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Date April 2, 2012!!
Hello My friend,
Spring is finally here and there are many opportunities and challenges in the workplace. My heartfelt prayer to GOD ALMIGHTY is to continue to provide each of you with the most relevant and current info affecting your rights in the workplace. I thank you for continuing to support Basic Employee Rights eNEWs.
So let's get to it!
Retaliation can Be Easy To Prove....
Retaliation complaints filed with the (EEOC) Equal Employment Opportunity Commission have been growing steadily for several years. Now workplace retaliation is number one of all employee charges filed. According to the EEOC retaliation complaints account for 37.4% of all workplace complaints.
Retaliation claims are so effective because the legal requirements for proof are different from other discrimination charges. Employees can prove retaliation while losing on the original complaint. An employee can prove retaliation by her/his employer by demonstrating;
--> she or he engaged in a protected activity
--> she or he suffered an adverse employment action; and
--> there was a casual connection between the protected activity and the adverse employment action
The following scenario is an example of workplace retaliation:
(1) SuzieQ files a lawsuit claiming sexual harassment
(2) A month later she is terminated for "unsatisfactory" job performance
(3) She adds retaliation to the lawsuit, stating her firing was retaliation for filing the sexual harassment lawsuit
(4) She loses her sexual harassment lawsuit
(5) The "unsatisfactory" job performance is proved a pretext because SuzieQ had "excellent" recent job evaluations
(6) SuzieQ wins her retaliation claim!
The "casual connection" aspect of proving retaliation usually comes down to timing. The reason being an employee suffers adverse action soon after engaging in "protected activity" which was filing the sexual harassment lawsuit.
Lose Your Milk You May Lose Your Job!
A recent ADAAA (Americans with Disabilities Act Amendment Act) court decision just proves if "you got milk you got a job". Fourteen year Walgreens employee Barbara Barlow can testify to that. A musculoskeletal ailment made it difficult for her to do bending or heavy lifting. She had been consistently rated as excellent in her employee performance reviews. However, a change in managers also changed her performance rating.
She was reassigned to second shift and given custodial job duties requiring lifting trash can lids and mopping. Ms. Barlow informed management of her impairment of not being able to mop and lift. The employer requested a physician statement verifying her restrictions. The medical statement said she required "slight assistance" to perform the job. Ms. Barlow's manager refused an offer to speak to her doctor and threw the doctors' statement away.
Her manager required Ms. Barlow to compile a list of all her disabilities. On the list was a notation about not being able to lift a gallon of milk. However, Barbara stated she could "slide" the milk into the customer bag. This was unsatisfactory to management which proceeded to trash the list of limitations and terminated Ms. Barlow because of her disability. Walgreens suggested she seek disability benefits.
Ms. Barlow didn't buy that and filed a lawsuit for a violation of her ADAAA rights of 2008 and state law. Her claim was termination for being "perceived as" disabled. Under the ADAAA an employee is "disabled" if he/she is "regarded as" being disabled by the employer. Walgreens denied the claim of course, however the appellate court agreed with Ms. Barlow. Walgreens maintained Ms. Barlow never gave it notice she was "disabled" and was unable to perform essential job functions.
The court decided Barbara Barlow was indeed disabled under the ADAAA and that the new guidelines didn't require the limitation to be severe or significant. "The ADAAA (of 2008) was intended to promulgate a more liberal standard of the term 'disabled' making it easier for a plaintiff to show a disability,". That's good news for job seekers and employees. This recent court ruling apparently sends this message to employers. The degree of exertion involved with "major life activities" is not as important as the seriousness of the particular "disability" itself.
In other words because lifting a gallon of milk is relatively light the seriousness of Ms. Barlow's musculoskeletal condition was the more important consideration. (Barlow v. Walgreen Co., M.D. Fla.,3/14/12) I've personally had to deal with an employer seeking to violate my ADA rights which was a pretext of retaliation on another issue...but that's another article for another newsletter ;0)
Important points for employees to consider from this case.....
(1) Changes in management can mean changes in how your work ethic is viewed. It also means a change in the level of competence or incompetence of the new manager.
(2) After years of corporate America seeking to dismantle the ADA, the amended law ADAAA of 2008 restored and made it even more favorable to protecting employees. LEARN all you can about it!
(3) Documentation, documentation, documentation is extremely important. Make sure keep and copy all correspondence between you and your boss. Also your health care providers.
(4) Never assume your employer and HR are your "friends". Their first allegiance is to protecting the interests of the organization.
(5) Maintain an open dialogue with your boss about your employee rights, ADAAA and otherwise.
Until next time as always.....
Be something good to someone!
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Written by Yancey Thomas Jr.
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