beliefs about these laws.

Today, I’m going to shed some light on the myth that an employer cannot fire an employee with a disability.

MYTH
If an employee with a disability cannot do her job, the employer cannot fire her but has to hire someone extra or make other employees do the work.

TRUTH
Like with anyone else, an individual with a disability does not have an automatic right to stay in a job unless she can actually perform it.

But the ADA is different from other discrimination laws in this respect: If an otherwise qualified employee needs reasonable accommodation in order to perform the essential functions of the job, the employer must provide the accommodation unless it would result in an undue hardship to the employer or cause a fundamental alteration in the workplace.

EXAMPLE
An office receptionist with a spinal deformity cannot sit for more than an hour or so at a time. It would probably be a reasonable accommodation for the employer to let him get up and stretch his legs for a few minutes every hour. This would allow him to do the job, and would result in little or no cost to the employer. But if his condition worsened to the point where he often had to leave his desk in the middle of customer calls, it would likely become an undue hardship for the employer to tolerate this situation.

POSSIBLE SOLUTION
As previously discussed, the ADA challenges both employers and employees to put fresh eyes on workplace tasks and determine whether they can be done in an effective (and possibly non-traditional) way. The law also requires that employers and employees work together to determine the best way for that to happen.

In this case, one option might be for the employer to purchase a desk that allows the employee to stand up as needed to do the job. Another might be to supply a cot or couch where the employee can answer the phone for part of the day. There are many potential solutions to this problem, and one of the best places to find them is at a government website called the JOB ACCOMODATION NETWORK. https://askjan.org

For more information, go to the “Employment” section on this website, or to https://www.ada.gov.

Posted in Accesibility for People with disabilities, Baseball, disability civil rights, Reasonable accommodation

What’s Wrong With This Picture?

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Well, nothing – unless you happen to be an individual with mobility and/or balance problems. Then, this scene could quickly turn into a nightmare.

More realistically, we probably just wouldn’t go to whatever this game is. Then we would lose the opportunity to have a pleasant evening, contribute to the economy and be more integrated into mainstream society.

This and thousands of similar scenes are part of the reason the Americans with Disabilities Act(ADA)  was enacted in 1990.

The ADA defines sports arenas as public accommodations (see the “public accommodations”  link on this site). As such, they are required to accommodate people with disabilities, as long as that accommodation does not create an undue burden.

So what might “accommodation” look like in this scenario? It could be a number of different things: installing hand railings, designating certain seats outside of this area for people with disabilities and their companions, providing physical assistance with getting up and down the stairs, etc.

In 2011, new regulations were issued that clarify much of what the law requires, as well as practical examples of what compliance might look like. Those regulations are in the link below.

Play ball!

https://adata.org/publication/disability-law-handbook#Ticketing,%20Reservations,%20and%20the%20ADA

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Posted in Employment, Public Perceptions of Disability, Reasonable accommodation, Walmart

Walmart Gains some Unwanted Publicity in Disability Discrimination Claim

Nancy Stack worked for a Walmart store in Illinois. She was also a cancer survivor and had some residual physical limitations.

Cancer unquestionably meets the definition of “disability” under the Americans with Disabilities Act (ADA). The ADA also requires that upon request, an employer “accommodate” an employee’s disability, as long as such accommodation does not create an “undue hardship.” Accordingly, Ms. Stack asked Walmart to give her a modified schedule and to also arrange for her to have a chair in her work area.

Ms. Stack alleged that although Walmart had initially agreed to this, it revoked this agreement “for no stated reason.” She no longer got the schedule change, and she had to fetch her own chair from elsewhere in the store (which was difficult because of her physical limitations). And as if this wasn’t enough, Ms. Stack also alleged that a co-worker harassed her by calling her a “cripple” and a “chemo brain.”

Ms. Stack sued Walmart, for both failing to accommodate her and allowing the co-worker cruelty to happen. The case was settled last December, with Walmart agreeing to pay $75,000.00 to settle Ms. Stack’s claim.

There is a great deal that we will never know about this case. In particular, we will never know if Ms. Stack would have been able to prove all of her claims in court. She did make it through the first hurdle, though – the EEOC investigated her claim and thought there was enough there to merit filing a lawsuit on her behalf. In addition, it seems to me that $75,000.00 is quite a bit to pay if this were just a “nuisance” claim.

But this case resonated with me. I investigated EEOC claims for many years, and I saw numerous situations where although it could not be proven that the employer technically violated the law, there was seemingly needless misery on all sides. This was often brought about by the parties simply refusing to listen to each other. Difficult as this may sometimes be, many employers have learned the hard way that listening to their employees can be much easier (and cheaper) than having to listen to EEOC investigators.

For more information on this case, see:

Wal-Mart to Pay $75,000 to Settle EEOC Disability Lawsuit