Frequently Asked Questions

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  • Are government or public employees protected for their political activity?

    As a general rule, the First Amendment protects public or government employees from adverse employment action based on their political activity or support. This is not an absolute rule, and there are exceptions, which most often depend on the employee's job and the activity. See Political Activity & Government Employees.

    These are usually referred to as political discrimination cases.

    Lexington, Kentucky employment lawyer Robert Abell represents individuals and employees in political discrimination cases; contact him at 859-254-7076.

  • Protesting Discriminatory Treatment – What Is Protected Activity?

    Both federal and Kentucky state law protect an employee or individual against retaliation when they have protested, complained of and/or opposed what they reasonably and in good faith believed to be unlawful discrimination directed either at themselves or a coworker. Such statements that protest, complain and/or constitute opposition to unlawful discrimination are considered "protected activity." But in the real world it is rare for people to couch their protest in the terms of legal argument and verbiage. So what kind of statement/protest may be sufficiently specific to indicate that it is a statement in fact protesting discriminatory treatment?

    The federal court of appeals that covers Kentucky, the United States Court Of Appeals for the Sixth Circuit, discussed in a recent case whether the employee's statements were sufficiently specific to constitute protected activity, the statements being as follows:

    • "I'm going to respond with counsel."
    • "I'm going to bring you up on charges before..."
    • "Bring a lawsuit against [the supervisor]"
    • "Hostile  work environment."
    • "I will have an attorney respond."
    • "I will be responding with charges."

    The case is Yazdian v. ConMed Endoscopic.

    This court decision, however, does not mean that such statements will always in any and every case be protected activity. Context means everything. The employee or person making the statements must be acting reasonable, which means they must have some legitimate basis for making such a statement, because such a statement out of the blue with no context would not be protected activity. These issues necessarily must be reviewed and decided on a case-by-case basis. There is no bright line.

    Lexington, Kentucky discrimination lawyer Robert Abell represents individuals and employees in discrimination and retaliation cases; contact him at 859-254-7076.

     

     

     

  • Can Religious Practice be Considered in Employment Decisions?

    Both federal and Kentucky state law prohibit religious discrimination in employment. But what does this mean? Can an employee's or an applicant's religious practice be considered in employment decisions such as hiring, promotions, raises? 

    The answer is "no" and the Supreme Court stated the simple rule recently:

    An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. 

    This simple rule was announced in the recent decision, EEOC v Abercrombie & Fitch, which is further discussed in another post: Religious Discrimination-the Supreme Court Announces a Rule.

     

  • Is High Blood Pressure a Disability Covered by the ADA?

    The answer is yes, according to the ruling of a federal appeals court in the case, Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1173 (7th Cir. 2013). 

    In this case, the plaintiff had a blood pressure spike that created a short-terms problem that quickly passed. The court mainly decided what the transitory nature of the spike meant in terms of whether the high blood pressure was a condition constituting a disability under the ADA with the following analysis:

    Gogos's episode of a blood-pressure spike and vision loss are covered disabilities. He attributes both problems to his longstanding blood-pressure condition, and the ADA's implementing regulation lists hypertension as an example of an “impairment[ ] that may be episodic.” Under the 2008 amendments, “[t]he fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity.” 29 C.F.R. Pt. 1630, App. at Section 1630.2(j)(1)(vii). Instead, the relevant issue is whether, despite their short duration in this case, Gogos's higher-than-usual blood pressure and vision loss substantially impaired a major life activity when they occurred. See id. Construing the complaint generously and drawing reasonable inferences in Gogos's favor, we conclude that they did. Gogos alleges that his episode of “very high” blood pressure and intermittent blindness substantially impaired two major life activities: his circulatory function and eyesight. 42 U.S.C. § 12102(2). Accordingly, he has alleged a covered disability.

    Lexington, Kentucky ADA lawyer Robert Abell represents individuals and employees in disability discrimination cases under the ADA; contact him at 859-254-7076. 

  • Is Telling a Supervisor To Stop His Sexual Harassment Protected Activity?

    Both federal and Kentucky state law make it unlawful to retaliate against an employee that has opposed some unlawful employment practice such as sexual harassment.  The courts characterize the key question as whether the employee engaged in "protected activity"; if so, the anti-retaliation provisions apply.

    If an employee tells her supervisor to stop sexually harassing her is it protected activity? That simple question was decided recently by the Sixth Circuit, which covers Kentucky, in EEOC v New Breed Logistics.

    Three employees, Pete, Pearson and Hines all were sexually harassed their supervisor, Calhoun, and, in one way or another, told him to stop it. Another employee, Partee, a male, told Calhoun that he should stop sexually harassing the female employees or he would get in trouble. 

    The employer, New Breed Logistics out of Memphis, argued that what these four employees, Pete, Pearson, Hines and Partee, said and/or did was not "protected activity" and, therefore, they had no basis for any retaliation claim arising from their subsequent firing. The Sixth Circuit rejected this argument and explained as follows:

    we conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct.

    This ruling as to the employees' protected activity was one part of a decision that upheld a jury's verdict awarding and assessing some $1.5 million to the four employees.

  • When is a disability covered by the ADA?

    For a medical or other condition to be a "disability" covered by the Americans With Disabilities Act (ADA) two basic things are necessary: the condition must be (1) substantially limit the for the person (2) a major life activity.

    Here's an example from a recent case, Jacobs v North Carolina Administrative Office of Courts.  Jacobs worked as a deputy courthouse clerk at a county courthouse in North Carolina.  She was diagnosed with and had long suffered from a condition known as Social Anxiety Disorder. She requested a reasonable accommodation, to be assigned to work elsewhere in the clerk's office aside from the front desk where she was called upon to interact with lawyers, defendants, and other members of the public throughout the day. Her employer refused and instead made up a reason to fire her.  Jacobs filed suit claiming that the refusal to reassign her and her firing violated the ADA.

    The court first considered whether Jacobs' condition affected a "major life activity."  This was an easy question, since a "major life activity" is one of "central importance to daily life" and "few activities are more central to the human condition than interacting with others."  

    Then the employer argued that Jacobs was not substantially limited in interacting with others because she “interact[ed] with others on a daily basis,” “routinely answered inquiries from the public at the front counter,” “socialized with her co-workers outside of work,” and engaged in social interaction on Facebook. This argument when nowhere and too far as the Court observed:

    The [EEOC] regulations define a substantially limiting impairment as one that “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” “An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” ... A person need not live as a hermit in order to be “substantially limited” in interacting with others.

    The key here, the main test is whether the condition substantially limits the individual's ability to do the activity "as compared to most people in the general population." I'd put it, does the condition make it harder for the individual than it does for most people in the general population?  

     

     

  • When Can an Employer Require a Medical Exam under the ADA?

    An employer may consistent with the Americans With Disabilities Act (ADA) require an employee to submit to a medical exam where the exam or the related medical inquiry is both job-related and consistent with business necessity. 42 USC 12112(d)(4)(A).

    This means at least two things: (1) the business necessity standard cannot be satisfied by an employer's bare assertion that a medical examination was merel convenient or expedient.  (2) the individual who decides to require a medical examination must have a reasonable belief based on objective evidence that the employee's behavior threatens a vital function of the business.  These points were discussed by the Sixth Circuit, the federal appeals court that covers Kentucky, in its case, Kroll v. White Lake Ambulance Authority.  

    Lexington, Kentucky ADA lawyer Robert Abell represents individuals and employees in cases under the Americans With Disabilities Act (ADA); contact him at 859-254-7076.  

  • Is Social Anxiety Disorder a Disability Covered by the ADA?

    "Yes" appears to be the answer, according to a recent ruling by the United States Court of Appeals for the Fourth Circuit in the case Jacobs v. North Carolina Court System. While the decision is technically binding only in the states of the Fourth Circuit, North Carolina, South Carolina, Virginia, West Virginia and Maryland, it almost surely would be followed by other courts including those in Kentucky.  

    Christina Jacobs was hired on as a deputy courthouse clerk at the New Hanover County courthouse in North Carolina.  She was a good employee and was assigned to the front desk in the clerk's office, a job that caused her to have direct and frequent contact with lawyers and other individuals that did business daily with the clerk's office.  She told her bosses about her diagnosis of social anxiety disorder and requested that she be assigned to other duties in the clerk's office (it was a pretty large office with about 30 employees).  Her request for a reassignment was a request for a reasonable accomodation.

    The employer, the North Carolina court system, asserted as a defense that "social anxiety disorder" was not a disability covered by the ADA, which, if true, meant it had no duty to consider let alone grant Jacobs' request.  The Court rejected this argument and ruled that "social anxiety disorder" was a disability covered by the Americans With Disabilities Act (ADA).  

    There is a two-step process to determining whether a condition is a "disability" under the ADA: (1) whether it affects a major life activity; and, (2) if it does affect a major life activity, whether it substantially limits the person's ability to perform or engage in the activity.

    Jacobs' case was easy on the first point, since, as the Court pointed out, "Few activities are more central to the human condition than interacting with others." As to the second, the Court ruled that Jacobs did not have to prove that she could function only as a hermit.

     

     

  • Does the ADA Require an Employer to Rethink its Processes?

    The Americans With Disabilities Act (ADA) requires an employer to consider what might be a reasonable accommodation for a particular, individual employee with a covered disability.  This requirement imposes a duty to make a true and thorough consideration, as the Seventh Circuit Court of Appeals describes in Miller v. Illinois Dept of Transportation, 643 F.3d 190, 199 (7th Cir. 2011):

    The ADA does not give employers unfettered discretion to decide what is reasonable. The law requires an employer to rethink its preferred practices or established methods of operation. Employers must, at a minimum, consider possible modifications of jobs, processes, or tasks so as to allow an employee with a disability to work, even where established practices or methods seem to be the most efficient or serve otherwise legitimate purposes in the workplace. ... The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work.

    This doesn't mean that anything and everything must be considered as a reasonable accommodation under the ADA; but it does obviously mean that more than lip service must be given to the process.

    Lexington, Kentucky ADA lawyer Robert Abell represents individuals and employees in disability discrimination cases under the ADA; contact him at 859-254-7076.

  • What is the business necessity enough to allow an employer to require an employee to submit to a medical exam?

    Under the Americans With Disabilities Act (ADA) an employer may require an employee to submit to a medical exam where the exam or the related medical inquiry is both job-related and consistent with business necessity. 42 USC 12112(d)(4)(A).

    So what does that mean? At least two things: (1) the business necessity standard cannot be satisfied by an employer's bare assertion that a medical examination was merel convenient or expedient.  (2) the individual who decides to require a medical examination must have a reasonable belief based on objective evidence that the employee's behavior threatens a vital function of the business.  These points were discussed by the Sixth Circuit, the federal appeals court that covers Kentucky, in its case, Kroll v. White Lake Ambulance Authority.  

    Lexington, Kentucky ADA lawyer Robert Abell represents individuals and employees in cases under the Americans With Disabilities Act (ADA); contact him at 859-254-7076.  

  • Can an Employer Fire An Employee Because the Employee Refuses to Commit Perjury?

    No.  Kentucky courts have ruled that an employee fired because he or she refuses to commit perjury in a legal proceeding may pursue a claim for wrongful discharge to recover their damages as well as punitive damages. Hill v Kentucky Lottery Corp, 327 SW3d 412 (Ky 2010) and Northeast Health Mgmt., Inc. v. Cotton, 56 S.W.3d 440, 449 (Ky App. 2001). The Sixth Circuit recently upheld a jury's verdict in a fired employee's favor where the jury found that the employee was fired for refusing to commit perjury in regard to a sex discrimination case against the employer. Burton v. Zwicker & Associates, No 13-5406 (August 22, 2014)

    The Burton decision is discussed further on Robert Abell's Kentucky Employment Law Blog: An Employer Cannot Fire An Employee Because the Employee Refuses to Commit Perjury.

     

  • What does the Pregnancy Discrimination Act protect against?

    The Pregnancy Discrimination Act offers the following protections:

         1. An employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action.

         2. The discrimination prohibition applies to all aspects of employment, including pay, job assignments,promotions, layoffs, training, and fringe benefits (such as leave and health insurance).

     

  • What are the basic protections against pregnancy discrimination?

    At their most basic the protections against pregnancy discrimination in the Pregnancy Discrimination Act are the following:

    1. Women affected by pregnancy, childbirth or related medical conditions must be treated in the same manner as other employees or applicants that are similar in their ability or inability to work.
    2. The Pregnancy Discrimination Act applies to all aspects of employment including hiring, firing, promotions, fringe benefits, etc.
    3. The protections against pregnancy discrimination apply with respect to current pregnancy, past pregnancy and potential pregnancy. 

     

  • Can An Employer Bar Employees From Comparing or Discussing Their Pay or Wage Rates?

    The answer is probably no. Recently, the United States Court of Appeals ruled in Flex Frac Logistics v. National Labor Relations Board that an employer policy that could be reasonably interpreted as forbidding employees from discussing and comparing their pay rates violated the National Labor Relations Act. 

    But this court decision is not necessarily the last word and other employers may have differences in the language of their policies that make a difference.  

  • Does Receiving Social Security Disability Benefits Bar an ADA Claim?

    Either receiving or having applied for Social Security disability benefits does not necessarily bar a claim under the Americans With Disabilities Act (ADA), although most often and usually it will.  This is because a claim under the ADA requires that the employee be physically capable of doing his or her job, with or without a reasonable accomodation, and a Social Security disability benefits claim may be (and often is) inconsistent with this, since a disability claim is based on a person's inability (to some degree or another) to work.

    But the Supreme Court has ruled that claims for Social Security disability benefits are not inherently inconsistent with ADA claims because a disabled worker might be able to perform essential job functions with reasonable accommodations in Cleveland v Policy Mgmt Sys Corp, 526 US 795, 797-98 (1999).

    Keep in mind that it will be the rare case in which someone who is receiving or has applied for Social Security disability benefits will still be able to go forward with their ADA claim. 

    Lexington, Kentucky disability rights lawyer Robert Abell represents individuals and employees in cases under the ADA; contact him at 859-254-7076. 

  • Should an Employee Request a Specific Accommodation for His or Her Disability?

    Yes; an employee that has a disability and requires a reasonable accommodation for that disability should be prepared to propose to his or her employer one or more specific accommodations for the disability. The accommodation may be a slight change in job duties or tasks, a reassignment to another position or something else. Keep in mind that what will be a reasonable accommodation is going to vary on a case-by-case basis because of the differences in an employee's disability, job duties and the employer's business.

    Once an employee proposes a specific reasonable accommodation, the employer can violate the Americans with Disabilities Act (ADA) if it fails to engage in an "interactive process" with the employee to determine how and whether the proposed reasonable accommodation can be achieved. Robert Abell discussedthis process and to post on his Kentucky Employment Law BlogADA: Should An Employee Propose a Specific Reasonable Accommodation? and ADA: An Employer's Good Faith Obligation.

    Lexington, Kentucky disability lawyer Robert Abell represents individuals and employees in cases and claims under the Americans with Disabilities Act (ADA); contact him at 859-254-7076.

  • Can An Employer Require Employees to Disclose Their Prescription Medications?

    Generally, no. A sweeping requirement by an employer that all employees must disclose their prescription medications would likely violate the Americans With Disabilities Act (ADA). However, an employer may make employees disclose their medications where there is a safety or business reason for doing so. A safety reason might be where an employee operates machinery. 

    The answer to these type of questions is not often clear-cut and much will depend on the employee's job duties and work environment.  But a requirement that all employees no matter what they do must disclose their medications is going to raise some issues under the ADA.

    Lexington, Kentucky disability discrimination lawyer Robert Abell represents individuals and employees who have suffered discrimination on account of a disability; contact him at 859-254-7076. 

  • Is a problem concentrating a disability covered by the ADA?

    A problem concentrating can be a disability covered by the Americans With Disabilities Act.  For a physical or medical condition to constitute a disability under the ADA three (3) things must be shown: (1) that it is an impairment that (2) substantially limits (3) a major life activity. 

    Concentrating is a major life activity specifically identified under the 2008 amendments to the ADA as I discussed in an earlier post: What Is a Major Life Activity Under the ADA?  

    But just any problem concentrating does not rise to the level of one covered by the ADA: To show that the concentrating problem is a substantial limitation it must rise to the level of posing a significant restriction as to the condition, manner or duration of concentrating compared to the average person. 

    Lexington, Kentucky disability discrimination lawyer Robert Abell represents individuals and employees in cases under the Americans With Disabilities Act; contact him at 859-254-7076.

  • Is a Lifting Restriction A Disability Covered by the ADA?

    A lifting restriction can be a disability covered by the Americans With Disabilities Act (ADA).  Can be does not mean is. For a lifting restriction to be a disability covered by the ADA, the lifting restriction has to be sufficiently severe and the lifting restriction must be significant, meaning that lifting must be significantly more difficult than it is for the average person. 

    Remember: a temporary lifting restriction can still be a disability covered by the ADA as previously discussed: Lexington Disability Lawyer: Temporary Condition Can Be A Disability.

    Lexington, Kentucky disability discrimination lawyer Robert Abell represents individuals and employees in ADA cases; contact him at 859-254-7076. 

  • Is A Sleeping Problem A Disability Covered by the ADA?

    A sleeping problem can be a disability covered by the Americans With Disabilities Act.  For a physical or medical condition to constitute a disability under the ADA three (3) things must be shown (1) that it is an impairment that (2) substantially limits (3) a major life activity. 

    Courts have ruled that sleeping is a major life activity, one example being Pack v KMart Corp, 166 F3d 1300, 1305 (10th Cir 1999). 

    To show that the sleep problem is a substantial limitation it must rise to the level of posing a significant restriction as to the condition, manner or duration of sleep compared to the average person. Berry v. T-Mobile USA Inc, 490 F3d 1211 (10th Cir 2007).

    The bottom line on this is that the sleep problem must be a significant problem, one that markedly distinguishes the individual from the average person, none of whom sleep perfectly.

    Lexington, Kentucky disability discrimination lawyer Robert Abell represents individuals and employees in cases under the Americans With Disabilities Act; contact him at 859-254-7076.