Automatic Leave Policies Violate the ADA

Posted on February 23, 2010 by Tom Crane

 In a recent settlement with the EEOC, Sears Roebuck agreed to pay $6.2 million to resolve claims made by persons with disabilities.  Sears also agreed to enter into a consent decree, which means Sears agreed to perform many other non-monetary tasks in settlement of the claims.  The EEOC represented persons with disabilities who had worked at Sears.  In the suit, Sears allegedly maintained an inflexible leave policy which did not look at each request for leave on a case-by-case basis.  This is the largest ADA settlement ever.  Some 235 Sears employees received an average of $26,300 each.  

The EEOC also sued UPS in a class action lawsuit also for maintaining inflexible leave policies.  See report.  Delaware employment law blog reports that these leave policies concerned employers who terminate employees after six or twelve months, regardless of their individual situation.  These policies are fairly common, since they supposedly avoid claims of discrimination.  The theory is that every employee, regardless of whether their injuries stem from worker's compensation complaints, disabilities or just simple personal injuries, is treated the same: they are fired after so many months (six or twelve typically).  If all employees with health problems are treated the same, then there is no discrimination, correct? 

No.  Wrong, because the ADA requires an individualized assessment of a person's need.  Under the ADA, an employer must conduct a case-by-case evaluation regarding requests for accommodation.  For example, if an employee needs more time off as part of some treatment plan, the ADA would require an accommodation of more than six or twelve months of leave.  As Delaware employment law blog explains, employers with such leave policies are prime targets for lawsuits, now.  Many of us viewed such policies as unlawful.  Now, we know they are unlawful.  Employer should examine their polciies to make sure they allow for some sort of individualized evaluation whether extended leave is necessary as an accommodation. 

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Texas State Law Claims for Retaliation

Posted on September 30, 2009 by Tom Crane

 Most people are familiar with the retaliation part of Title VII of the Civil Rights Act of 1964.  That anti-retaliation provision prohibits retaliation against someone who opposes discrimination.  Texas is, of course, an at-will state.  But, even so, we do have a few state anti-retaliation statutes.  

Texas prohibits reprisal against an employee who reports abuse or neglect of a resident at a nursing home.  Texas Health & Safety Code Sec. 242.133.  Such a lawsuit must be filed within 90 days of the alleged reprisal.  

An employee is protected against being ordered to commit an illegal act.  This claim is known as a Sabine Pilot claim, after Sabine Pilot v. Hauck, 687 SW 2d 733( Tex. 1985).   The refusal to commit an illegal act must be the sole cause of the termination. 

An employee is also protected because he/she served on a jury.  Texas Civil Practice & Remedies Code Sec. 122,001.  An employee who believes he/she has suffered retaliation due to jury service has two years in which to bring such a claim.  The damages are limited, but still, this statute does offer some protection. 

Also, state or local government employees are protected if they report violations of law by their employer.  See Texas Government Code Sec. 554. The good faith report of the violation of law would need to be made to the appropriate law enforcement agency. The report would need to be related to the reporting employee's official duties. 

While this list is not completely exhaustive, these are the few protections we Texas employees have which actually have some teeth.  

 

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