5 Disabilities that May Be Protected By Employment Law

Disability discrimination is where an employer refuses to acknowledge your impairment as a disability and treats you adversely based on your disability.

The type of company you work for, the number of coworkers you have, your type of disability, and the nature of your claim, will factor into which legislation may assist you in protecting your job. As legislation at the State, as well as Federal level, progressively, recognize certain impairments as a type of disability, the more employees with these disabilities are given job protection.

Did you know that employees with a disability have numerous rights?  Not only do these particular employees have rights, but also there are a set of rules that the employer must comply with in terms of accommodating the employee’s disability.  But what exactly is considered as a disability in the eyes of the law?  Is ADD considered a disability?  What about being an addict?  Or what about some conditions that are not indefinitely a physical or a mental disability such as chronic fatigue?  Is an employee with a sexual dysfunction protected under employment law?

1. Cosmetic Disfiguration?

An employee who has a cosmetic disfiguration may be categorized as having a disability. One particular piece of legislation identifies certain individuals as having a disability if he or she has an existing impairment. An existing impairment pertains to physical and/or mental deficiency that immensely restricts the individual from primary life activities. A cosmetic disfiguration would fall under the physical category.  So if an employee has a cosmetic disfiguration that limits their ability to perform life activities but can carry out their duties at work or can carry them out with reasonable accommodation, an employer must provide those adjustments.  Should an employer refuse to make reasonable adjustments for the employee, or fires the employee because they request the adjustments, that employee may have a claim for disability discrimination as well as wrongful termination.

2. Alcoholism? 

If your boss fires you based on the fact that you were an alcoholic or you are currently in recovery, you may have a claim for wrongful termination and disability discrimination.

Alcohol abuse is an addiction that many Americans struggle with today.  What seems to perpetuate the problem is when former addicts try to put their lives back together but can’t seem to live down their old habits.  An employer who treats an employee adversely based on the fact that he or she is a former alcoholic may be liable for discrimination.  For instance, if an employee suffers from particular health issues or a disability that was created by a prior addiction to alcohol, the employer must accommodate the employee within reason.  Some factors may be taken into consideration such as if the employee has been or is currently participating in a rehabilitation program or is attending a rehabilitation program and has not consumed any alcohol or drugs for a substantial amount of time.   Also, if an employee needs to take time off to receive medical treatment from a rehabilitation facility, the employer may not be able to terminate the employee for taking that time off.  For example, if an employee disclosed to their boss that he or she needed to take a period of time off to participate in drug rehabilitation, the employer might be liable if they fire the employee based on taking the time off.

The circumstances of this particular issue are crucial in determining whether or not an employer has discriminated against an employee.  It is essential to keep in mind that an employee is not automatically protected from being fired just because he or she was a former addict or that he or she has enrolled in a particular drug-treatment center.  An employee must show that he or she has been free from use for an extensive amount of time as well as the reason for mistreatment was based on the fact that he or she either was an addict and/or requested time off for treatment.

3. Sexual Dysfunction?

Under the particular legislation, in order to be considered as an employee who has a disability, it must be shown that he or she has an actual physical impairment. Remember that it may be essential to establish that the employee’s condition is debilitating in such a way that it may restrict them from a major life activity.

While it has not been ligated many times, sexual interactions may be characterized as a major life activity, thus a sexual dysfunction may be measured as a disability.  If the sexual dysfunction arises from an employee’s poor mental health, this may provide evidence to support he or she indeed has a legally recognized disability.

4. Obesity?

Whether or not obesity is considered a legally recognized impairment is an ongoing debate, but it is not totally ruled out. Factors to be taken into consideration would be what body of law the claim would fall under, possibly the cause of obesity, and the percentage of access weight in comparison to the average weight.  There have been some cases that did consider obesity to be impairing where cardiovascular issues were the source of obesity. But again, depending on the particulars of an employee’s case, obesity may be considered a protected disability in which an employee would be considered a victim of discrimination should he or she be terminated because of their diagnosis.

5. Mental impairments?

As mentioned previously, there is specific legislation in place that recognizes certain physical and mental impairments as a disability.  There is a variation of mental impairments that are recognized such as learning disabilities like dyslexia and attention deficit disorder.  Depression is also recognized in certain cases as well as obsessive-compulsive disorder.  There are also some conditions that may be recognized yet can neither be categorized as mental or physical such as chronic fatigue.

There are several mental impairments that may be acknowledged and protected under certain legislation; it mainly comes down to the individual’s circumstances and the facts of their case.  Again, in certain situations of mental impairment, the employer is obligated to make reasonable adjustments for an employee at the workplace.  Should an employee with a mental impairment find themselves being treated adversely based on their mental impairment, they may have a discrimination claim against their employer.

For more info please contact a wrongful termination lawyer same as Stevens & McMillan Employment Lawyers

More Articles about ADA and disability discrimination at the workplace:

• How The American Disability Act (ADA) has protected disabled workers?
• How ADA Can Protect Millions of American lives
• 4 Things an Employee Should Know About Filing a Disability Discrimination Claim
• 5 Important Questions Asked about Disability Discrimination and Wrongful Termination
• 5 Ways an Employer May Be Liable For Disability Discrimination
• 6 Nuances of Disability Discrimination Law in California
• 8 Things You Need To Know About Disability Discrimination
• 8 Main Disability Discrimination Questions
• 9 Things Job Hunters With a Disability Should Know

Retaliation is a type of practice that is deemed unlawful under employment laws.  An employee may experience retaliation when he or she makes a complaint about sexual harassment, discrimination, or some kind of illegal activity.  The way an employer may exercise retaliatory behavior is by punishing an employee for making the complaint.   Punishing an employee for making a complaint may be expressed through demotion, reduced pay, reduced work hours, removal from the work schedule, denial of employment benefits, reprimanding the employee for fictitious reasons, and termination.  Again, to retaliate against an employee after he or she makes a complaint, may result in legal proceedings being brought against the employer. If an employee does feel as though they have been retaliated against after making a complaint, he or she should contact a retaliation lawyer to discuss their potential claim against their employer. Below are a few situations where an employee may find themselves retaliated against.

1. You make a complaint about sexual harassment.

Although it is considered unlawful behavior, sexual harassment is the most common form of harassment in the workplace.  Sexual harassment can be exercised through comments, visuals, rumors, or physical contact.  According to the law, an employee has the right to report sexual harassment without any repercussions.  This means that an employee’s position at work is protected in the event that he or she makes a formal complaint regarding sexual harassment. For example, Nina worked for an advertising company.  Recently a new director was hired to oversee her department named Larry.  Soon after Larry was hired, he gave extra attention to Nina; attention that Nina did not welcome.  Often Larry would make comments about Nina’s breasts to other male employee’s, making jokes that Nina’s breasts were bigger than her brains.  Nina was afraid of Larry as he had cornered her in the copy room a few times and asked her if she would ever consider dating anyone in her department.  Most recently, Nina had asked if she could apply for a promotion and in reply, Larry asked “what do I get?” and winked.  Fed up and overwhelmed, Nina made a formal complaint to the head supervisor of the company.  A few days after Nina made the complaint, she was demoted and moved to a smaller office but still remained under the supervision of Larry and his tormenting.  Nina sent several emails to the head supervisor complaining of the continued harassment but each one went unanswered, Two weeks later Nina was let go from her job without reason.  Here, Nina may have been a victim of sexual harassment but was also then made a victim if retaliation after she spoke up.  The timeline follows that after Nina complained, she was demoted, placed in a smaller office and then let go.  These actions can all be construed as punishment for making the complaint about Larry sexually harassing her on multiple occasions. If Nina were to take her situation to an Employment Lawyer, she may have a claim against her former employer for sexual harassment, retaliation, and wrongful termination.

If an employee feels as though he or she is being sexually harassed he or she should make a formal complaint which entails details of who was the harasser, what occurred, when it took place, and list any witnesses.  It is required by law that employers have an anti-sexual harassment policy in place, so after an employee makes a complaint, there should be steps in place within the policy that should be followed.  An employee can make a complaint to a manager, supervisor, or Human Resources Department.  The complaint does not even need to be made to that particular employee’s direct supervisor or manager, it just needs to be made so that the next step in the policy can begin which is usually that all managers or supervisors are taking the formal complaint to their supervisor or directly to the Human Resources Department.

2. You take or request a leave of absence

Employees have the right under certain employment laws to take a leave of absence for particular reasons.  Some of those reasons may include a medical leave, disability leave, or a leave to care for an ill family member or for incidences regarding pregnancy.  If an employee requests to take an approved leave or actually takes an approved leave, an employer does not legally have the right to punish that employee for taking the leave.  For example, in some circumstances, an employer must reinstate an employee their job upon their return from their leave.  An employer who fires an employee or lets an employee go after he or she takes a leave or requests for a leave may be found liable for retaliation. An employee who takes a leave or requests a leave of absence and feels that they have been retaliated against for that very reason should call an Employment Lawyer.

3. You make a complaint about discrimination

There are employment laws which prohibit discrimination. Discrimination against an employee based on their age, race, religion, sexual orientation, creed, gender, sex, marital status, military status, veteran status, disability, medical condition, or pregnancy is prohibited by law.  Depending on the specific circumstances, if an employee were to complain about being discriminated against and they were treated adversely thereafter, he or she may have a claim in retaliation. An employee who was discriminated against and terminated for complaining about being discriminated against should call an Employment Lawyer.

4. You report something illegal

There are laws in place that protect certain employees who report illegal activity in the workplace. These types of employees who report such things as unsafe work conditions are called whistleblowers.  If a whistleblower reports illegal activity such as poor work conditions and is then fired, he or she may have a retaliation claim against their former employer.  A whistleblower who was terminated should call an Employment Lawyer to discuss their potential retaliation claim as well as wrongful termination.

Employees should not tolerate any kind of retaliation and should contact a wrongful termination attorney who offers free consultations.

While most whistleblower cases do not make headlines, some of them do because of the scope of wrongdoing found or the fame of the businesses or people involved. Whistleblower laws protecting people who report wrongdoing from retaliation are critical to ensuring that citizens concerned with truth and justice continue to come forward to expose unethical and illegal activity that harms the public. Here are some of the most famous whistleblowers who have effected positive change in the United States.

• Jeffrey Wigand
  Jeffrey Wigand was the Vice President of research and development at Brown & Williamson Tobacco Co., the nation’s third-largest tobacco company. Given his position, Wigand had important access to the production goals and scientific data of the company. He was fired subsequent to arguments with the CEO about tobacco ingredients. Then, on February 4, 1996, he appeared on the show 60 Minutes and declared that Brown & Williamson had intentionally changed its tobacco blend to make their cigarettes more addictive, which was shocking at the time and concurrent with top tobacco executives testifying to Congress that cigarettes were not addictive. Moreover, Wigand alleged that he was fired because of this knowledge. Unfortunately, he was only punished further after actually exposing Big Tobacco, as he had to contend with a smear campaign, unfounded lawsuits, and ensuing family troubles, not to mention death threats. Wigand is now credited with being the most important witness in successful tobacco reform lawsuits and his story was portrayed in the film The Insider. Since blowing the whistle (or, as he prefers to see it, telling the truth), Wigand has been trying to reduce the number of young people using tobacco through his non-profit, Smoke-Free Kids, and seems pleased with the positive influence he has had on so many people.
• Sherron Watkins and Cynthia Cooper
  Like Wigand, Sherron Watkins was a Vice President at a big company, Enron Corporation. She testified before the U.S. House of Representatives and the Senate regarding her ignored warnings to Enron’s CEO at the time, Kenneth Lay, about accounting inconsistencies in financial statements and ultimately exposed serious corporate misconduct.
  Similarly, Cynthia Cooper exposed significant corporate misconduct when she told the board of WorldCom that the company had covered up $3.8 billion in losses by falsifying the bookkeeping. Both Watkins and Cooper paved the way for corporate law reform, including several laws regulating large corporations and bolstering protections for corporate whistleblowers. In recognition of their efforts and impact, Time magazine named them People of the Year in 2002.
• Colleen Rowley
  Colleen Rowley was also awarded Person of the Year in 2002 for her actions exposing FBI mishandling of information regarding the 9/11 attacks. Rowley testified to the Senate about huge problems facing the FBI and the intelligence community in general. Specifically, she brought to light how mishandled information and failure to take action regarding a suspected terrorist may have left the U.S. vulnerable to the 9/11 attacks the year before. Her testimony led to a major reorganization in the FBI. Since then, she has permanently retired from the FBI after 24 years of service, has run for political office, and has spoken publicly about ethical decision-making in her writing and blogging.
• Mark Felt AKA “Deep Throat”
  Mark Felt, known for a long time as simply “Deep Throat” to maintain anonymity, was instrumental in unearthing the Watergate scandal that brought Nixon’s presidency crashing down. The scandal started when Felt was the Associate Director of the FBI with five men being arrested for breaking into the Democratic National Committee headquarters. Felt leaked classified information to Washington Post reporters Bob Woodward and Carl Bernstein that described how the Nixon Administration was involved and how they covered it up. This ultimately resulted in Nixon’s resignation. Felt’s identity remained secret for 30 years until his daughter convinced him to reveal his identity to the world when he was in his 90s. Felt published two memoirs, The FBI Pyramid and A G-Man’s Life. The FBI released his personnel file in 2012, several years after his death.
• Frank Serpico
  Frank Serpico is famous for exposing pervasive, systematic police corruption within the NYPD (and for being played by Al Pacino in the 1973 film Serpico). Initially, Serpico reported internally to police investigators, but then reported to the New York Times. Following that, the mayor ordered an investigation of police corruption, which ultimately led to huge changes within the NYPD. Not long after the news of corruption broke, Serpico was shot in the face under suspicious circumstances that led some to believe his colleagues wanted him dead. There was never a formal investigation, however. Serpico later spoke about people who seek truth and justice “even in the face of great personal risk,” calling them “lamp lighters” instead of whistleblowers. In 2017, he stood up for Colin Kaepernick, who was protesting a culture of police brutality, and said, “I am here to support anyone who has the courage to stand up against injustice and oppression anywhere in this country and the world.”
• Bunnatine “Bunny” Greenhouse
  Bunnatine “Bunny” Greenhouse was a chief contracting officer for the U.S. Army Corps of Engineers. She exposed fraud and abuse related to Kellogg Brown & Root’s self-dealing, as she strongly objected to the secret contract that would grant KBR a five-year no-bid contract, a no-competition contract as the invasion of Iraq was about to begin. Her objection was ignored, and later Greenhouse agreed to testify before the Senate about the corrupt contracting environment. Right before she did, the Army Corps warned her against it, but she was undeterred and went on to discuss the abuse relating to the Restore Iraqi Oil contract awards. This testimony led to legislation prohibiting such abuse and the Army declared they would not award any more “Sweetheart Contracts to KBR.” The Army Corps then retaliated against Greenhouse by removing her from her position and taking away her top-secret security clearance, as well as giving her unwarranted negative performance reviews and taking other adverse employment actions. Greenhouse hired a wrongful termination lawyer and filed a lawsuit alleging racial and gender discrimination in addition to unlawful retaliation and eventually, in 2011, settled for $970,000 to cover lost wages, compensatory damages, and attorney’s fees. She hopes for better protections for federal worker whistleblowers, saying that “integrity in government is not an option, but an obligation.”

Evidently, sometimes exposing unethical or illegal behavior can be met with significant challenges, but it can also have a big impact on the world. Employees who are not sure about their protection under the law should contact an employment attorney to discuss the details of their situation. Moreover, those who have been retaliated against for protected activity should talk to an employment lawyer to figure out how they can get restitution.

What is considered an invasion of privacy in the workplace?

People usually ask:

• Can I sue my employer for breach of privacy?
• What constitutes a violation of privacy?
• What can I do if my privacy is invaded at work?
• Do employees have a right to privacy in the workplace?
• What is the penalty for violating the Privacy Act?
• What is an example of a violation of privacy?

Unlike other states, California has a special protection of privacy written into its constitution, which says citizens have certain inalienable rights, including “pursuing and obtaining safety, happiness, and privacy.” Different statutes also provide specific privacy protections for California employees. For instance, employers cannot demote, suspend, or terminate employees for participating in conduct that is not illegal during off-duty hours (given that the behavior occurs away from the place of work). Employees have the right to sue employers for violating reasonable expectations of privacy, as measured by objective and widely accepted social norms.  This article describes a few of the ways in which employers are not allowed to invade the privacy of their employees. If you find that your legal rights in the workplace are being violated, it is a good idea to consult with an employment attorney, as the law can be complex and difficult to navigate for people who are not experts.

3 Examples of Invasions of Privacy in the Workplace:

• Drug testing in some cases
• The imposition of medical exams or questions about medical information
• Invasions of privacy related to social media

Let’s start from the top of the list:

1. Drug testing in some cases

Job applicants can be drug tested once they have received conditional offers, as long as they are all drug tested and it is not an issue of discrimination. For instance, an employer who only obliges African American applicants to take drug tests as a condition of employment would be in blatant violation of federal and state discrimination laws. For most jobs, random drug testing of current employees is typically considered unreasonable. Exceptions, of course, do exist and include employees who work in safety or security-sensitive roles. Employers who have reasonable suspicions about illicit drug use can do a drug test; it is random ones that are unannounced and not previously consented to that are most problematic. If you talk to a discrimination lawyer you will find out that Employers should have written policies about drug testing, which can be important to set employee expectations (recall that it is illegal for employers to violate their employees’ reasonable expectations of privacy).

2. The imposition of medical exams or questions about medical information

            Employers are not allowed to discriminate based on a medical condition or disability status. To this end, they generally cannot oblige employees to disclose the medications they are taking or to provide information about the internal state of their bodies. Generally speaking, employers cannot ask job applicants to reveal confidential medical information or to submit to medical examinations. However, once a job offer is made, an employer can make it conditional upon you passing a job-related medical examination (e.g. a fitness test for a firefighter that assesses specifically job-related duties). Of course, that means all entering employees in that kind of position must be required to do the same. One person cannot be singled out due to the employer’s belief that they have a disability, as that would be illegal discrimination. Additionally, even if a disability is revealed during such a medical exam, if the individual can perform the essential functions of the job with a reasonable accommodation (one that does not pose an undue hardship on the employer) then the employer cannot refuse to hire them. 

Moreover, medical records that an employer might have about employees for health insurance claims, workers’ compensation claims, or disability or medical leaves must be kept confidential. Your boss cannot go around telling all your coworkers that you have diabetes, for instance, if you only told your boss because you needed to take leave because of it and do not want that information shared with others. It is best for employers to keep medical documents separate from personnel files and kept in a secure location that only designated staff members can access.

A professional discrimination attorney can help you stop discriminating based on a medical condition or disability status

3. Invasions of privacy related to social media

            With the pervasiveness of social media in today’s world, it is likely no surprise that privacy concerns can be a huge issue for people who use it. Most employees do not want their bosses snooping on their social media accounts. Where else would they complain about their micromanaging and silly habits? To help address this issue, California enacted Labor Code Section 980 in 2013. Generally, it limits employers from accessing employee social media. The law bars employers from asking or demanding that an employee or job applicant do a few different things. For example, your boss cannot request or order that you tell them your username or password so they can access your personal social media.

Your boss also cannot require you to access your social media accounts in their presence (they don’t need to see that you complained about them twice last week!). Employers also cannot retaliate against an employee for refusing access to personal social media. However, employees who do not want their employers looking at their information online should ensure that their privacy settings hide their information from people whom they have not explicitly granted access to (e.g. Facebook friends).  

A related issue that comes up in the context of discrimination is employers using social media and having access to information that they are not legally permitted to use in the hiring process, like age/race/sex. Wittingly or unwittingly, people who make hiring decisions may discriminate against people based on membership in protected categories if they look up the social media profiles of applicants. Even if only your profile picture is available to the public, that can still tell employers your approximate age, gender, and race, which could bias their decisions. To avoid this problem, employers should employ a hiring system that erases the problem. For instance, a third party could be asked to look up the social media profiles of applicants and scrub all the details about things employers are not allowed to ask of applicants and then give only the relevant details to the person or people making hiring decisions.

            Do any of these situations sound familiar to you? If so, you may be a victim of a workplace privacy violation. If you think your reasonable expectations of privacy in the workplace have been violated or you have been wronged at work in some other way (e.g. discriminated against, sexually harassed, or retaliated against for protected activity), you may want to contact a labor attorney to see what you might be able to do about your situation.   

1.  Where do my rights come from?

When it comes to disability discrimination, there are a few different sources of rights an employee may use to defend himself or herself from mistreatment.  Depending on what type of employee and employer the scenario involves will determine what body of law to apply.  The Americans with Disabilities Act (ADA), the Rehabilitation Act, and the California Fair Employment and Housing Act (FEHA) are the sources of rights for employees with a disability.  Although all three are very similar, FEHA, unlike the other two Acts, is not a federal Act. This means it applies at a state level and is less likely to be interpreted via federal decisions.  The good thing about FEHA is that provides more protection for employees. 

2.  What legislation provides rights to me specifically? 

The answer is not straightforward and may depend on the facts of the particular case, but the Rehabilitation Act will apply to you if work for a federal agency, a federal contractor, or you receive federal financial support.  You may have rights under the ADA if you are one of more than 15 employees at your job.  However, for those employees at a smaller company, FEHA will protect an employee who is one of five or more employees. 

3.  Are employers required to take into account my disability when hiring?

Affirmative action is a particular type of hiring policy enforced by employers to afford equal opportunities to legally recognized minority groups.  Per the Rehabilitation Act, federal contractors are required to incorporate affirmative action in their hiring practices.  This means an employer must consider an employee’s disability when choosing a candidate to fill a position.  However, employers that fall under the ADA and FEHA are not required to apply affirmative action when hiring. For example, an employer would not be obligated to take into account the fact that an employee belonged to a minority group and hire them as a means of representing an underrepresented group. 

4.  Do I have a legally recognized disability?

  Not all conditions, illnesses, or impairments are identified as a “disability” under the law.  It can be frustrating for some employees of interviewees who are entitled to benefits from the government for their disability because this does not automatically deem he or she as an employee with a disability under the ADA.  An employee or interviewee would need to discuss with an employment lawyer as to whether he or she has a legally recognized disability by a particular Act. 

5.  Are my eyeglasses or contact lenses considered a disability?

  Usually, the law determines whether an employee’s disability is legally recognized which is measured by whether the disability impairs an individual’s ability to carry out a major life activity.  But what about if an employee or candidate has poor eyesight, is that considered as a disability? In most cases, an employee or candidate who has poor vision will only be considered as having a disability if the impairment cannot be corrected with prescription eyeglasses or contact lenses. 

6.  What if my disability requires an interpreter or reader?

  For some individuals who have been professionally diagnosed to have a disability may require a reader or an interpreter.  This may arise if an employee or candidate wears a hearing aid or has a processing deficit.  For instance, an employee may be able to carry out a job but on occasion may need someone to read him or her certain paperwork during an annual training seminar or for a person who is undergoing a test in an interview for a position.  Depending on what legislation is relevant to the particular employee or candidate will determine whether the employer is obligated to provide this kind of accommodation.  If an employer is required to provide this type of accommodation to an employee and in which cases refuses, that employer could be liable for disability discrimination. 

7.  What if my disability is irregular?

  For an employee or interviewee, it can be difficult to explain to an employer that their disability impacts them sporadically. does an employee or interviewee tell their employer that their disability is unpredictable?  In other words, the individual can have periods of being in a well state followed by random spells of their disability impacting their health.  Some examples of this may be HIV, epilepsy, diabetes, or remission for cancer. Flare-ups or a spike of impairment does not mean an employee does not have a disability and should not be entitled to accommodation in the workplace. Disabilities are not always predictable and the legislation recognizes individuals who experience sporadic impairments. 

 In certain situations, depending on the specific disability and how the disability affects the employee or interviewee’s ability to perform key life activities, may be considered a disability under California legislation. 

8.  The name disability is not listed under the legislation

  Just because the medical term used to diagnose your disability is not specified under the legislation or perhaps your employer has never heard of it, does not mean you are not entitled to protection under the legislation. In order ensure that most disabilities are recognized, the legislation does not look to the name of a disability or condition but rather to how it impacts an employee or interviewee’s ability to perform key life activities.  Examples of key life activities include bathing, walling, seeing, hearing, speaking, breathing, etc.

9.  How do I know if I was discriminated against based on my disability?

  Many laws in California protect employees with a disability as well as individuals who are participating in job interviews.  Although the laws are there to provide protection, the laws are complicated so employees may not know their rights and employers may not be abiding by their obligations.  The best way to know if you are being discriminated against by an employer to meet with an employment lawyer who specializes in representing employees against their employers.

A good place to start in your search for a discrimination lawyer would be to search for a firm that offers free consultations. 

More Articles about ADA and disability discrimination at the workplace:

• How The American Disability Act (ADA) has protected disabled workers?
• How ADA Can Protect Millions of American lives
• 4 Things an Employee Should Know About Filing a Disability Discrimination Claim
• 5 Important Questions Asked about Disability Discrimination and Wrongful Termination
• 5 Disabilities that May Be Protected By Employment Law
• 5 Ways an Employer May Be Liable For Disability Discrimination
• 6 Nuances of Disability Discrimination Law in California
• 8 Things You Need To Know About Disability Discrimination
• 8 Main Disability Discrimination Questions

While it is often challenging for any employee navigating work life to be a member of the LGBTQ community, transgender people tend to face the most severe problems, particularly in terms of discrimination. In 2016, the National Transgender Discrimination Survey found that 16 percent of transgender people had lost a job due to bias and that the unemployment rate among respondents was 15 percent, which was three times as high as the rate of unemployment in the U.S. population. In addition, in the year leading up to the survey, 30 percent of transgender respondents who had a job reported facing mistreatment at work due to their gender identity or expression This prejudice is present not only in employment but in society in general. Transgender people face pervasive mistreatment and violence. In the same aforementioned survey, it was found that almost half (47%) of transgender respondents were sexually assaulted at some point in their life. Fortunately, California has been working to strengthen the rights of transgender employees and transgender folks do have several legal protections. This article will go over some of those rights. If you think that your rights have been violated, speak with an employment or discrimination attorney to figure out what you can do about it.

For those unaware, transgender is a term used to describe people whose gender identity is different than their biological sex. It is separate from sexual orientation, which refers to who a person is attracted to. For instance, a transwoman can be bisexual, heterosexual, homosexual or have a different sexual orientation. California regulations define gender expression as an individual’s gender-related behavior or appearance, or the perception of such behavior or appearance, whether or not stereotypically associated with the person’s gender assigned at birth. These regulations define gender identity as an individual’s internal understanding of their gender and notes that gender identity does not need to match gender assigned at birth. Moreover, someone’s gender identity might be female, male, a combination of female and male, or neither female nor male. People who do not identify as only male or only female are typically considered non-binary and are afforded the same protections as transwomen and transmen. Furthermore, transgender people are protected during their transition at any stage, as well as if they do not decide to transition at all. Transition refers to both social and physical aspects of a person deciding to live as the gender they truly identify with. Social transition is the process of aligning one’s gender in social areas of life to the internal gender identity. It can include coming out as transgender to friends, family, and other people, as well as dressing or grooming in alignment with gender identity. Social transition also often includes changing name and personal pronouns, which are important changes to respect. Physical transition involves changing the body with medical treatments, such as hormone treatment, so that an individual physically aligns with their gender identity. With these definitions in mind, let’s review how California has tried to protect its transgender workers.

1. The right to appropriate facilities

Employers have to allow employees to use facilities like bathrooms that correspond to their gender identity or expression regardless of sex assigned at birth. Single occupancy facilities should be labeled with gender-neutral signs, like “Unisex” or “All Gender Restroom,” or even just “Gender Neutral.” While this right might seem trivial to some, it has been the cause of significant strife in the transgender community, and there has been a significant public debate on a national level regarding this so-called bathroom issue. Unfortunately, harassment is fairly common for transgender people who try to use the facilities aligned with their gender identity. Legal protections are an important step to addressing this problem.

2. The right to appropriate dress codes

Additionally, employers must be mindful when it comes to gendered dress codes. While these are not inherently illegal, employers cannot command an employee to conform to a grooming or dress code that is inconsistent with the employee’s gender identity or expression. Exceptions occur for the sake of business necessity, but they are not common. This right is particularly important during social transition, and a person changing from one gender’s dress code to another is protected.

3. The right to be free from discrimination

In California, it is illegal for employers to discriminate at any stage of employment based on gender identity or expression in the same way that it is illegal for them to discriminate based on sex, race, and national origin, among other categories. This means people cannot be fired, for instance, because they are transgender. Additionally, during hiring, employers cannot discriminate against people who are transgender; to help avoid potential bias, there are certain questions employers are legally not allowed to ask an applicant. These include questions meant to ascertain an applicant’s gender identity or sexual orientation, including queries about marital status, spouse’s name, etc. Questions about a person’s body or plans for surgery are also off-limits, unsurprisingly.

The fact that gender identity and expression are protected classes in California is the most important protection transgender workers have here, and the protection of these classes is something that many people are hoping the Supreme Court soon recognizes under Title VII’s prohibition of sex discrimination for the benefit of all the many states that currently allow discrimination against transgender people.  

4. The right to an informed workplace

Employers have a couple of specific obligations that essentially afford transgender people greater protection by disseminating and increasing knowledge of transgender rights in the workplace.

First, employers are legally required to display a poster detailing transgender employees’ rights. This poster has to be visible to all employees, as well as easily accessible. To make this requirement easy for employers, the Department of Fair Employment and Housing (DFEH) made a poster employers can use. This is actually quite important because marginalized groups, including transgender folks, often do not realize what their rights are. This poster gives them power by providing that knowledge. Of course, it also provides that information to potentially ignorant coworkers, which may help preclude harassment.

Second, employers with at least 50 employees are required to provide at least 2 hours of training on sexual harassment to supervisory employees. This training must include information about harassment based on sexual orientation, gender identity, and gender expression. As a result, supervisors are in a better position to ensure a welcoming and safe work environment for all employees, regardless of gender identity or expression.

            Transgender people deserve to be treated the same as cisgender people and, hopefully, that will be the norm one day soon. In the meantime, for those whose rights have been violated, for those suffering from discrimination and harassment at work because of their identity, reach out to an employment lawyer and learn how to fight back.

There are many ways to protect employees from sexual harassment in the workplace. In 1982, Ann Hopkins applied for a partnership at Price Waterhouse in New York, where she was a senior manager. The company held off on making the decision for a year and then refused to revisit her proposal. She later learned that she was not made a partner on the basis of her sex. Notes from the hiring decision meeting found that Hopkins, a senior manager, was mocked and criticized behind her back in official meetings on her potential promotion due to her sex, and, more specifically, how she presented her gender. Among the comments that put the firm in hot water were that Hopkins needed “a course at charm school,” that she needed to wear more makeup and jewelry, and that she needed to walk and talk in a more womanly manner, and, especially, that she needed to swear less. While no one can fault the company for having standards in how its employees present themselves, Hopkins took issue with the fact that she was forced to meet expectations that her male coworkers were not. So she sued, and because these conversations were held in an official discussion about whether or not she should be promoted to partner, the Supreme Court ultimately held that the company had failed to prove that its decision not to promote Hopkins was based on any legitimate standards. The Price Waterhouse v. Hopkins decision protected women from unequal treatment in the workplace, reaffirming Title VII requirements that hiring and promotion decisions must be made on the basis of a candidate’s qualifications, rather than their sex.

Just nine years after Price Waterhouse v. Hopkins was decided, in 1998, Lilly Ledbetter, a factory worker at Goodyear Tire and Rubber Company in Alabama, found an anonymous note in her mailbox tipping her off to the fact that she had been paid less than her male counterparts for years. When she first took the case to court, she was awarded $3.5 million but the company appealed and the Appellate Court rescinded her victory on the basis that discrimination claims had to be proved within 180 days, so she only had grounds to appeal the last 6 months of unequal paychecks. The Supreme Court upheld the Appeals Court’s decision, arguing that the lawsuit should have been filed within 180 days of the first unequal paycheck. Ledbetter, of course, could not have done this, because she did not know she was being paid unequally.

Ledbetter’s story ended with President Barack Obama signing the Lilly Ledbetter Fair Pay Act in 2009, removing the 180-day statute of limitations for challenging pay discrimination. The Lilly Ledbetter Fair Pay Act overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), recognizing what Ledbetter and her many employment attorneys had been arguing all along: that it is nearly impossible to recognize that one is being paid unequally after a single paycheck. Summarily, in her dissent, Supreme Court Justice Ruth Bader Ginsburg argued that “pay disparities often occur, as they did in Ledbetter’s case, in small increments; only over time is there strong cause to suspect that discrimination is at work. ”Indeed, the policy limiting discrimination claims to 180 days after the alleged employment discrimination occurs, coupled with the common workplace practice of keeping employees’ salaries secret, making it effectively impossible for injured parties to fight for their equal treatment.

The impact of the Lilly Ledbetter Fair Pay Act is significant. On average, women earn seventy-eight cents for every dollar that a man earns – and that number is even lower for women of color. In most of these cases, it is extremely unlikely that hiring managers are consciously deciding to pay women less because they believe women do not work as hard or are simply worthless. But without stringent laws preventing this discrimination, unconscious biases can prevent women from earning an extra four hundred thousand dollars over the course of their careers. These regulations do not harm companies that are operating legally and fairly, but they allow those employed at companies with unfair pay practices to retaliate and earn the money they deserve.

The Lilly Ledbetter Fair Pay Act was not the first law to address sex discrimination in the workplace. It actually built upon a web of laws intended to prevent sex discrimination in the workplace. The Equal Pay Act of 1963, for instance, prohibited differences in pay between men and women who worked essentially the same job, with the same required skill, effort and responsibility, under similar working conditions, for the same company. Additionally, Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) prohibited workplace discrimination (on the basis of sex, race, color, or national origin), laying out a series of “unlawful practices.” These included such things as allowing the sex of an individual to influence hiring, firing, and promotion decisions, pay, or terms, conditions, and privileges of that individual’s employment, or limiting, segregating or classifying employees on the basis of sex. The law also prevents employment agencies, labor organizations, and job training programs from discriminating on the basis of sex. Additionally, the Family and Medical Leave Act of 1993 and the preceding Pregnancy Discrimination Act of 1978 prevented discrimination on the basis of pregnancy or motherhood.

The myriad of sex discrimination laws attempts to wipe out discrimination in hiring and firing, promotions, pay, and other treatment in the workplace on the basis of sex, as well as give injured parties the power to fight back against discriminatory practices. Longer statutes of limitations and broader definitions of discrimination and harassment have helped level the playing field. But as many women who face sex discrimination in the workplace still fall through the cracks with lower paychecks, fewer promotions, and limited pregnancy leave opportunities, it is clear that there is still more work to be done. Unfortunately, the lingering problems are not representative of bad policy, but of our culture. Unconscious bias is difficult to regulate, and until our culture changes, it will continue to influence workplace practices.

For more info about sex discrimination and learn how to prevent sexual harassment in the workplace call a discrimination attorney same as Stevens & McMillan Employment Lawyers

Author: Kaitlyn Beyer, University of Michigan Law School

Pre-Employment Screening and how its can violate your rights! With the job market being at one of its worst states ever in American history, the number of people looking for jobs are growing. In light of this, employers know they are in a better position to be selective and demanding in their application process and hiring criteria. However, employers must be careful not to cross certain boundaries that may amount to unlawful hiring practices. Certainly, employees should also be cautious of the pre-employment screening questionnaires they come across and be aware of the information they choose to divulge. Below are some (out of the many) modern issues that arise in the context of hiring and selection.

Laws on Pre-Employment Screening

The importance of knowing your rights when it comes to Pre-Employment Screening. California disabilities law restricts the use of a job applicant’s medical information. Note that this is a restriction, not an outright prohibition. During an interview or through an employment application, employers may ask about an applicant’s ability to perform the specific functions/tasks of the job. However, the employer cannot ask about the applicant’s health or medical history; this includes whether the applicant has ever filed a Workers’ Compensation claim. An example of a permissible inquiry would be, “Are you able to stand continuously for at least 5 hours per day?” An example of an impermissible inquiry would be, “Do you have any health condition that may prevent you from performing the job for which you are applying?”

Effective January 1, 2013, employers are prohibited from requiring or requesting applicants to disclose information regarding their personal social media accounts. Social media accounts can include Facebook, LinkedIn, Twitter, Myspace accounts, blogs, etc. Employers cannot ask applicants for their log-in information (e.g., username and password), require applicants to login to their own account in the presence of the employer or divulge any personal social media information. However, as would any other person in the general public, an employer may independently or through a use of an investigator search for and browse the employee’s social media account.

Employers are also prohibited from asking questions about marital status and/or children. An employer cannot ask an applicant if she is pregnant, has children or is planning to have children. Additionally, even if the employer already knows that applicant has children, the employer cannot ask if he/she has made provisions for childcare.

Under the Fair Employment and Housing Act, medical examinations of applicants are only allowed after a conditional job offer has been made. (A conditional job offer is an offer that is contingent upon the satisfaction of certain requirements). However, such post-offer medical examinations are permissible only if it is directly related to and pertinent to the position being applied for or directly related to whether an individual would endanger himself/herself or others. Such exams cannot be arbitrarily given and must be a requirement for all entering employees in similar positions.

The decision about whether to employ any person cannot be based on general beliefs about his/her disability, e.i., Pre-Employment Screening. Each person must be judged solely on whether his/her particular medical history and condition presently prevents him/her from performing the job safely and efficiently. Any medical standard or employment policy which automatically excludes entire groups of people (e.g. all people with high blood pressure, diabetes, AIDS, or back problems) is usually improper.

Note that if an employer decides not to hire (or promote) an applicant because of his/her disability, then the employer must allow the applicant the opportunity to submit an independent medical opinion. It is illegal for the employer to refuse the employee’s ability to do so.

If an employer refuses to hire (or in certain cases, promote) an applicant based on an illegal reason or selection criteria, the employee may have an employment claim against the employer. With that being said, applicants who have been subjected to any of the unlawful pre-employment inquiries discussed above should contact an employment attorney immediately to discuss his/her rights.

Wrongful termination settlements is said to have occurred when an employer has fired/laid off an employee in direct violation of their existing legal rights. If the wrongful termination law has been violated, the terminated employee can file his/her wrongful termonation settlements employment termination complaint with the government agencies. Alternatively, a private lawsuit can also be filed with the help of a wrongful termination Settlements lawyer.

The “At-Will” concept

All states have now adopted the doctrine of employment “at-will” to a certain degree. This means that employees can typically leave their jobs at any given time without any cause or advanced notice. In addition, it means that the employer can also typically fire / lay-off their employees at any given time without a specific reason. In many instances, employers legitimately ask employees to sign certain agreements or contracts that effectively document & enforce all the terms of this “at will” employment and this shows up in the company’s policy manuals.

The Exceptions

Of course, there are certain exceptions to the rule. Employees as well as employers are not permitted to breach the employment agreements/ contracts or even violate regulations, laws, constitutional provisions/ public policy when they are terminating employment. Exceptions such as intentional emotional distress, breach of implied contract and reliance on an employment offer do exist. “At will” employees can also be fired for certain job-related problems/ non-job-related reasons like personality conflict or the boss not liking the employee’s jokes.

These employees who have been wrongfully terminated have gone ahead and challenged the rules in court and won wrongful termination settlements and compensation. Though there is no fixed figure that can be attached to this kind of a settlement, it can sometimes be substantial. This settlement covers the lost wages and attorney’s fees & punitive damages are covered only under certain circumstances

The Right Legal Help

If a person has been wrongfully terminated and wishes to file a lawsuit against the employer, he/she will have to hire the services of a wrongful termination settlements lawyer. The person will provide the litigant all the details of this kind of filing and help with all the technicalities and legalities. Having a good lawyer can also result in a higher termination settlement and they will also be able to guide the person through the legal system. Since there are no hard and fast rules when it comes to winning a wrongful termination settlements, having the right legal help is top priority.

Call the Law Office of Stevens & McMillan Today (800) 738-3353 to get you the highest Wrongful termination settlements!

If you hope to get a job in the next three months, where in the US will you find the most vibrant employment market? According to the just-released Employment Outlook Survey from Milwaukee-based staffing giant ManpowerGroup, the No. 1 spot is the Cape Coral “Metropolitan Statistical Area,” a city designation coined by the Office of Management and Budget. The Cape Coral MSA, on Florida’s west coast 160 miles from Miami, includes Fort Myers.

Manpower MAN +0.17% ranks the top 100 MSAs. Each quarter it surveys employers in those cities about whether they plan to add or cut jobs, keep employment levels the same, or haven’t yet decided. In the Cape Coral area, a net 32% plan to hire new staff in the first quarter of 2015. That’s a substantial bump up from 23% a year ago. Dana Burnett, economic development director for the city of Cape Coral, says the city continues to rebound from the subprime mortgage crisis and construction jobs abound. “We got hit hard and we’re still waking up from that,” he says. Hertz announced last year that it was moving its headquarters to Estero, FLA, inside the Cape Coral MSA, and it’s in hiring mode. There are also retail jobs at the new Sam’s Club opening in January and jobs at a mega-Walmart planned for 2015. A shoe manufacturer, Camuto Group in Bonita Springs, is also hiring people who want to get a job.

Cape Coral’s robust picture compares favorably with a nationwide seasonally adjusted net employment outlook of 16%. That may not be as strong as the top MSAs on the list but, says Manpower Senior Vice President Kip Wright, “This is one of the most positive outlooks in the last six or seven years. It’s the strongest it’s been since Q1 of 2008,” he says. “We’re starting to see that the recovery is sustained, the stock market is improving, oil and gas prices are stabilizing, consumers have more money in their pockets and they’re rebuilding their savings.” The other plus: while there is plenty of low-wage food service and retail jobs, according to the Bureau of Labor Statistics (roughly one-eight of the new job openings in September 2014 were in retail trade, according to the BLS), there are also many jobs in professional business services, manufacturing, health care, and construction.

To gauge companies’ hiring plans, Manpower surveyed more than 18,000 US employers, gathering data in the top 100 metro areas. It used a research firm that quizzed hiring managers and human resource professionals by phone and email over the first two weeks of October. The firm asked one multiple-choice question about companies’ plans for the first quarter of 2015: How do you anticipate total employment at your location to change in the next three months to the end of March 2014, as compared to the current quarter? Companies could choose four answers: Increase staff. Reduce staff. Keep staff levels the same. Unsure. Then Manpower crunched the numbers and came up with a “net employment outlook.” The survey is a rough measure since it doesn’t count the number of jobs employers plan to add or subtract, but simply asks whether they plan to hire or fire.

After Cape Coral, the second-strongest hiring outlook is in McAllen, TX, near the southernmost tip of the state. A net 29% of employers plan to hire in Q1, the same number as a year ago. Kelli Stanton, Manpower’s regional director for South Texas says there are jobs opening up in construction, durable goods manufacturing, transportation, utilities, and professional and business services. There is also a lot of retail construction and new restaurant chains like Texas Roadhouse. Because it’s on the border, McAllen benefits from Mexicans who go there to shop for goods they can’t get at home.

Deltona, FLA, and Grand Rapids, MI are tied for third place. One of the spurs to Deltona’s growth is major construction at the Daytona speedway (Daytona is part of the Deltona MSA) that is adding a new level onto the structure, and across from the speedway, workers have broken ground on One Daytona, a huge shopping center centered around a Bass Pro Shop sporting goods store. Grand Rapids is benefiting from a housing revival after the whole state was severely battered by the great recession. Some of the employers that are in hiring mode: Steelcase, Spectrum Health, Mercy Health and Amway. Cascade Engineering, an auto products manufacturing, is also taking on new employees.

The city with the worst job outlook: Spokane, WA, with only a 2% net employment outlook, though Manpower Business Development Manager Christina Gross says the Spokane economy isn’t doing as poorly as that number suggests. “It’s a reflection of winter,” she says. Retailers hire a lot of temporary work for the holidays and then scale back hiring in Q1.” But Spokane also has three health care facilities and an insurer, Premera Blue Cross, that are doing well, and four universities including Washington State, also generate employment. “We’re busier and the overall feel is that people are getting back to work,” she says.

See our slide show above for 13 cities where the hiring outlook is the best (there are several ties so we included more than 10) and 11 cities with the worst net employment outlook (there is a six-way tie for fourth place).

Article extracted from Forbes.com