September 20, 2011

EEOC FILES ADA LAWSUITS AGAINST FIVE COMPANIES

by Art Gutman Ph.D., Professor, Florida Institute of Technology

I was struck while reading the news releases on the EEOC website (http://www.eeoc.gov) that five ADA lawsuits were filed in a span of less than two weeks (9/8/11 through 9/19/11). What’s striking here is not so much the number of lawsuits, but the reasons behind them. Four of the five employees worked for their employers for 13 or more years. The allegations, if true, reflect what I think are “worst practices.”

EEOC v. Walgreens
http://www.eeoc.gov/eeoc/newsroom/release/9-8-11c.cfm)

Josefina Hernandez, a cashier who worked at Walgreens for nearly 18 years, was fired after she opened a bag of potato chips while suffering a hypoglycemia attack. She had no disciplinary record and Walgreens knew of her disease. According to Hernandez, she usually carries snacks for such attacks, but did not have one on this occasion. EEOC San Francisco Regional Attorney William R. Tamayo noted “one wonders whether a long-term, experienced employee is worth less than a bag of chips to Walgreens.” (Approximate cost $1.39 cents)

EEOC v. Miles Kimball
(http://www.eeoc.gov/eeoc/newsroom/release/9-12-11.cfm)

Laura Nejedlo is a deaf person who was successfully employed by Miles Kimball for 13 years. According to the EEOC, she was assigned to use a new software program and was fired after her request for a sign language interpreter to help train her for optimal use of the new program. John Rowe, director of EEOC’s Chicago District, noted “all Ms. Nejedlo wanted was a sign language interpreter for training so she could keep on performing successfully. Our contention is that there was no good reason why Miles Kimball denied her an interpreter and then fired her.”

EEOC v. Buy Rite
http://www.eeoc.gov/eeoc/newsroom/release/9-13-11b.cfm)

According to the EEOC, Chris Cherling, an epileptic who was a night shift stocker at Buy-Rite, was fired a after he experienced mild seizures at work. Cherling was a 17-year employee, who by his report, had experienced such seizures in the past and, nevertheless, was able to perform his job. Buy-Rite claims that he was a danger to himself and others. The EEOC claims the proper action was to “request Cherling to take a fitness exam or provide medical documentation of his ability to perform the job duties required of his position…. to determine that Cherling was a danger to himself and others.” EEOC San Francisco Regional Attorney William R. Tamayo noted “Please don’t assume that having seizures caused by epilepsy automatically disqualifies your employee from doing a job, in this case as a stocker. It’s critical to use objective evidence to determine whether that particular individual can perform the duties of the job.”

EEOC v. McDonalds
(http://www.eeoc.gov/eeoc/newsroom/release/9-14-11b.cfm)

Derrick Morgan, who has cerebral palsy, worked at a McDonalds store from 2006 through 2009 without any problems. In fact, he was promoted to floor supervisor in 2008. However, after a change in ownership to a company that operates 20 franchises in central California, the EEOC alleges that new management demoted Morgan to a janitor, dramatically cut his hours, and reduced his hourly wages. Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, noted “this is a case where the company illegally stripped a well-qualified worker of his ability to earn a living due to misperceptions about his disability.”

EEOC v. Wal-Mart
(http://www.eeoc.gov/eeoc/newsroom/release/9-19-11a.cfm)

Marcia Arney, who also has cerebral palsy and worked for Wal-Mart for 22 years, attempted to return to work after surgery necessitated by her disability. Arney presented the store manager with a doctor’s note stating that she needed to take periodic breaks. The EEOC alleges that the manager, rather than returning her to work, demanded that Arney produce a medical release with no restrictions. EEOC Supervisory Trial Attorney Toby Wosk Costas noted “This skilled employee had decades of experience with customers who recognized and greeted her. She had a loyal customer base that also benefited the store. Not allowing her to return to her job or even discuss her temporary restrictions meant the loss of a loyal employee, and violated the federal law against disability discrimination.”

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