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  1. #1
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    Default Federal and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    The following LINKS provide information about "percieved impairments"/disability under Federal ADA and California State Laws, your rights to the "interactive process" and "reasonable accomdation" when released back to work, etc.

    If you are NOT in California, then you MUST google YOUR State, to find the applicable State anti-discrmination laws....

    When accesing each web-site, it is VERY important to access the links WITHIN the web-site that directs you to addition information! These websites are a WEALTH OF INFORMATION, and will provide you with a better understanding of YOUR RIGHTS if you have a "percieved impairment"/disability as defined by the ADA and DFEH (State law in CA), etc.

    MANY IW's are faced with problems from their Employer/Supervisor when released back to work with restrictions. SOME Employers will tell the IW that UNLESS they are "100%" able to perform their job, the can NOT return to work. OR, the Employer will tell the IW that because they are on "light duty" and/or NOT "100%", the IW will be TERMINATED.

    The ADA/DFEH and other States have LAWS to PROTECT ANY INDIVIDUAL, whether the "perceived impairment"/disability is Work-related or NOT!

    ALL IWs should READ AND LEARN ABOUT THEIR RIGHTS under FEDERAL AND STATE anti-discrimination laws!! Because there are STRICT TIME-FRAMES for filing potential discrimination complaints against an Employer, if you think that YOU are potentially being discriminated against by your Employer/Supervisor/co-workers, then you MUST consult with SEVERAL, EXPERIENCED Labor Law Attorneys, AND CONTACT your local EEOC/DFEH offices, AND, ANY and ALL FEDERAL and STATE AGENCIES that handle disability discrimination and labor law!!

    As with ANY law-suit, claim, etc, DOCUMENTATION IS CRITICAL!! IF you are being subjected to possible discrimination because you HAVE filed a WC claim, and/or BECAUSE you HAVE a "perceived impairment"/disability, then START A PRIVATE "DAILY JOURNAL".

    In your Daily Journal, DOCUMENT, the Date, time, location, name of ANY party at work making disparaging statements about your injury/impairment/work-restrictions/job performance, negative CONDUCT towards you, etc., and NAMES OF WITNESSES...

    SAVE ANY AND ALL letters, "memos", nasty of negative notes left on your desk regarding your attendance, performance, productivity, etc, copies of performance evaluations, etc, messages left on your work phone/home phone answering machine and so forth, from your Supervisor, HR, or ANYONE from work! Keep your "DAILY DIARY" in a SAFE PLACE, AWAY form "prying eyes", and do NOT DISCUSS either your WC claim OR YOUR THOUGHTS about possibley being discriminated against with ANY ONE AT WORK...

    UNLESS, problems with your wrok-restrictions are relevant. ADVISE ONLY your supervisor or HR, so that they can try to work out any conflict that you may have with the PARTIES INVOLVED. In other words, "keep your nose clean"

    If it DOES become necessary to involve a Labor Law Attorney and/or the EEOC and other relevant agencies, you will have DOCUMENTATION and the information that is NECESSARY in order for your comploaint to be INVESTIGATED....

    Here are the LINKS:

    FEDERAL ADA LAW: Applies to EVERYONE, not matter WHAT State you reside in...

    http://www.jan.wvu.edu/Erguide/Three.htm


    It is important that you read the entire web-site, and access the links WITHIN the web-site that direct you to additional information.

    For example, this link discusses "perceived impairment":

    2.2(c) Regarded as Substantially Limited
    This part of the definition protects people who are not substantially limited in a major life activity from discriminatory actions taken because they are perceived to have such a limitation. Such protection is necessary, because, as the Supreme Court has stated and the Congress has reiterated, "society's myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments."

    The legislative history of the ADA indicates that Congress intended this part of the definition to protect people from a range of discriminatory actions based on "myths, fears and stereotypes" about disability, which occur even when a person does not have a substantially limiting impairment.

    An individual may be protected under this part of the definition in three circumstances:

    1. The individual may have an impairment which is not substantially limiting, but is treated by the employer as having such an impairment.

    For example: An employee has controlled high blood pressure which does not substantially limit his work activities. If an employer reassigns the individual to a less strenuous job because of unsubstantiated fear that the person would suffer a heart attack if he continues in the present job, the employer has "regarded" this person as disabled.

    2. The individual has an impairment that is substantially limiting because of attitudes of others toward the condition.

    For example: An experienced assistant manager of a convenience store who had a prominent facial scar was passed over for promotion to store manager. The owner promoted a less experienced part-time clerk, because he believed that customers and vendors would not want to look at this person. The employer discriminated against her on the basis of disability, because he perceived and treated her as a person with a substantial limitation.

    3. The individual may have no impairment at all, but is regarded by an employer as having a substantially limiting impairment.

    For example: An employer discharged an employee based on a rumor that the individual had HIV disease. This person did not have any impairment, but was treated as though she had a substantially limiting impairment.

    This part of the definition protects people who are "perceived" as having disabilities from employment decisions based on stereotypes, fears, or misconceptions about disability. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers' compensation costs or acceptance by co-workers and customers.

    Accordingly, if an employer makes an adverse employment decision based on unsubstantiated beliefs or fears that a person's perceived disability will cause problems in areas such as those listed above, and cannot show a legitimate, nondiscriminatory reason for the action, that action would be discriminatory under this part of the definition. [emphasis added]



    FOR CALIFORNIA RESIDENTS ONLY:
    http://www.jan.wvu.edu/Erguide/Three.htm

    http://www.rjop.com/publish29.html#1a

    Here is an example of WHAT the "interactive process" entails:

    2. Statutory Requirement To Engage in Timely, Good Faith, Interactive Process

    Prior to the passage of AB 2222, employers were required under the FEHA to make a reasonable accommodation for the known physical or mental disability of an applicant or employee, unless that accommodation produced undue hardship to the employer's operation. AB 2222 adds an additional statutory obligation for employers - - namely, to engage in a timely, good faith, interactive process with employees to determine effective reasonable accommodations, if any, when an applicant or employee with a known physical or mental disability or medical condition requests one. What does this mean to employers?

    It is now an unlawful employment practice for a California employer to fail to engage in this interactive process. Once the employer has notice that an employee is claiming a disability (even before a disability determination has been made), the employer must engage in a dialogue in a timely manner with the employee to determine what kind of a reasonable accommodation can be made. As evidence of compliance with the law, the employer should document this "interactive process" in writing. [emphasis added]


    By READING and LEARNING ABOUT THE ADA LAWS other STATE LAWS THAT APPLY REGARDING DISABILITY DISCRIMINATION, you will KNOW WHAT your RIGHTS REALLY ARE, what the EMPLOYER IS REQUIRED by LAW TO DO or NOT DO, and NOT just what your EMPLOYERS "SAYS" they are; and IF your Employer IS potentially VIOLATING YOUR RIGHTS UNDER ADA/Applicable STATE LAWS, and WHAT RECOURSE YOU MAY HAVE...

    FEEL FREE to add any ADDITITIONAL information and Links to other web-sites to this thread!

    If you find OTHER State laws, please be so kind as to SPECIFY WHAT State law you are providing information for! Thank you~
    Last edited by Charles Stevens; 07-25-2008 at 08:42 AM.

  2. #2
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    Default Re: Ada/state Anti-discrimination Laws,rtw & Reasonable Accomodation

    The following is the TEXAS STATE LINK for STATE DISABILITY LAWS:

    http://www.governor.state.tx.us/disa...aws/employment

  3. #3
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    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    Here is an EXCELLENT link that explains ALABAMA STATE and ADA laws, and what an Employee should DO if they feel their Employer has discriminated based upon a perceived impairment/disability:


    For ALABAMA RESIDENTS ONLY:

    http://library.findlaw.com/2000/Nov/1/128104.html

    Employment Discrimination in Alabama


    By Stewart & Hicks, P.C.

    "Federal law prohibits employment discrimination because of race, color, national origin, legal alienage, sex, pregnancy, religion, age, disability and union activity. While most state laws protect workers on the same grounds as federal law, Alabama law provides little protection for workers against discrimination.

    Employment discrimination laws generally protect not only present employees, but also former employees and some people, like applicants for jobs, who never have been employees. Some of the federal anti-discrimination laws are:

    42 U.S.C. section 1981, a federal law that was originally passed after the Civil War, prohibits race discrimination in all contracts, which not only includes employment but also all other types of contracts as well.
    The Americans with Disabilities Act (ADA) prohibits disability discrimination in public services and accommodations.
    Title VII of the federal Civil Rights Act of 1964 prohibits employment discrimination because of race, color, sex, religion or national origin. This law applies to public employers and private employers with at least 15 employees, employment agencies, apprenticeship programs and unions. 42 U.S.C. section 1981 prohibits all race discrimination in all contracts, even between individuals.
    The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination because a worker is age 40 or older. The coverage of the ADEA is similar to Title VII except that a private employer needs 20 employees to be covered.
    The Immigration Reform and Control Act of 1986 (IRCA) protects an alien who is "lawfully admitted for permanent residence" from employment discrimination because she is an alien.
    The Americans with Disabilities Act (ADA) prohibits employment discrimination against employees with disabilities.
    The National Labor Relations Act (NLRA), which is enforced by the National Labor Relations Board rather than the courts, protects employees from discrimination by their employers because they have engaged in union activity.

    Making a Claim

    Anti-discrimination law in Alabama is generally based on federal statutes, with limited causes of action from state and common law, depending on the particular facts and circumstances of the case.

    In order to make a claim under most of the federal statutes, it is necessary to file a signed written complaint or charge of discrimination with an administrative agency of the government. Generally, a person claiming employment discrimination that violates Title VII, the ADEA, or the ADA must file a complaint with the federal Equal Employment Opportunity Commission (EEOC) within 180 days after the discrimination occurs.

    A claim of discrimination because of union activity must be filed with the National Labor Relations Board within six months of the discharge because of union activity. While there are some exceptions, the failure to file a complaint in time will mean that the discrimination cannot be challenged.

    Enforcement Actions

    While the NLRB alone enforces charges of union discrimination and the EEOC can start court actions to enforce Title VII, the ADEA, and the ADA, most times the person claiming the discrimination must bring an action in court to enforce the law. Once a person receives a determination by the EEOC on their claim, they have only 90 days to start a court action to enforce it. Enforcement actions can be brought in either state or federal court.

    Proof of Discrimination

    Most discrimination cases require that the employee prove that the employer acted with the intent to discriminate.

    A statement by the boss such as, "I am refusing to promote you because you are a woman," is one kind of evidence that the employer discriminated intentionally because of sex.

    Other evidence, such as proof that the person who won the promotion was less qualified than you, can also be used as long as it is sufficient to persuade a jury that the employer acted with intent to discriminate.
    Title VII and the ADEA provide narrow defenses to claims of intentional discrimination where the employer can prove that national origin, religion, sex, or age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer's particular business. There is no BFOQ defense to claims of race, color, or disability discrimination.

    Title VII also prohibits disparate impact discrimination. Disparate impact discrimination occurs when an employer has a policy that in operation works to the greater disadvantage to minority group members or women than to everyone else. Even if the employer does not intend to discriminate when it uses such a policy, the employer violates the law where the policy is not related to the job the employees are to perform and is not necessary to the employer's business.

    For example, a policy requiring that employees be a certain height and weight. Such a policy excludes more women than men, more Latinos than others. So, the employer can only continue to use the policy if it can prove that the height and weight requirements are related to the jobs employees perform and are necessary to its business.

    Legal Remedies

    The remedies for discrimination include what the law calls equitable as well as legal remedies. Equitable remedies include:

    lost back pay
    an order that the employee be reinstated
    an order to the employer to stop discriminating.
    Since the Civil Rights Act of 1991, the federal statutes prohibiting discrimination now provide for a jury trial for claims of intentional discrimination and also provide legal remedies to compensate for the pain and suffering the victims of discrimination have suffered and punitive damages to punish particularly egregious discriminators. Compensatory and punitive damages are subject to caps depending on the size of the employer and cannot exceed $300,000. While the victims of age discrimination cannot get punitive damages, the ADEA does provide for double damages when the employer's action is found to be willful. ".....

    If any Alabama IW thinks that they are being discriminated against, they MUST CONSULT WITH SEVERAL EXPERIENCED LABOR LAW ATTORNEYS, THEIR WC ATTORNEY, AND CALL THEIR LOCAL EEOC OFFICE IMMEDIATELY.

  4. #4
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    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    FEDERAL EEOC POLICIES AND PROCEDURES FOR THE INTERACTIVE PROCESS AND REASONABLE ACCOMODATION PURSUANT TO THE ADA


    IT IS IMPORTANT TO READ ALL THE LINKS PROVIDED, SO THAT YOU HAVE A BETTER UNDERSTANDING OF THE EMPLOYER'S LEGAL OBLIGATIONS UNDER ADA, AS WELL AS THE ENTIRE PROCESS AND PROCEDURES!!!!!

    http://www.eeoc.gov/policy/docs/acco...ures_eeoc.html

    Although this EEOC link explains THEIR policies and prodedures with THEIR EEOC employees, it gives a VERY GOOD PERSPECTIVE of the "INTENT" of the ADA, HOW the interactive process and reasonable accomodation SHOULD BE UTILIZED BY ANY EMPLOYER!!!!

  5. #5
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    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    Thanks Charles. You always have great information! I have actually read up on the info and found a link with in the JAN site regarding people with fibromyalgia!!!

  6. #6
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    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    This article talks about people who have fibromyalgia and how the syndrome relates to the ADA. It's got excellent information about who is covered under ADA, what makes you qualified, how to tell your employer that you are "ill" and what to say about needed accommodations,and it gives you good examples! It was a great article!

    http://www.fmpartnership.org/ada.htm

    I hope this helps someone in need!

  7. #7
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    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    Here are the relevant links pusuant to EEOC Law concerning WHAT an EMPLOYER can ASK a JOB APPLICANT, as well as "reasonable accomodation" issues. I have provided an EXCERPT for easy reference, BUT, you MUST READ THE ENTIRE LINK:http://www.eeoc.gov/policy/docs/preemp.html

    "The Statutory and Regulatory Framework

    Under the law, an employer may not ask disability-related
    questions and may not conduct medical examinations until after it
    makes a conditional job offer to the applicant.
    3 This helps
    ensure that an applicant's possible hidden disability (including a
    prior history of a disability) is not considered before the
    employer evaluates an applicant's non-medical qualifications. An
    employer may not ask disability-related questions or require a
    medical examination pre-offer even if it intends to look at the
    answers or results only at the post-offer stage.


    Although employers may not ask disability-related questions or
    require medical examinations at the pre-offer stage, they may do a
    wide variety of things to evaluate whether an applicant is
    qualified for the job, including the following:

    * Employers may ask about an applicant's ability to perform
    specific job functions. For example, an employer may state the
    physical requirements of a job (such as the ability to lift a
    certain amount of weight, or the ability to climb ladders), and
    ask if an applicant can satisfy these requirements.

    * Employers may ask about an applicant's non-medical
    qualifications and skills, such as the applicant's education, work
    history, and required certifications and licenses.

    * Employers may ask applicants to describe or demonstrate how they
    would perform job tasks.

    Once a conditional job offer is made, the employer may ask
    disability-related questions and require medical examinations as
    long as this is done for all entering employees in that job
    category.
    If the employer rejects the applicant after a
    disability-related question or medical examination, investigators
    will closely scrutinize whether the rejection was based on the
    results of that question or examination.

    If the question or examination screens out an individual because
    of a disability, the employer must demonstrate that the reason for
    the rejection is "job-related and consistent with business
    necessity."4



    In addition, if the individual is screened out for safety reasons,
    the employer must demonstrate that the individual poses a "direct
    threat." This means that the individual poses a significant risk
    of substantial harm to him/herself or others, and that the risk
    cannot be reduced below the direct threat level through reasonable
    accommodation.5


    Medical information must be kept confidential.6 The ADA contains
    narrow exceptions for disclosing specific, limited information to
    supervisors and managers, first aid and safety personnel, and
    government officials investigating compliance with the ADA.
    Employers may also disclose medical information to state workers'
    compensation offices, state second injury funds, or workers'
    compensation insurance carriers in accordance with state workers'
    compensation laws7 and may use the medical information for
    insurance purposes.8

    The Pre-Offer Stage

    What is a Disability-Related Question?


    Definition: "Disability-Related Question" means a question that is
    likely to elicit information about a disability.


    At the pre-offer stage, an employer cannot ask questions that are
    likely to elicit information about a disability. This includes
    directly asking whether an applicant has a particular disability.
    It also means that an employer cannot ask questions that are
    closely related to disability.9


    On the other hand, if there are many possible answers to a
    question and only some of those answers would contain disability-
    related information, that question is not "disability-related."10

    Below are some commonly asked questions about this area of the
    law.

    * May an employer ask whether an applicant can perform the job?

    Yes. An employer may ask whether applicants can perform any or
    all job functions, including whether applicants can perform job
    functions "with or without reasonable accommodation."11


    * May an employer ask applicants to describe or demonstrate how
    they would perform the job (including any needed reasonable
    accommodations)?

    Yes. An employer may ask applicants to describe how they would
    perform any or all job functions, as long as all applicants in the
    job category are asked to do this.


    Employers should remember that, if an applicant says that s/he
    will need a reasonable accommodation to do a job demonstration,
    the employer must either:

    * provide a reasonable accommodation that does not create an undue
    hardship; or

    * allow the applicant to simply describe how s/he would perform
    the job function.


    * May an employer ask a particular applicant to describe or
    demonstrate how s/he would perform the job, if other applicants
    aren't asked to do this?

    When an employer could reasonably believe that an applicant will
    not be able to perform a job function because of a known
    disability, the employer may ask that particular applicant to
    describe or demonstrate how s/he would perform the function. An
    applicant's disability would be a "known disability" either
    because it is obvious (for example, the applicant uses a
    wheelchair), or because the applicant has voluntarily disclosed
    that s/he has a hidden disability.


    * May an employer ask applicants whether they will need reasonable
    accommodation for the hiring process?

    Yes. An employer may tell applicants what the hiring process
    involves (for example, an interview, timed written test, or job
    demonstration), and may ask applicants whether they will need a
    reasonable accommodation for this process.


    * May an employer ask an applicant for documentation of his/her
    disability when the applicant requests reasonable accommodation
    for the hiring process?

    Yes. If the need for accommodation is not obvious, an employer
    may ask an applicant for reasonable documentation about his/her
    disability if the applicant requests reasonable accommodation for
    the hiring process (such as a request for the employer to reformat
    an examination, or a request for an accommodation in connection
    with a job demonstration). The employer is entitled to know that
    the applicant has a covered disability and that s/he needs an
    accommodation.

    So, the applicant may be required to provide documentation from an
    appropriate professional, such as a doctor or a rehabilitation
    counselor, concerning the applicant's disability and functional
    limitations.


    * May an employer ask applicants whether they will need reasonable
    accommodation to perform the functions of the job?


    In general, an employer may not ask questions on an application or
    in an interview about whether an applicant will need reasonable
    accommodation for a job. This is because these questions are
    likely to elicit whether the applicant has a disability
    (generally, only people who have disabilities will need reasonable
    accommodations).


    Example: An employment application may not ask, "Do you need
    reasonable accommodation to perform this job?"

    Example: An employment application may not ask, "Can you do these
    functions with ___ without ___ reasonable accommodation? (Check
    One)"

    Example: An applicant with no known disability is being
    interviewed for a job. He has not asked for any reasonable
    accommodation, either for the application process or for the job.
    The employer may not ask him, "Will you need reasonable
    accommodation to perform this job?"

    However, when an employer could reasonably believe that an
    applicant will need reasonable accommodation to perform the
    functions of the job, the employer may ask that applicant certain
    limited questions.
    Specifically, the employer may ask whether
    s/he needs reasonable accommodation and what type of reasonable
    accommodation would be needed to perform the functions of the
    job.12 The employer could ask these questions if:

    * the employer reasonably believes the applicant will need
    reasonable accommodation because of an obvious disability;

    * the employer reasonably believes the applicant will need
    reasonable accommodation because of a hidden disability that the
    applicant has voluntarily disclosed to the employer; or

    * an applicant has voluntarily disclosed to the employer that s/he
    needs reasonable accommodation to perform the job.

    Example: An individual with diabetes applying for a receptionist
    position voluntarily discloses that she will need periodic breaks
    to take medication. The employer may ask the applicant questions
    about the reasonable accommodation such as how often she will need
    breaks, and how long the breaks must be. Of course, the employer
    may not ask any questions about the underlying physical condition....."

    THERE IS MUCH MORE VALUABLE INFORMATION ON THIS LINK, and other LINKS WITHIN THIS WEB-SITE!!!

  8. #8
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    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    Re: CONNECTICUT STATE DISABILITY LAWS

    Here are links to interesting articles and information relating to Connecticut State Disability Discrimination:

    http://www.jacksonlewis.com/legalupd...le.cfm?aid=747

    This article is from 2005, and some of the laws may have been changed since then. You should search this link to see if you can find any updated info. However, it is interesting, and informative, and provide information as to OTHER Resources and State Commissions in Connecticut handling disability discrimination to contact....


    Federal and State Courts Examine Connecticut Disability Discrimination Law
    Posted: March 16, 2005
    Page Tools:
    Register for Email Alerts
    For More Information Contact:
    Michael J. Soltis
    Related Practice Areas:
    Disability, Leave and Health Management

    When is a chronic medical condition a physical disability under the Connecticut Fair Employment Practices Act? It depends on what "chronic" means. The United States Court of Appeals for the Second Circuit (which covers Connecticut) recently asked the Connecticut Supreme Court to answer three questions regarding the meaning of "chronic" so that it could decide a pending disability discrimination case: (1) what is the correct interpretation of "chronic" disabilities under the CFEPA; (2) when, in relation to the act of discrimination, must a disability be "chronic" to enable the complainant to recover under the CFEPA; and (3) if the disability must be "chronic" at the time of the alleged act of discrimination, is evidence of the progression of an illness or injury after the alleged act of discrimination probative of whether that disability was "chronic" when the alleged discrimination occurred? Caruso v. Siemens Business Communication Systems, Inc., 392 F.3d 66 (2nd Cir. 2004).

    The CFEPA defines "physical disability" as "any chronic physical handicap, infirmity or impairment . . . including, but not limited to, epilepsy, deafness or hearing impairment, or reliance on a wheelchair or other remedial appliance or device." However, the statute does not define "chronic," and the case law defining the term is scant. In its request to the state supreme court, the Second Circuit observed that "no Connecticut court has ever provided an authoritative answer" to the above issues.

    Bad Luck and Bad Timing
    The case arose in January 1997, when a customer engineer tripped over debris at a worksite, injured his knee and ankle, and subsequently filed a claim for workers' compensation benefits. The employee missed three weeks of work due to the injury and worked a part-time schedule for two months. In August of that year, the employer asked the employee to take a functional capacity examination to determine whether his knee injury continued to impair his on-the-job performance. As luck would have it, the employee injured his back during the examination and missed several additional days of work.

    In September 1997, the employer decided to reduce its workforce and directed its managers to assess their employees and to rank them for selection for layoff. Also that month, the employee was asked to submit a medical release certifying that his injuries did not pose any threat of continuing physical restrictions. The employee provided a doctor's note clearing him for work on a full time basis, with lifting, stair climbing, bending and squatting restrictions.

    In October 1997, the managers submitted their rankings, and the employee was the fourth-lowest ranked customer engineer, making him the fourth in line for layoff. Three weeks later, the employer decided to layoff the four lowest-ranked customer engineers, including the employee. The layoffs were to be effective in later November, however, earlier that same month, the employee suffered an acute flare-up of a hernia, required emergency surgery, and went on medical leave. When the employee returned to work in December, he was informed of his layoff.

    Sorting Through the Ruins
    The employee sued the employer alleging discrimination based on his disability in violation of the Americans with Disabilities Act and the CFEPA. Ruling the employee was not "disabled" under the ADA or the CFEPA, the U. S. District Court granted the employer summary judgment. When the employee appealed that decision, the U. S. Court of Appeals for the Second Circuit reversed and held that the District Court incorrectly had analyzed the meaning of "disability" under the CFEPA. The District Court had equated a "chronic disability" under the CFEPA with a permanent medical condition under the ADA and thus impermissibly narrowed the CFEPA's scope.

    After getting the case back from the appeals court and reconsidering its analysis, the District Court again granted summary judgment to the employer and held the employee was not "physically disabled" under the CFEPA. The District Court also held the employee's "actual time of termination" December 15, 1997 "[was] not the relevant date." Rather, the relevant date was October 2, 1997, the date when the employee's supervisor ranked him as the fourth-lowest customer engineer. The District Court refused to consider any evidence of the employee's condition after the date of the ranking.

    When the employee again appealed, the Second Circuit determined it should not interpret the CFEPA without guidance from the Connecticut Supreme Court. However, in contrast to the District Court, the Second Circuit also found the relevant termination date was October 26, the date on which the supervisor decided to lay off four customer engineers, rather than October 2, the date on which the employee ranked the customer engineers.

    For Connecticut Employers, Much Needed Guidance
    The Connecticut Supreme Court's ruling should provide much needed guidance to employers regarding whether an individual is "physically disabled" under the CFEPA. An equally important issue is whether post-termination medical developments may be used to establish that an individual is "physically disabled." Since an employer has no way of predicting the course of an individual's medical condition, allowing evidence of such post-termination developments would be particularly challenging for employers. We will keep you updated on this case.

    Battle Over "Regarded As Disabled" Cause of Action Moves to State Court

    The legal battle over whether the CFEPA recognizes a cause of action for "perceived disability" continues, albeit in a different forum. In 2003, the U. S. Court of Appeals for the Second Circuit held the CFEPA does not create a claim for "perceived disability" discrimination if the employee is not actually disabled at the time of the adverse employment action. The definition of a "disability" under the CFEPA is not coextensive with that under the ADA, reasoned the court. The CFEPA's definition of "physical disability" does not include an individual "regarded as having" a chronic physical handicap, infirmity or impairment, as does the ADA. While the Second Circuit's decision is persuasive authority, it is not binding on the Connecticut state courts. Beason v. United Tech. Corp., 337 F.3d 271 (2nd Cir. 2003)

    One of the first Connecticut cases to address perceived disability claims after the Beason decision is Mills v. Remax Heritage, a case that has been filed in the Superior Court, Judicial District of Stamford/Norwalk at Stamford (Docket No. CV-03- 0193581-S). In this case, the employee alleged she was unlawfully terminated the day after she told her employer she needed a breast biopsy. She claimed the employer regarded her as "physically disabled" under the CFEPA. The Connecticut Human Rights and Opportunities Commission intervened on the employee's behalf and has argued that the court decided the Beason case wrongly. The CHRO is urging that the state court not follow the Beason decision but should recognize a cause of action for perceived disability under the CFEPA. The parties to the case have briefed and argued the issues to the court, and a decision is expected this spring. [emphasis added]

    Connecticut IWs should research the status of the State disability discrmination undecided cases referred to in this older article!
    http://www.elinfonet.com/starticles/7/8

    http://www.ct.gov/dob/lib/dob/legal_.../title_46a.doc

    http://grotonlaw.com/employment/employment.htm This site is EXCELLENT! Although it is prepared by a Labor Law Firm, there is a LOT OF INFORMATION ABOUT CONNECTICUT STATE EMPLOYMENT LAW, INCLUDING DISABILITY DISCRIMINATION! A "MUST READ" !

    http://www.accessmylibrary.com/coms2/browse_JJ_F104 FREE ACCESS to Fair Employment laws and cases
    http://www.cga.ct.gov/2005/pub/Chap8...#Sec46a-60.htm

    http://www.das.state.ct.us/Digest/Di...,Comm%20on.htm

  9. #9
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    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation


  10. #10
    Join Date
    Dec 2006
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    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    .SH, I took the liberty of copying the following excerpt from the link you so kindly provided, so that IW's could readily see that there IS RECOURSE AGAINST THEIR ER when told that can NOT RETURN TO WORK on "light duty" or unless they are "100% fit"....it will be VERY INTERESTING to see how the Ferderal Court Rules in this UPS class-action law suit, but if the Court is anything like the Courts here in California, the BIG DOWNFALL for UPS will be if they FAILED TO ENGAGE IN THE INTERACTIVE PROCESS PUSUANT TO THE ADA in ALL RESPECTS, which is the CORNERSTONE of the ADA Law:
    --------
    "COLCHESTER, Conn., July 17, 2007 -- United Parcel Service (UPS) (NYSE:UPS), the world's largest package delivery company, found itself on the losing end of a landmark court decision yesterday. Federal Judge Joy Flowers Conti, of the Western District of Pennsylvania, in a carefully reasoned opinion in the action entitled Hohider, et al. v. UPS, approved the certification of a nationwide class of UPS present and former employees, dating back to May 2000, who were precluded from returning to work due to medical reasons because of alleged across-the-board policies and practices of UPS that violate the Americans with Disabilities Act. The decision will affect thousands of capable employees.

    ``Judge Conti's decision resolves the magnitude of this important litigation,'' said lead attorney David R. Scott of Scott+Scott LLP. ``Only a class action can equalize the playing field between industry giants like UPS and hard-working employees.''

    The decision affects UPS workers at locations all over the country who were told they could not return to work anywhere at UPS unless they could present a doctor's note saying they were ``100% healed'' or had no work restrictions, or who otherwise tried to return to work at UPS after a medical leave of absence.

    The suit is being handled by leading nationwide class-action firm Scott+Scott LLP with the assistance of employment discrimination counsel Wienand & Bagin of Pittsburgh, PA, and the Equal Justice Foundation of Columbus, OH.

    According to attorney Christian Bagin, ``Many UPS employees -- like a lot of workers across the country -- don't know about the ADA and its protections -- though the effects of the statute's violation on their lives is severe.'' ..... [emphasis added]

    -----------------

    As has been stated many times here on this Forum, "KNOWLEDGE IS POWER", and it is IMPERATIVE that ALL IWs READ AND START TO LEARN ABOUT THEIR RIGHTS under EEOC/ADA LAWS!!!!!

    There are MANY VERY INFORMATIVE LINKS on this thread for IWs, and again, I would [I]STRONGLY ENCOURAGE ALL IWs to take a little time to read them![/I]

    THere are MANY Employers who either are VERY IGNORANT about THEIR LEGAL DUTY AND RESPONSIBILITIES TOWARDS THEIR EMPLOYEES, or, who UNFORTUNATELY, BLATANTLY IGNORE the EEOC/ADA LAWS, BECAUSE THEY KNOW THAT MOST OF THEIR EMPLOYEES HAVE NO IDEA WHAT THEIR RIGHTS ARE..... the Employer can therefore GET AWAY WITH VIOLATING THE RIGHTS OF THEIR EMPLOYEES WHO, because of their "PERCIEVED IMPAIRMENT"/DISABILITY, ARE USUALLY THE MOST VULNERABLE, and LEAST CAPABLE OF DEFENDING THEIR RIGHTS UNDER EEOC/ADA ANTI-DISCRIMINATION LAWS!!!!!!
    Last edited by Charles Stevens; 09-09-2008 at 11:28 AM.

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