disability discrimination

Employer Fired HIV-Positive Worker, Fined $125K for Disability Discrimination

April 2, 2015 | by Nassiri Law

In the 1980s, a diagnosis of HIV or AIDS was a death sentence. It was also essentially a license to discriminate, and employers did so frequently.

Although it has since become illegal to do so and the stigma surrounding the condition has waned, discrimination against HIV-positive workers continues. Some of it based in the misguided belief that the condition is associated with immoral behaviors or identities of which certain people may disapprove (i.e., drug use, sex work, homosexuality or infidelity). Other times, discrimination is perpetuated by a misunderstanding of how the disease is transmitted and who could be placed at risk.

In the U.S., taking adverse employment action against a worker because the worker is HIV-positive is a form of disability discrimination, and it’s illegal.

Walz v. Ameriprise Fin. Inc. – Mental Illness Discrimination Allegation

March 21, 2015 | by Nassiri Law

A federal appeals court has affirmed a judgment in favor of a company accused of disability discrimination, finding because employee never informed her bosses of the nature of her disability and never requested accommodations, she could not prove the reason for her termination was the disability.

Walz v. Ameriprise Fin. Inc. is an interesting case insofar as it deals with mental illness as a disability – which it most certainly can be. However, there remains an intense stigma around such conditions, so that makes it more understandable that a worker would not disclose this condition to employers.

But as this case shows, failure to do so could leave the worker legally unprotected in the event of an adverse employment action. This particular case originated in a federal court in Minnesota, and was most recently weighed by the U.S. Court of Appeals for the Eighth Circuit.

LinkedIn and the Rise of “Big Data” Discrimination Cases

December 1, 2014 | by Nassiri Law

The use of social networking websites, contact sharing, and data collection on the internet, unscrupulous companies should be aware of the potential liabilities that come with using big data. LinkedIn, the well-known professional social networking site, is facing a federal class action lawsuit for violating the Fair Credit Reporting Act (FCRA). According to the complaint, the company sold information about user’s employment history to potential employers without consent. This kind of information has the potential to be extremely damaging to employees, resulting in adverse employment action, including failure to hire, demotion, or termination of employment.

Under the FCRA, employers must follow strict guidelines about how they use employee credit, employment and insurance history. These protections are in place to ensure that employees are not wrongfully targeted or discriminated against during the application process. Employers must follow strict requirements related to consent to access data. They must also supply notices to applicants before they take any adverse action against an employee, including failure to hire, demotion, failure to promote, or termination of employment. Employees who lose opportunities as a result of their employment, credit, or other history must be given notice and the opportunity to contest the information provided by a reporting agency.

According to the lawsuit filed against LinkedIn, the company violated the FCRA by selling “profiles” on millions of users without verifying that the information would be used for legal purposes. There is some speculation that the case will turn on whether the company qualifies as a Consumer Reporting Agency and is held to the standards of the FCRA. Regardless, employees should be aware of the information that could be used against them, whether online and available to the public, or provided by third-party reporting agencies. Employers who use information illegally, including medical documents, credit card history, or credit reports, criminal records, as well as other personal information can be held liable.

EEOC: Testing Applicants for Carpel Tunnel is Illegal

November 30, 2014 | by Nassiri Law

With an increasing number of Americans making a living at their computers, carpal tunnel syndrome had been a rising diagnosis—as well as a concern for employers. In addition to workers’ compensation claims that have been tied to the repetitive stress disorder, employers have lost work time and productivity because of the condition. According to a recent lawsuit filing by the Equal Employment Opportunity Commission (EEOC), companies are prohibited from screening employees for carpal tunnel during the hiring process. The lawsuit was filed against a manufacturing company that allegedly used physical test and health histories to identify those who had a history of carpal tunnel syndrome.

According to the complaint, the company asked its applicants whether or not they had a history of carpal tunnel syndrome. In addition to inquiring, the company went so far as to conduct a nerve text, even though medical authorities do not support the use of these tests or medical records to determine whether an individual has or is susceptible to carpal tunnel syndrome. After conducting medical inquiries and subjecting applicants to testing, the company refused to hire the plaintiff and another fifty or more applicants because of a history of carpal tunnel or the alleged potential to develop it in the future.

The EEOC alleges that the testing and adverse employment action is a violation of the Americans with Disabilities Act (ADA) and filed a lawsuit against the manufacturing company. After failing to reach a pre-litigation settlement, the EEOC filed the suit with the U.S. District Court for the Southern District of Illinois. The EEOC is seeking to end the discriminatory hiring practices, as well as collect back pay and additional damages for those who were denied employment as a result of the medical inquiries and testing.

EEOC Settles Genetic Discrimination Case in CA

November 18, 2014 | by Nassiri Law

The Genetic Information Non-Discrimination Act (GINA) prevents employers from discriminating against employees or potential employees based on their genetic or family medical history. In a recent case, the Equal Employment Opportunity Commission settled a class action for $187,000 with a California seed and fertilizer operation for refusing to hire applicants after reviewing medical histories and the medical histories of the applicant’s family members. According to the EEOC, the class action (EEOC v. All Star Seed) was filed in September of 2013 against All Star Seed Inc. and its subsidiaries.

A job applicant filed a complaint with the EEOC in November 2012 after he was denied a position as a dispatcher for the company. According to court documents, the company rejected his application after he reported for being hospitalized for atrial fibrillation, even though the condition had no connection to job duties related to the position. The applicant also reported that the company inquired about the medical history of his relatives and he reported that at least one of his family members had the same medical condition.

Employees in California and nationwide are protected under state and federal laws to prevent discrimination in the workplace. GINA makes it illegal for employers to discriminate against applicants and employees based on genetic information. Genetic information may be accessible through medical documentation and family history. The law prohibits employers from requesting medical histories from applicants or from seeking out or purchasing the information from other sources.

McDonald’s Franchise Owner Sued by EEOC for Disability Discrimination

November 16, 2014 | by Nassiri Law

The American Disabilities Act protects individuals who suffer from physical or mental disabilities against discrimination. According to reports from the Equal Employment Opportunity Commission , the owner of a McDonald’s franchise in Oakhurst and the affiliated property management company illegally discriminated against an employee because of his cerebral palsy. EEOC reports indicate the worker suffered unlawful demotion and was forced to quit. In response, the EEOC has filed a disability discrimination lawsuit against McDonald’s.

The EEOC is the federal agency charged with ensuring compliance with federal labor and employment laws. According to the agency, the employee had worked for a prior owner of the Oakhurst McDonald’s without facing any difficulties or discrimination since he was first hired in 2006. He was a valued employee and was even promoted from a crew member to a floor supervisor after two years of working at the location. Co-workers and former supervisors regarded him as a highly capable and a good employee.

In January 2008, Alia Corporation assumed control of the restaurant. The company owns and operates over 20 McDonalds’ franchises throughout the Central California area. Within a few months of taking over the Oakhurst location, the management company demoted the employee to janitorial duties, reduced his hours and cut his wages. The EEOC reports as a result in the significant loss of wages, the employee was forced to quit less than six months after the Alia Corporation take over.

EEOC Sues Honeywell Over Wellness Testing

November 14, 2014 | by Nassiri Law

Wellness tracking programs are increasingly under scrutiny by employee rights advocates, health care professionals and other policy makers. In yet another case that challenges the legality of the employee wellness program, the U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Honeywell International to stop the company from penalizing employees who refuse to undergo medical testing under the purported corporate wellness program. This is the third such case filed by the EEOC since August, but Honeywell is the largest corporation targeted so far.

Advocates for wellness programs say they can boost employee morale, ensure healthy habits among employees and reduce overall medical costs. While companies may have incentive to track the health of employees, critics point out they are invasive and could violate medical privacy laws. Despite the potential abuse of corporate wellness programs, the Affordable Care Act (ACA) actually promotes and encourages employee wellness tracking. Honeywell has been charged with penalizing employees up to $4,000 each through surcharges and other lost contributions for failing to participate. The employees can incur such losses if they or their spouses refuse to comply with the biometric testing.

Under the Honeywell corporate wellness tracking system, employees must undergo screening for blood-sugar levels, nicotine, waist circumference, cholesterol levels, and blood pressure. According to the lawsuit, the testing was to occur the last week of October this year. The EEOC is the law agency that enforces federal labor laws and instances of discrimination. According to the EEOC, Honeywell’s employee testing program is in violation of the Americans with Disabilities Act as well as the Genetic Information Nondiscrimination Act. The agency filed the lawsuit asking for a preliminary injunction and a temporary restraining order to stop the company from imposing penalties.

Weight Discrimination in the Workplace—Should There Be Legal Protection?

November 12, 2014 | by Nassiri Law

Protected classes under California state and federal law are always evolving. Minorities, women, those with disabilities and members of the gay and lesbian workforce were not always given legal authority in the face of discrimination. A new class has emerged raising a new question—should the obese be established as a protected class? According to a recent publication in the Washington Post, the overweight—specifically women who are overweight—are more likely to earn less and suffer adverse employment action, including lower pay. A new study shows that the reality of weight discrimination in the workplace may demand additional protection, especially for women.

According to the study, conducted by Vanderbilt University Law School, women are increasingly less likely to work in higher paying jobs and more likely to work lower paying jobs if they are heavier. The study also looked at a correlation between “personal interaction” jobs and “physical activity” jobs, the former including sales or communications positions, and the latter including home health care, food preparation or other physical positions. When comparing the data, women were likely to make less the heavier they became, even though data did not reflect the same trends among male workers. According to the analysts, men did not seem to fare any worse when they gained weight.

Though beauty or physical attractiveness have long been tied to better wages for both men and women, the reason for the disparate impact of weight on a man or woman’s income is unclear. A basic understanding of the data suggests that a woman’s appearance is simply more important on the job than a man’s. Still, the trend suggests that women are unfairly suffering from discrimination if they are overweight. Our Orange County discrimination attorneys are dedicated to protecting the rights of women and the disabled in the workforce. If you believe you have suffered from workplace discrimination, we can review your case, determine the proper course of action and help you protect your rights.

Bluestein v. Cent. WI Anesthesiology, S.C: Employment Discrimination

October 24, 2014 | by Nassiri Law

Bluestein v. Cent. WI Anesthesiology, S.C, an appeal from the United States Court of Appeals for the Seventh Circuit, involved an anesthesiologist who sued her employer for wrongful termination under Title VII of the Civil Rights act of 1964, the Rehabilitation act of 1973, and the Americans with Disabilities Act (ADA).
Plaintiff’s employer was technically a service organization formed to engage in providing anesthesia services. She was initially hired as an employee and then became a shareholder and member of the company board of directors. In addition to her work as a physician, plaintiff was elected to be the treasurer of the organization.

Originally, plaintiff was working in a part-time capacity but then switched to working up to 90 percent time providing anesthesia services. After five years of working nearly full-time, she was injured in a kayak accident. Her injuries and resulting conditions included ischiogluteal bursitis, proximal hamstring endiopathy, and several other neurological issues. Continue Reading ›

EEOC Files First Lawsuit Involving “Employer Wellness Programs”

October 1, 2014 | by Nassiri Law

Employers have a number of incentives to impose wellness programs. Some business owners and corporate boards argue that they can lower healthcare costs, boost morale, and improve productivity. Despite the benefits of these programs, employer wellness incentives have been criticized for imposing invasive healthcare tracking policies and charging employees extra when they don’t meet certain standards. Nearly half of large companies have wellness programs, but many are under scrutiny. According to Kaiser Health, the Equal Employment Opportunity Commission brought a lawsuit on behalf of an employee who was punished and fired for refusing to participate in a company wellness program.

The lawsuit filed in federal court was the first to challenge a wellness program under the Americans with Disabilities Act. While many Americans approve of programs that promote healthy behavior, most would also agree that it is inappropriate for companies to force those who do not participate to pay higher premiums. Our Orange County employment law and discrimination attorneys are dedicated to protecting the rights of employees throughout Southern California. We take on cases involving discrimination and retaliation and can effectively protect the rights of employees who have suffered disability discrimination or adverse consequences related to wellness program refusal.

Under the Affordable Care Act, employers can reward or penalize employees who don’t meet specific health goals, including weight loss or reducing high blood pressure. According to federal standards, the standards must also provide a reasonable, alternative standard that allow workers to qualify even if they don’t meet specific outcome. Employers have complained that this loophole makes programs subject to abuse and are unfair to those employees who do meet standards.