ADA: Strength Through Organizing

Twenty five years ago today,  former President George H.W. Bush signed into law one of the most important pieces of civil rights legislation in  world history – the Americans with Disabilities Act (ADA).

The ADA is the world’s first comprehensive civil rights law for people with disabilities.  The ADA makes it  illegal for employers to discriminate against qualified job applicants and employees based on their physical or mental disabilities. The law also requires employers to provide reasonable accommodations to applicants and employees who need them because of their disabilities, unless doing so would cause undue hardship. Until the ADA was passed, employers refused to hire workers who needed mobility aids, such as a wheel chair.

Passage of the act represents a hard-fought struggle and an  incredible triumph for disabled Americans, who were once the most neglected and powerless in the country.

The foundation for the ADA was set years earlier  in 1977 with the adoption of Section 504 of the Rehabilitation Act of 1973, the first U.S. federal civil rights protection for people with disabilities.  That law extended civil rights to people with disabilities in programs and activities receiving federal financial assistance, including schools and employment services. However, Section 504 l

anguished without regulations to implement the act.  Disability rights activists got fed up in 1977 and organized major demonstrations in 10 cities, including a 150-person sit-in in the office of the U.S. Dept. of Health, Education and Welfare in San Francisco’s federal building . The sit-in lasted 28 days and prompted then-HEW Secretary Joseph Califano to sign the implementing regulations for Section 504.

One of the organizers of the 1977 sit-in, the late Kitty Cone,  who had  muscular dystrophy and used a wheel chair, would later write:

”For the first time we had concrete federal civil rights protection. We had shown ourselves and the country through network TV that we, the most hidden, impoverished, pitied group of people in the nation were capable of waging a deadly serious struggle that brought about profound social change.”

Cone called  the sit in “a truly transforming experience the likes of which most of us had never seen before or ever saw again. Those of us with disabilities were imbued with a new sense of pride, strength, community and confidence. For the first time, many of us felt proud of who we were.  And we understood that our isolation and segregation stemmed from societal policy, not from some personal defects on our part and our experiences with segregation and discrimination were not just our own personal problems.”

The more one learns about the struggle for workers’ rights in America, the more it becomes apparent that anything is possible when people band together to demand their rights.

 

Pregnancy Discrimination Act: 35 Years Later

No Accommodation Requirement

Thirty five years ago this week, President Jimmy Carter signed into law the Pregnancy Discrimination Act of 1978 (PDA).

The PDA,  an amendment of Title VII of the Civil Rights Act, has proven to be a weak tool to combat  a major societal problem;  It  requires employers to treat pregnant women like others in the workplace but  it does not require employers to make even minimal accommEEOCodation for pregnancy-related conditions  (such as difficulties standing for long period, lifting restrictions, insufficient bathroom breaks, etc.).

Efforts last year to address the PDA’s shortcomings died in the U.S. Congress but the U.S. Equal Opportunity Employment Commission (EEOC) in its 2013-2016 strategic plan  identified combating pregnancy discrimination as a top priority. The EEOC, which is responsible for enforcing the PDA, characterizes the problem as an “emerging and developing” issue. Specifically, the EEOC said it would address the problem of “accommodating pregnancy-related limitations” under the Americans with Disabilities Act Amendments Act and the PDA.

The EEOC and Fair Employment Practice Agencies around the country reported 5,797 complaints of pregnancy discrimination in 2011.

True to its word, the EEOC has filed a spate of lawsuits this year to combat pregnancy discrimination. Most, if not all,  of these lawsuits involve individual defendants and somewhat minor settlements but the EEOC’s effort raises awareness of the problem and, hopefully, puts employers on notice that they are being watched.

 Lawsuits Filed

Here is a sampling of the lawsuits filed this year by the EEOC involving the PDA:

  •  EEOC v. Reed Pierce’s Sportsman’ Grille:  A woman who was four months pregnant with her first child was fired because, her supervisor allegedly said, “The baby is taking its toll on you.”  The EEOC  filed suit in the U.S. District Court for the Southern District of Mississippi.  After the defendant lost two motions to dismiss the case, it settled for $20,000.
  • EEOC v. Ramin, Inc.:   Ramin Inc., the owner of a Comfort Inn & Suites, allegedly fired a  housekeeper after she reported her pregnancy because of supposed concerns about potential harm that her job could cause the baby.  The EEOC filed suit in U.S. District Court for the Eastern District of Michigan. The defendant agreed to pay $2,500 in back pay and $25,000 in compensatory and punitive damages.
  • EEOC v. Engineering Documentation Systems, Inc.:  A management official allegedly made derogatory remarks about a pregnant worker and  refused her request to move her office closer to the restroom to accommodate her nausea.  While she was out on leave, the company changed her job description and then terminated her.  The EEOC filed suit in the U.S. District Court for the District of Nevada. The defendant agreed to pay $70,000 to settle the case.
  • EEOC v. James E. Brown & Associates, PLLC:  A  Washington based law firm offered Zorayda J. Moreira-Smith a position as an associate attorney in January 2011.  The firm allegedly rescinded its job offer  the same day after when Moreira-Smith told them she was six months pregnant and asked the firm about its maternity leave policies.  The EEOC filed suit in the U.S. District Court for the District of Columbia. The defendant agreed to pay an $18,000 settlement,  to implement a non-discrimination policy and  to provide training to the firm’s personnel.
  • EEOC v. Platinum P.T.S. Inc. D/B/A/ Platinum Production Testing Services:  A clerk  requested time off for medical treatment relating to her miscarriage.  After she missed five days of work,  the defendant fired her.  The EEOC filed suit in the U.S. District Court for the Southern District of Texas. The defendant agreed to pay $100,000 to settle the pregnancy discrimination suit.

U.S. Sen. Robert Casey, Jr., of Pennsylvania proposed the Pregnant Workers Fairness Act (PWFA) in 2012 to guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of a particular job, as long as the accommodation does not impose an undue hardship on the employer. The bill died in committee.

EEOC’s 1st Genetic Discrimination Class Action

Update: The U.S. Equal Employment Opportunity Commission settled this case on Jan. 10, 2014 when Founders Pavilion Inc.  agreed to a five-year consent decree in which it will provide a fund of $110,400 for distribution to 138 individuals who were asked for their genetic information and $259,600 to five individuals whom the EEOC alleged  were fired or denied hire in violation of the ADA or Title VII.

IGenesmagine that an employer could ask applicants  about their family’s medical history: “Do you have a parent or grandparent who suffered from epilepsy. sickle-cell anemia Huntington’s Disease, etc.?”

Why would an employer ask such a question? To find out if the applicant could have a genetic predisposition for a disease that could lead to higher medical expenses down the road. Many employers would simply throw the application into the garbage if an applicant answered the question affirmatively. 

So-called “genetic discrimination”  has been illegal since the  Genetic Information Nondiscrimination Act (GINA) was signed into law by former President George W. Bush  on May 21, 2008.  However, the U.S. Equal Employment Opportunity Commission (EEOC), the authority responsible for enforcing GINA, has done little to enforce it.  Until now.

One of the six national priorities identified in the  EEOC’s strategic plan is  to address emerging and developing issues in equal employment law, including the problem of genetic discrimination.

 The EEOC filed and settled its first GINA lawsuit on the same day earlier this month when it reached a consent decree with a Tulsa, Oklahoma company,  Fabicut, Inc.   Now the EEOC  has filed its second federal GINA lawsuit and its first Class Genetic Information Discrimination Suit.

Violations

The EEOC alleges that  Founder’s Pavilion, Inc., a  Corning, NY, nursing and rehabilitation center, violated GINA by asking for genetic information during the hiring process. Founders is also charged with violating the Americans with Disabilities Act  (ADA) and Title VII of the Civil Rights Act of 1964.

Founders allegedly conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information.

The lawsuit alleges that Founders fired two women because of perceived disabilities and fired another employee after it refused to accommodate her during her probationary period,  all in violation of the ADA.

Founders also allegedly either refused to hire or fired three women because they were pregnant, in violation of Title VII.

The EEOC filed the lawsuit in federal court after it was unable to reach a pre-litigation settlement with Founders. 

GINA

GINA prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process.

“GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law,” said Elizabeth Grossman, the regional attorney in the EEOC’s New York District Office. “Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women.”

GINA also forbids unions and labor organizations from discriminating on the basis of genetic information.  

Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. This form of discrimination was evident in the 1970s, which saw the advent of programs to screen and identify carriers of sickle-cell anemia, a disease which afflicts African-Americans.  In the early 1970s, some state legislatures began mandating genetic screening of all African-Americans for sickle-cell anemia, leading to discrimination and unnecessary fear.

Furthermore, genetic history does not  always equal genetic future. As a result of rapid advances in technology, there is far less certainty today that any individual will inherit  or be incapacitated by a genetic disease.

 * Patricia G. Barnes is the author of Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

EEOC Settles1st Genetic Discrimination Suit

GenesThe U.S. Equal Employment Opportunity Commission has settled its first  lawsuit alleging genetic discrimination.

 Fabricut, Inc., one of the world’s largest distributors of decorative fabrics, has agreed to pay $50,000 to a woman who  applied  unsuccessfully for a position of memo clerk at the company.

The Tulsa, Oklahoma corporation “allegedly” violated Genetic Information Nondiscrimination Act of 2008  when it asked job applicant Rhonda Jones for her family medical history in its post-offer medical examination. Jones was required to fill out a  questionnaire asking about “the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and ‘mental disorders’ in her family.”

The EEOC filed the lawsuit and the settlement on May 7 in U.S. District Court for the Northern District of Oklahoma. The EEOC called it  the first lawsuit ever filed by the EEOC alleging a violation of GINA. 

“Fitness for Duty”

 This may be the first EEOC lawsuit alleging genetic discrimination but it follows a controversy last year when the EEOC sought to enforce an administrative subpoena seeking genetic information collected by Nestle Prepared Foods.

The EEOC was investigating a complaint of genetic discrimination by Nestle employee Michael Peel, who was fired a month after he was required to complete a “fitness-for-duty” medical examination that included the collection of his family medical history.

 Nestle and the National Chamber of Commerce objected to the subpoena.

 A federal judge in Kentucky refused to enforce the subpoena after concluding he was “ not persuaded that [the EEOC] has free reign to conduct a broad, company-wide investigation based upon a single  allegation of an isolated act of discrimination.”

Disability Issue 

Fabricut also was charged with violating the Americans with Disabilities Act (ADA) because it  deemed Jones unsuitable after concluding that she had carpal tunnel syndrome even though Jones’ physician said she did not have carpal tunnel syndrome. The ADA prohibits discrimination against qualified individuals with disabilities and  individuals who are incorrectly regarded as having disabilities.

After working a temporary position as a memo clerk for 90 days, Jones applied for a permanent job. Fabricut made Jones an offer of permanent employment on Aug. 9, 2011, and sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. Jones was required to fill out a questionnaire seeking disclosure of medical disorders in her family’s medical history.

 The examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome. Fabricut told Jones she needed to be evaluated for CTS by her personal physician and to provide the company with the results. Jones’s physician gave her a battery of tests and concluded that she did not have carpal tunnel syndrome. Despite this Fabricut, rescinded its job offer because Knox Labs indicated that she did have carpal tunnel syndrome.

 Fabricut  also agreed to disseminate anti-discrimination policies to employees and provide anti-discrimination training to employees with hiring responsibilities.

 Title II of GINA prohibits employers with more than 15 employees, employment agencies, labor organizations, and joint labor-management training and apprenticeship program committees from using genetic information when making employment decisions (e.g. hiring, firing, promotions, placement, compensation, privileges, seniority, etc.).