Category: Disability Discrimination

Purloined Potty Privacy

bathroomThis falls under the heading of “be glad you don’t work here”:  In Chicago, Illinois, a company has started monitoring the time employees spend in the bathroom and disciplining employees it thinks use the restroom too much.

The company requires employees to swipe a card on a card reader when they enter and exit the bathroom, and keeps track of how much time each employee spends in the toilet.  If an employee spends more than 60 minutes in the bathroom in ten working days – or about 6 minutes per day – the employee can be given a disciplinary warning for “excessive use of the bathroom.”  On the other hand, an employee who does not use the restroom at all during a workday can earn a dollar on a gift card, for up to $20 per month.

In California, there would be several problems with a potty policy like this.  California goes a lot further than many states to protect employee privacy.  Keeping a list monitoring all line employees’ bathroom time seems to be a fairly major invasion of the employees’ privacy, and while there are no laws directly addressing this situation, there is a good chance the courts would agree the employer’s policy goes much too far.

Even worse, the potty policy could require employees to give their employers private, medical information.  There are numerous medical and disability-related reasons an employee might not be able to comply with the 6-minute limit or might need more than one or two bathroom breaks in a day, from Crohn’s Disease to medication-related incontinence issues, to nausea from pregnancy or even cancer-related chemotherapy.  Not only would the potty policy discriminate against these people, which would be unlawful, but it also might require them to explain their medical conditions simply to keep their jobs.  Normally, employers are very limited in what kinds of medical information they can ask, but a policy like the one the Chicago company has would basically require employees to volunteer the information.  A California company almost certainly would not be able to get away with such taboo toilet tracking.

Hobby Lobby in Center of Another Controversial Debate Regarding a Transgender Employee

Meggan Sommerville worked for Hobby Lobby in Aurora, Illinois as a frame shop manager for sixteen years. In 2010, Sommerville underwent a transition and legally changed her identity and gender to female. Though she claims her co-workers were relatively positive of the process, Sommerville claims management began discriminating against her for being a transgender woman.

In 2011, Sommerville began her lawsuit against Hobby Lobby with the Illinois Department of Human Rights because the craft chain refused to allow her to use the women’s restroom facility. Instead, the company insisted she continue to use the men’s facilities.

Sommerville had to wait until the men’s restroom was empty before she would enter. On one occasion, Sommerville could not wait and she used the female restroom. She was disciplined immediately. Though the suit was initially dismissed, it was reinstated by the Human Rights Commission.

According to the pending suit, the management at Hobby Lobby informed Sommerville that unless she “undergo genital reconstructive surgery” she would not receive “equal treatment as a female employee.” When Sommerville was caught in the women’s restroom, she felt like she was getting written up for merely acting her appropriate gender.

Because she was barred from using the gender appropriate restroom, Sommerville was diagnosed with Fibromyalgia, bladder problems, and dehydration because she had limited fluid intake. Further, the complaint alleges that Hobby Lobby’s policies resulted in Sommerville’s “over-anxiousness, embarrassment, shame, depression, anxiety, emotional distress, feelings of helplessness,” as well as a sleeping troubles.

Hobby Lobby is asserting the same conservative ideologies used in the infamous Supreme Court decision.

Image Source: thenation.com

 

California Supreme Court Votes in Favor of Undocumented Workers’ Rights

ssVicente Salas was an employee of Sierra Chemical in California when, while on the job, he injured his back and subsequently filed a workers’ compensation claim. Sierra Chemical, then, underwent an annual force reduction, a seasonal occurrence, and terminated Salas. Salas was not hired again when the season’s hiring process began.

Salas sued the company alleging disability discrimination and retaliation for his workers’ compensation claim. Originally, Sierra Chemicals prevailed and was granted a motion for summary judgment since Salas had used a false social security number to obtain his position at Sierra Chemical. The appeals court upheld this decision as well.

The case escalated to the California Supreme Court.  It reversed the lower courts’ motion of summary judgment. The California Supreme Court that while recovery rights of undocumented workers are limited, they are afforded to protections under the Fair Employment and Housing Act. The decision makes it possible for undocumented workers to bring a lawsuit against an employer for unlawful behavior.

Hey Walgreens, Was $1.39 Worth it?

diabetesJosefina Hernandez, an 18 year employee of Walgreens in San Francisco, has Type II Diabetes. During one of her shifts, Hernandez felt a hypoglycemic attack coming on, and needed to stabilize her blood sugar immediately. That’s when she reached for and ate a $1.39 bag of chips.

When a company security officer asked her why she was taking the chips before paying she wrote back hastily, “My sugar low. Not have time.” The officer did not understand, and by his testimony, neither did he seek clarification.

Hernandez was terminated a result, despite having no disciplinary actions against her previously and the company knowing she had diabetes.

The Equal Employment Opportunity Commission sued Walgreens on Hernandez’s behalf. Walgreens agreed to pay $180,000 for its alleged ADA violation. The company also promised to post a revised policy regarding disability accommodation and discrimination on its website.

Source: jdsupra.com

Genetic Information Cannot be Grounds for Discrimination

When you usually read about employment discrimination, the suit alleges discrimination based on race, gender, pregnancy, religion, age, and sexual orientation. The lesser talked about, lesser known protected category is not observable to the naked eye. Why you ask? Because it’s genetic. That’s right; your genetic information is protected by both federal and state law.

According the California’s Department of Fair Employment and Housing, a “genetic characteristic” is defined as “any scientifically or medically identifiable gene or chromosome or combination or alteration of a gene or chromosome, or any inherited characteristic…” A potential or current employer cannot discriminate against you based on your genetic susceptibility to certain inherited diseases or disorders.

Federally, the Equal Employment Opportunity Commission has been operating under the Genetic Information Non-discrimination Act (“GINA”) that Congress passed in 2008. It also prohibits adverse employment reactions to information regarding a potential employee or employee’s genetic information. At the beginning of the year, the EEOC settled a landmark case regarding genetic information discrimination.

In New York, Founders Pavilion Inc., a nursing and rehabilitation center, recently shut down due to the case. Last May, Founders was sued by the EEOC for requesting “family medical history as part of its post-offer, pre-employment medical exams of applicants.” The EEOC further alleged that five employees were fired after their genetic information was revealed; 138 total employees and potential employees were asked for the information.

Founders was held liable for a $370,000 award for the 138 individuals that were asked for information and the 5 that were terminated as a result.

Though genetic information discrimination is not specifically prevalent in day to day legal activities, if you feel you have been subject to such discrimination, contact Aegis immediately.