Category: Disability Discrimination

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.


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.

Top 10 Legal Lessons from the Movies

10 Real Life Lessons on the Law as Taught by Movies

10) “Erin Brockovitch”: Released in 2000, Julia Roberts plays the titular role. Brokovitch serves as a law clerk to a personal injury attorney, who, after some initial investigation, spurs one of the largest class actions in history. The lessons we can learn from this movie? The definition of a class action law suit. In the film, the personal injury case has a total of 634 plaintiffs. A class action is simply defined as a group of plaintiffs who have common claims against a defendant. While not all class actions tend to reach into the numbers that the movie depicts, they are multi-plaintiff cases. And the price tag for Brokovitch wasn’t so bad either.

9) “The Firm”: Tom Cruise plays a Harvard Law grad, Mitch McDeere, in this 1993 film. He is offered the associate position of a lifetime at a shady not-so-ethical firm. When two associates of the firm are found murdered, McDeere is torn between helping the FBI solve the murder and preserving his law license—and possibly his life. McDeere is hesitant to violate the firm’s attorney-client privilege to aid the investigation. Attorney-client privilege protects communications between the two from being admissible as evidence. Therefore, a client can express all relevant information to counsel within a “zone of privacy.” Don’t you worry, Tom Cruise’s character is okay at the end of it all.

8) “Adam’s Rib”: Katharine Hepburn stars in “Adam’s Rib” (1949) as one half of a married attorney couple who find themselves on opposite sides of a case. While a battle of the sexes ensues, the real-life legal theory idea of spousal privilege is introduced. Much like attorney-client privilege, the information divulged between two married people during a case is considered confidential communication that is protected from testimonial disclosure. If only all cases were as fun as Katharine Hepburn and Spencer make it look in this quintessential romantic-comedy.

7) “North Country”: Josey Aimes, a down on her luck, abused woman, returns to her hometown in northern Minnesota. Portrayed by actress Charlize Theron, Josey ends up working in the town mine, where she is constantly sexually harassed and “slut-shamed” for having her son out of wedlock. Josey tries to report the harassment to the mine’s Board of Directors, but instead finds herself in the fight of her life. From this 2005 film, we learn that sexual harassment in the workplace is an actionable offense, and the employee has a right to pursue a suit against the employer for harassment, especially if management, in this case the mine’s Board of Directors, ignores it. With drama that justifies a “slow-clap” ending, North Country teaches us a little about labor law.

6) “Philadelphia”: In this revealing 1993 film about HIV/AIDS and homophobia, Tom Hanks plays Andrew Beckett, an associate at a corporate law firm who is fired because he contracts the disease. In the trial that ensues, Beckett and his attorney, played by Denzel Washington, allege disability discrimination, and the jury eventually awards a favorable verdict. In the state of California, disability discrimination is prohibited by the Fair Employment and Housing Act under the Department of Fair Employment and Housing. Employers must engage in an interactive process with the employee to accommodate a person’s disability in order to facilitate his or her continued success with the company, if possible. Hanks won the Oscar for his role as Beckett.

5) “Double Jeopardy”: In this 1999 Tommy Lee Jones film, Jones plays a parole offer named Travis Lehman who is charged with supervising an accused, yet innocent, murderess when she is released from jail on parole. The murderess, Libby Parsons (played by Ashely Judd) seeks to kill the victim (who wasn’t really dead) that she was framed for killing six years prior. She cannot be tried twice for the same crime under the Double Jeopardy Clause in the 5th Amendment. The clause, in all actuality, prevents a person from being tried twice for the same crime if that person was acquitted or convicted previously. For Judd’s character, it was a convenient loophole.

4) “Rain Maker”: We learn a cardinal rule of law in this 1997 movie starring Matt Damon. Never sue anyone who doesn’t have money or is about to file for bankruptcy. Damon’s character, Rudy Baylor manages to render a favorable verdict for his client in an insurance bad faith case that is worth millions. However, the company then files for bankruptcy which leaves Rudy with nothing to recover. So, lesson learned: do your homework before you sue.

3) “Runaway Jury”: While this 2003 flim has more to do with jury fixing than most anything else, it’s also a peak into civil action versus criminal action. In the movie, a widow of a work place shooting victim sues the employer for gross negligence in civil court. Civil lawsuits deal with disputes between individuals and entities that can be redressed by compensation. Criminal cases deal with the punishment of those who committed egregious acts like: murder, burglary, assault/battery, etc. Criminal charges are brought forth by the government. So, if the worker’s widow had filed a police report and the government had tried the shooter for murder, it would have been a criminal case. Since she filed a lawsuit seeking monetary damages and reconciliation, it is a civil action.

2)  “Laws of Attraction”: Two divorce attorneys representing two sides of a case, accidentally get married during an unexpected night on the town. Julianne Moore plays Audrey Woods and Pierce Brosnan plays Daniel Rafferty in the 2004 comedy. Soon after they get married, Daniel finds sensitive material about Audrey’s client and uses it in court the next morning. You would think this was a conflict of interest. You might be right. According to the ABA a conflict of interest exists if “the representation of one client will be directly adverse to another client; or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” So I would say marrying opposing counsel during an open case might constitute as a “risk…limited by a personal interest of the lawyer.” No judgment.

1) “Legally Blonde”: Who can forget the beloved and adorable Elle Woods as played by the equally charming Reese Witherspoon? The 2001 flick centers around Elle’s entrance into Harvard University Law School and her experiences as a law student. Though she initially attends to chase a man, she ends up being one of the most successful graduates from her class. During her first day at Harvard, one of Elle’s professors quotes Aristotle, whose famous line can now be recited by sorority girls everywhere. “The law is reason free from passion.” Fair point, Aristotle. Lawyers can only operate as so far as the law allows. But hey, the law is always changing, improving, and shaping the way things work.

Can Telecommuting be a Reasonable Accommodation for a Disability: Maybe.

The Sixth Circuit Court of Appeals (district courts in Kentucky, Michigan, Ohio, and Tennessee), held on April 22, 2014 that telecommuting might be a reasonable accommodation under the Americans Disability Act (ADA).  This ruling can be persuasive in California that has not definitively ruled on the issue.  In the case EEOC v. Ford Motor Company, the Court of Appeals sent the case back to the trial court to be decided by a jury on whether telecommuting could be a reasonable accommodation.  In this case, Jane Harris was hired as a resale buyer for Ford in 2003.  Harris severely suffered from Irritable Bowel Syndrome (IBS) and requested to work from home 4 of 5 days during the week.  Ford denied the request stating that her job required interaction and face-time with other employees and clients.  Shortly thereafter, Harris asserts her supervisor began harassing her, gave her a bad review, and then terminated her.  The EEOC sued on behalf of Harris and, under this ruling, is allowed to continue progressing the case alleging discrimination and retaliation.

To support its opinion that telecommuting might be a reasonable accommodation, the court said: “When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous.  However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.”

Factors to consider for your job and whether telecommuting could be a reasonable accommodation are (1) the particular job, (2) the demonstrated work ethic of the employee and demonstrated ability to work well without supervision, (3) whether the employee has the necessary “tools” to perform the job well from home, (4) the employee’s medical condition, and (5) whether telecommuting will really resolve the work-related issue created by the medical condition.

Employees Sue the Most in…

This month, a Hiscox survey revealed the states that employees tend to sue employers the most. The reason for these states higher than normal rates is attributed to state-wide labor codes that supersede federal laws in terms of harsher penalties and repercussions.  So who, what, and where?

Coming in at #5 is the state of Georgia. Georgia’s sue rates are 18% higher than other parts of the country. Tied at #4 are Arizona and Mississippi. Both states see, on average, 19% more lawsuits by employees than the national average.

Alabama rings in at #3 with a 25% above average chance that an employee will sue the employer for violations of labor law. Illinois edges out Alabama for the #2 spot with 26% higher average.

And the state that beats them all? Well, California of course! California is #1 with businesses facing a 43% higher chanced of being sued than the national average. California has employee stricter employee protections put in place as compared to other states in the country. The Fair Employment and Housing Act protects from various discrimination risks and covers companies with five or more employees as opposed to the nation’s 15 employee minimum.

The fives lowest suing states are: Massachusetts, Michigan, Kentucky, Washington, and West Virginia.