Posts Tagged ‘discrimination’

New Jersey Courts: Zero Tolerance, Zero Compassion

Friday, February 24th, 2012

You have to feel sorry for Erik Martin. He went to work for Quick Chek Corp in 1999 as an assistant store manager. He was promoted to store manager in the summer of 2000. He was diagnosed with Parkinson’s disease that same year. After informing his supervisor of his diagnosis, she advised him to keep his illness “hush, hush.” Martin complied, and never mentioned his illness to the company’s HR director. Martin missed work in 2004 and 2006 due to two mini-strokes and took a two-week leave of absence in 2007 because of depression. Despite his formidable physical difficulties – unrelated to work – he returned to work as soon as he was able.
In March 2008, Martin requested and received a demotion because his medical condition, combined with the lack of an assistant manager, precluded him from satisfying his work obligations. Later that same month, Martin injured his back at work. He contacted his doctor, who instructed him to take a darvocet that was previously prescribed to Martin’s mother-in-law. Martin visited the doctor the following day, at which time he was prescribed percocet to manage his pain.
Drug Policy
In keeping with company policy, Martin was drug tested two days after the injury. A few days later, he was contacted by the testing facility. They asked him to disclose the medications he was taking. He told them about his prescriptions, including the percocet, and also informed them about the darvocet he took on the day of the injury. Because he tested positive for darvocet without a prescription, the testing company reported a failed drug test and Quick Chek terminated Martin.
A reasonable person might think that Martin was in compliance with the company policy. He took a pill at the verbal direction of his doctor. Was this a “prescribed” medication? Well, that’s where a problem arises.

The word “prescription” comes from the Latin “praescriptus” compounded from “prae”, before + scribere, to write = to write before. Historically, a prescription was written before the drug was prepared and administered.

It appears that a “verbal prescription” is an oxymoron: if it isn’t in writing, it isn’t a prescription. [NOTE: the court ruling did not even address this issue.]
The HR director testified that his decision to terminate Martin was based on the failed drug test. He further testified that in his thirteen years managing human resources for Quick Chek, he never made an exception to the company’s zero-tolerance drug abuse policy. The director also stated that he was not aware of Martin’s Parkinson’s disease until this litigation commenced.Thus Martin’s termination was consistent with company policy. And in the view of the court, the termination was perfectly legal.
The court wrote:

Unquestionably, the company’s drug policy was enforced in a harsh fashion against Martin. The company relied completely on the assessment of the testing company that Martin “failed” the drug test. Quick Chek operates in such a way as to delegate total discretion to interpret the drug test results to the testing company. Once deemed to have failed the drug test, an employee is terminated without exception with no apparent right of appeal. In Vargo v. National Exchange Carriers Assn., Inc., 376 N.J.Super. 364, 383 (App. Div. 2005), we held that a company need not investigate possible legal reasons for a positive drug test before taking action with regard to a prospective employee; nor should such a duty exist with respect to existing employees. NJLAD is not offended by a private company’s lack of compassion in these circumstances.

Note how the court starts with a precedent involving a job applicant and then applies it to a loyal employee of long standing: “nor should such a duty exist with respect to existing employees.” The court may not see any difference between an applicant and a loyal employee, but I do.
No Room for Compassion
The court “is not offended by a private company’s lack of compassion.” Well, I am. Zero tolerance policies back companies into a corner; their rigidity may eliminate the need for discretion, but in doing so, these policies also eliminate many good employees. A little discretion in the hands of good managers is a powerful tool toward building a positive work culture. By contrast, zero tolerance policies may provide an illusion of control over matters that are difficult to control, but they are not an effective way to run a company (or a school, for that matter). Indeed, the policy makes it difficult for the company to fulfill its promise as a great place to work:

Quick Chek is proud to be one of NJ’s Best Places to Work! With 2,600 team members in over 120 stores, we strive to create a positive experience and fun environment where core values are nurtured, hard work is rewarded and leadership is cultivated.

I wonder what Erik Martin thinks of the company’s “core values.” When his illness prevented him from doing his job, he requested and was granted a demotion. When his illness prevented him from working, he took (unpaid) time off and focused on recovery. When he was injured at work, he followed his doctor’s orders and his company’s procedures. Martin’s loyalty and perseverance are admirable qualities, but they did not buy him much in the corporate offices of Quick Chek or the courtrooms of New Jersey.

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Posted in Best Practices, Disability, Law, Medical Issues, State News | 1 Comment »

Older Workers: How Old is Too Old?

Tuesday, October 11th, 2011

For 36 years Rodolfo Meza worked for Aerol Corporation in Rancho Diminguez CA as a metal worker making cast iron and aluminum molds. He was about 48 when he began working; he was about 84 when he was terminated while on medical leave for a knee operation. Rodolfo sued, claiming age discrimination, raising the question: how old is too old to work?
In the course of his trial and subsequent appeal, Rodolfo noted that his immediate supervisor commented frequently about his being “too old to work.” Despite operations for a hernia and a knee replacement (the court rulings do not indicate whether these were covered by workers comp), Rodolfo had every intention of continuing to work. When his normal job became a bit difficult for him to perform, he requested a transfer to the engineering department, where he often had performed work. His supervisor responded “no, Rudy I can’t [transfer you]. You are too old to move to engineering.”
When he was terminated in 2009, his 24 year old son (conceived when Rodolfo was 60!) noted that he became sad and depressed.
Age Has Its Benefits
A jury awarded Rodolfo $100,000 for future economic loss: based upon his annual earnings, that’s a little over three additional years of employment, bringing Rodolfo to age 87. In addition, they awarded $300,000 for past non-economic damages (presumably, the ongoing agist comments of his supervisor). That’s a lot of money for an individual nearly 20 years past the conventional retirement age.
Aerol appealed and lost. The CA Court of Appeals found a pattern of discrimination, along with a legal technicality that prevented Aerol from contesting the award for the future earnings: Aerol failed to raise the issue in a timely manner during the initial the trial.
Expensive Lessons in Human Resource Management
Is the court saying that employers must continue to employ workers into their 80s, with no recourse available to force retirement? Can workers work as long as they like?
Not really.
Aerol – through the actions of Rodolfo’s supervisor – made a number of critical mistakes in managing this situation. The supervisor made repeated comments about Rodolfo’s age; the supervisor should have been warned to cease this behavior and disciplined if he continued. Rodolfo had an exemplary record of employment; there was no (written) indication that his performance had deteriorated. When Rodolfo felt less capable of doing his regular job and requested a transfer, he was denied the opportunity based solely upon his age. When he requested time off for the knee surgery, it was granted; there was no indication that his job would be eliminated during his absence, but that’s exactly how Aerol proceeded.
A Word to the Wise on Aging
Savvy employers would do well to learn from Aerol’s mistakes:
– Never assume that based solely upon age a worker is “too old”
– Focus on the essential job requirements: employees must be able to safely perform jobs as specified (some accommodation based upon age should be considered)
– Document any problems in performance
– Train supervisors in managing older workers (along with women, minorities, disabled workers and any other protected classes)
– Above all, keep lines of communication open.
Rodolfo gave 36 years to Aerol. He deserved consideration as he grew older, but he was not guaranteed a job. If and when any issues of his job performance arose, his supervisor should have sat down with him to discuss them openly. Ironically, there are no real winners in this situation: Aerol (or its insurer) took a big hit economically. They also lost a loyal employee who was still capable of making a positive contribution to the company. Rodolfo lost the job he loved and lived for. To be sure, he now has a nice nest egg for retirement, but that is not what he wanted most. He was one older worker who just wanted to keep on working.

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Austin City Limits: Payment for Prejudice

Wednesday, April 27th, 2011

Edwin Graning drove a van for the Capital Area Transportation System (CARTS), which serves the public in the communities surrounding Austin, Texas. He is also an ordained minister. He was sent to pick up two women and deliver them to the Planned Parenthood office in Austin. He was “concerned” that the customers were going to Planned Parenthood for an abortion, so he called his supervisor and told her that in good conscience, he could not carry out the job. He was instructed to return to the garage, where he was promptly terminated for this refusal to follow orders.
Graning, supported by lawyers from the American Center for Law and Justice, alleged a violation of the Civil Rights Act of 1964. (Goodness, quite a bit of irony in that!) He sued his employer for discrimination based upon religious beliefs. In the lawsuit, he sought reinstatement with backpay, payment for his pain, suffering and emotional distress.
Surely, there is no basis in the law for this claim. Surely, Graning is the one who should be sued. Then again, this is the Lone Star state that some would transform into a sovereign nation.
Unsettling Settlement
Lawyers for CART advised them to settle. Blanco County Commissioner Paul Granberg said that the attorneys “advised the board that it would cost a lot more in attorney fees than it would cost to settle.” So they wrote a check to Graning for $21,000. Is there any such thing as principle in law these days? Did CART’s attorneys even consider doing what is right and just?
CART, which did nothing wrong, has changed its hiring procedures, to prevent a recurrence of this ludicrous situation. David Marsh, CART general manager, said officials have begun making it clear when drivers are hired “that we have a job to do and we don’t decide what destinations are.” Boy, that must be a revelation (no pun intended) to people applying for jobs as drivers.
Graning has been amply rewarded for his discriminatory and prejudice-laden act. He had no way of knowing why the customers were going to Planned Parenthood, which offers a wide range of health services, by no means limited to abortion. He was represented in this crackpot lawsuit by attorney Thomas Brandon, Junior, of counsel to Whitaker, Chalk, Swindle & Sawyer. Chalk it up as a Swindle, indeed.

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Posted in Best Practices, State News | 1 Comment »

Holiday Health Wonkery and other news briefs

Friday, December 10th, 2010

Brad Wright has an excellent holiday edition of Health Wonk Review posted at his blog, Wright on Health – check it out! It’s the last issue until 2011 so fill up on your health wonkery now!
And in other news briefs….
Nix on the Mine Safety Bill – Ken Ward of Coal Tattoo reports that an attempt to resurrect a major mine safety reform bill was defeated in the House of Representatives, but that the House did approve more funding for mine safety.
The Most Influential People in Workers Comp for 2010 – as designated by Workers’ Comp Executive – hat tip to Roberto at Comp Time for the pointer.
Healthcare reform and workers comp – Joe Paduda or Managed Care Matters offers his analysis of the SwissRe analysis of health reform and workers comp.
Health Care and the Uninsured – HealthLawProfBlog offers helpful links to important parts of the updated Kaiser Family Foundation’s Commission on Medicaid and the Uninsured.
The Bunkhouse Rule – Do you know what this is? If not, Judge Tom offers a good example.
Overview of Wal-Mart Stores Inc. v. Dukes – atty. Gerald Maatman presents a backgrounder and overview of the class action gender discrimination suit against Wal-Mart which is being heard by the Supreme Court.
Eight tips for meeting with a potentially violent employee – tips from attorney Robert Bettac’s recent presentation at BLR’s National Employment Law Update are posted at HR Daily Advisor.
Worried about scanner-related radiation? – Check out this line of radiation shielding and privacy undergarments. Not sure if they work, but they are a hoot.
A few new-found resources

  • Actuary Info Blog – we’ve linked to this smart blog before – it bills itself as a “brain teaser Blog with non-conventional, witty, remarkable and serendipitous financial and actuarial related news.” There are some fun and thoughtful entries.
  • The OSHA Updater – a safety blog by Chad Marshman of the EasySafetySchool.com
  • DocuBase – a hand-picked selection of resources, reports and publications from government agencies, NGOs, think thanks and other public interest organizations
  • Safe Lifting Portal focuses on patient safety and caregiver injury prevention, sponsored by Liko, a designer and manufacturer of lifts, slings and patient transfer accessories.
  • Crowd Management Safety Guidelines for Retailers – an OSHA Fact Sheet

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Record workers comp-related ADA payout

Wednesday, February 17th, 2010

An employer’s failure to to accommodate an injured worker to return to the workplace can be costly – just ask Sears Roebuck & Co., who learned the hard way. The U.S. Equal Employment Opportunity Commission (EEOC) just announced that Sears will distribute $6.2 million to 235 former employees, the result of Americans With Disabilities Act (ADA)-related litigation. The monetary distribution stems from a September 2009 consent decree which resolved a class lawsuit against the retail giant. It is the largest ADA settlement in a single lawsuit in EEOC history.
This case began in 2001, when appliance technician John Bava injured his knees, wrist, and back after falling down the stairs while on a service call at a customer’s home. The injuries required two surgeries and physical therapy.

“Afterward, he tried to go back to work under restricted conditions in which he would not be required to kneel or squat for a prolonged period. “They wouldn’t let me come back,” he said.
Bava, 58, said he applied for several other jobs at Sears, including a service manager position that he claims went to someone younger and less qualified. He said he learned he had lost his job when his wife tried to use his employee discount card and found it had been canceled.
Bava obtained a copy of his personnel file from Sears, and found a memo saying he had been fired for medical reasons.
Bava said he now works as a repairman for another employer and stays busy despite the restricted conditions that his injuries make necessary.”

Bava filed a discrimination charge through the EEOC. A subsequent investigation by EEOC turned up 235 other employees who sought return to work with an accommodation, but were fired by the company; more than 20 other claimants’ situations were investigated and found to be ineligible.
The average award is approximately $26,300. According to reports in the National Law Journal via Law.com, employees will receive between $2,500 and $122,500 each, depending on their individual circumstances. As with all EEOC litigation, none of the settlement fund will retained by the EEOC; all of it will be distributed.
Employers would do well to examine their own return-to-work policies and programs in light of the other provisions that the three-year consent decree prescribes beyond monetary relief: an injunction against violation of the ADA and retaliation, a requirement that Sears amend its workers’ compensation leave policy, and train its employees regarding the ADA. Sears must also provide written reports to the EEOC detailing its workers’ compensation practices’ compliance with the ADA and post a notice of the decree at all Sears locations.
Besides compliance with the ADA, there are several other lessons to be learned by the stunning lack of communications evidenced in this case:

  • When an employee is out on disability, stay in frequent communication to monitor their recovery progress
  • Have a return-to-work goal and plan for all injured workers
  • If you fire employees, tell them! They shouldn’t have to learn about it through canceled benefit cards.

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Annals of Dress Codes: With That Ring, I thee Fire!

Tuesday, September 15th, 2009

Hawwah Santiago was a “sandwich artist” at a Subway restaurant in New Smyrna Beach, Florida. She was fired after refusing to remove her nose ring while at work. Visible body piercings (other than earrings) violated the company dress code. Ms. Santiago sued, claiming that the nose ring was a practice of her Nuwaibian religion. The Nuwaibians, based in Eatonton GA, are a black supremacist cult with an elaborate set of beliefs, some of which require an inordinate degree of faith. Here is a very brief sample, courtesy of Wickipedia:

The Illuminati have nurtured a child, Satan’s son, who was born on 6 June 1966 at the Dakota House on 72nd Street in New York to Jacqueline Kennedy Onassis of the Rothschild/Kennedy families. The Pope was present at the birth and performed necromantic ceremonies. The child was raised by former U.S. president Richard Nixon and now lives in Belgium, where it is hooked up bodily to a computer called “The Beast 3M” or “3666. [Hmmm. Wonder what brand of virus control is used on the computer.]

There is an underground road connecting New York and London.

The issue here is not the quality of Santiago’s beliefs, but whether these beliefs entitle her to an exemption from company dress policy. The EEOC supported her charge of religious discrimination in the firing and brought suit against the employer. (While a government agency may not be in an ideal position to determine where religion ends and whackiness begins, the EEOC appears to have erred on the side of inclusiveness.)
A jury found that Ms. Santiago did not wear the nose ring because of a “sincerely held religious belief.” Not satisfied, the EEOC sought injunctive relief and punitive damages. But the court dismissed the case. Judge John Antoon II wrote: “The EEOC’s own publications acknowledge that some inquiry into the sincerity of an employee’s belief is appropriate. Otherwise, an employer would have to grant an accommodation any time an employee requested one.”
The leader of the Nuwaubians, Dwight York, currently rules his flock from a jail cell, where he resides under a sentence of more than 135 years for racketeering and child molestation (“suffer the children”?). Oh, ye of little faith! Someday in the not-too-distant future, York will begin his leisurely stroll through the underground road that runs from New York to London. Deep beneath the turbulent waters of the Atlantic Ocean, he will doubtless pause along the way for a delicious sub, lovingly prepared by a sandwich artist with dazzling piercings. When he emerges at last in London – near the lions guarding Nelson’s column, one assumes – the doubters will be vanquished and Nuwaibian claims for religious accommodation will finally be deemed credible.

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Brave new world: genetic testing and workers compensation

Wednesday, September 26th, 2007

The good news is there are new technologies that hold the promise of ending fraudulent or inappropriate disability and workers’ compensation claims. The bad news is that you’ll need to get in the business of harvesting and tracking your employee’s DNA to get there, venturing into relatively uncharted legal waters. Workforce Management and BBC both discuss the new technologies in DNA Technology May Curb Bogus Disability Claims and DNA test hope over damages claims. According to the Workforce article:

Developed by the Cytokine Institute, a research and consulting firm affiliated with the University of Illinois College of Medicine at Chicago, the technology uses DNA to determine a link between exposure to a toxin and a serious illness. It does so by identifying a toxin’s unique DNA signature on a person’s affected cells.
The technology, launched in June, has already been used in two dozen civil lawsuits between workers and insurance companies to verify the connection between exposure to toxins and a serious illness, says CEO Bruce Gillis, a doctor specializing in medical toxicology.
“It will get rid of all the nuisance and frivolous lawsuits once and for all,” Gillis says.

In addition to the application for illnesses and exposures to toxins, testing may also be able to tell if an injury has even occurred. The Workforce article also discusses technology that can measure cytokines or small proteins in a person’s cells, which elevate when an injury occurs. Cytokines can be measured as a before and after baseline to verify that an injury has occurred.
Exercise caution when jumping in the gene pool
Before you get too excited, you might check in with your lawyers, many of whom are likely to advise caution due to potential problems with privacy and discrimination issues. While there are no federal prohibitions against genetic testing, at least 30 states have laws that may say otherwise. HR Hero sheds light on the status of federal legislation putting limits on genetic testing in Lifeguard on duty: Congress patrols the gene pool, excerpted from Arizona Employment Law Letter. While many of the legal prohibitions deal with matters related to hiring discrimination and insurance denial rather than work injuries, attorneys advise a conservative approach in matters dealing with employees’ genetic information.
Genetic testing is already a hot button employment issue. Its application to workers’ compensation and other disability matters is an issue that bears watching. For a handy reference guide, the National Conference of State Legislatures offers a chart on State Genetics Employment Laws.

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“My Supervisor’s Dead! Praise the Lord!”

Thursday, April 13th, 2006

Many employees wish that their bosses would drop dead, but when it actually happens, is it OK to celebrate in the workplace? If you ascribe the death to an act of God, is your speech protected under your freedom to practice religion?
We read in Suits in the Workplace about just such a case. When the supervisor of a Florida hospital worker suffered a stroke during a routine hernia operation and subsequently died, the employee began telling her coworkers that the stroke was a sign of God’s “wrath” and an indication of Divine judgment. The employee told coworkers that God’s vengeance was served and “victory is mine.” These statements, needless to say, caused a major disruption. Some employees were so upset, they were unable to perform their jobs. The employee was subsequently fired for her conduct. So, naturally, she sued the hospital for religious discrimination under Title VII.
The (Less-Than-Divine) Judgment
The district court granted summary judgment for the employer, finding that there was no pretext in the employer’s stated basis for termination, namely that the plaintiff was fired for openly celebrating the death of a coworker whom she despised. The fact that there was a religious element to the plaintiff’s celebrations did not protect them or her. The court specifically noted it was not the religious component of plaintiff’s comments that prompted the termination, but rather the inappropriate celebration of the supervisor’s demise. The article did not indicate whether the plaintiff called down thunderbolts on the judge’s head.
Accommodating Religious Belief
Setting aside the above employee’s belief in a deity who functions like Marlon Brando in The Godfather, employers do have to make some accommodations for religious beliefs. Attorney Allan W. Brown from Eckert Seamans Cherin & Mellott provides the following summary:
: Meet (more than once) with the employee to seek a resolution (and take notes!)
: Accommodate the employee’s observance of religious holidays, whenever possible
: Attempt to find a volunteer to swap shifts with an employee
: Attempt to transfer the employee to another job in the company, if necessary.
Spirituality and Work
Back in 1999, Business Week published an interesting article by Michelle Conlin on spiritual revivals based in the workplace. It’s still a timely summary of the way spirituality in its many forms can impact the workplace. Conlin points out that people are working more and more hours, so the workplace becomes host to activities that used to take place somewhere else.
Most companies and executives are careful to stick to a cross-denominational, hybrid message that’s often referred to as secular spirituality. It focuses on the pluralistic, moral messages common to all the great religions, such as plugging into something larger than yourself, respecting the interconnectedness of all actions and things, and practicing the Golden Rule. But it also puts a premium on free expression and eschews cramming beliefs down other people’s throats.
Religious belief can be a tricky area for management. It’s one thing to tolerate different beliefs. It’s quite another when those beliefs infringe on other employees and disrupt the flow of work. Even if you believe your deity to be a vengeful personal protector, it’s best to keep this comforting thought to yourself.

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Mandatory English at the workplace?

Tuesday, February 10th, 2004

As U.S. demographics continue to shift, one of the tough issues facing employers is an increase in the multilingual work force. Some employers mandate English-only in the workplace, but should they? Discrimination suits based on such policies are on the increase, yet employers defend the practice on the basis of business necessity, productivity, safety, and the like. The EEOC keeps a sharp eye out for potential violations of the Civil Rights Act, and fines can be steep. Employers certainly need to be aware of EEOC Speak English-only Rules.

Culling from several sources including his own personal experiences, George’s Employment Blawg has a thoughtful exploration of this complex topic that’s well worth a read – we won’t try to duplicate his excellent research here. Don’t miss his sensible recommendation and sample policy at the end of the post.

This issue of workers who have a limited command of English or for whom English isn’t the first or native language is of great interest to us in terms of safety and prevention. Non-English speaking workers are frequently at greater risk in the workplace than their English speaking colleagues. For example:

“The Bureau of Labor Statistics reports that 815 Hispanics were killed on the job in 2000, an 11.6 percent increase over the previous year. This double-digit increase stands in sharp contrast to the two percent decrease in workplace fatalities for all workers.
The death toll for Hispanic workers is even starker in the construction industry, which leads all industries in fatal accidents. In 2000, construction fatalities overall dropped three percent — the industry’s first decline since 1996. The number of Hispanics killed at construction sites, however, jumped 24 percent.”

What are some best practices in this area? We certainly don’t pretend to know them all, but we’ve seen a few over the years: native speakers hired as translators to help train and orient new workers; telephonic translation services; worker buddy or mentor programs; on-site English-as-second-language classes that focus on workplace issues.

Here are a few articles resources on the topic, and hopefully as we explore this issue further over time, we can bring you more.
OSHA: Listos para ayudarle – Ready to Help You
The Language of Safety

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