Introduction

Newsletter – January 2012 (page 5)

Newsletter – January 2012 (page 5)

GOVERNMENTAL NEWS

Company Pays $135,000 to Settle EEOC Disability Discrimination Lawsuit

DENVER – Casper, Wyoming-based “T.I.C. Wyoming” – The Industrial Company Wyoming, Inc., a heavy construction company that provides direct-hire construction services to traditional industrial markets, has agreed to pay $135,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC’s lawsuit, EEOC v. T.I.C. Wyoming, 11-cv-324-F, filed in federal court in Cheyenne on Sept. 30, 2011, millwright Matthew Gilkey, despite satisfactorily performing his job for several weeks, was fired by TIC Wyoming on Oct. 27, 2006, because of the company’s need to make reasonable accommodation for his physical impairments, which included a leg amputation.  The EEOC also claimed that TIC Wyoming refused to allow Gilkey to return to work unless he provided medical documentation that he could perform his job duties without medical restrictions. The EEOC further alleged that the company also failed or refused to engage Gilkey in good-faith discussions about accommodations he had requested and TIC Wyominghad previously provided but then withdrew.  In addition to the monetary settlement, TIC Wyoming has agreed, among other things, to provide its employees, supervisors, and managers with annual training for two years on the Americans with Disabilities Act, and to make periodic reports to the EEOC.

EEOC Denver Field Office Director Nancy Sienko said, “The EEOC stands ready to assist all victims of job discrimination.  The volume and increase in ADA charges demonstrate the EEOC’s need to stay vigilant in the fight for rights of the disabled.”

The EEOC enforces federal laws prohibiting employment discrimination.  The Phoenix District Office covers Wyoming, Colorado, Utah, Arizona and part of New Mexico.  Further information is available on the EEOC’s website at www.eeoc.gov.

We would like to thank Marc Dubin for this and other legal articles appearing in this edition.  Marc is a former counsel in the Civil Rights Division of the U.S. Dept. of Justice.  He is now associated with the Center for Independent Living of South Florida in Miami, Florida.

NOTE:  Again, we have a business engaging in the most obvious discrimination.  Will they ever “get it”?

 

HHS Office for Civil Rights Enforces Section 504 and ADA

January 14, 2011

WASHINGTON – The U.S. Department of Health and Human Services, Office for Civil Rights (OCR) has entered into several settlement agreements and issued letters of findings as part of its ongoing efforts to ensure compliance with Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act of 1990 (ADA).

Section 504 prohibits disability-based discrimination by all health care and human services providers that receive federal financial assistance and Title II of the ADA prohibits discrimination on the basis of disability by state and local governments.  Taken together, these laws provide protection against discrimination for a group of individuals who routinely experience exclusion and segregation.

“People with disabilities should have an equal opportunity to benefit from programs funded by federal dollars and to participate and live in their communities,” said OCR Director Leon Rodriguez. “Laws such as Section 504 and the ADA exist to ensure that these rights are not violated and that individuals do not face discrimination.”

Examples of OCR’s recent enforcement actions include settlement agreements in two cases, Citizen’s Medical Center and Bertrand Chaffee Hospital, and a letter of findings sent to Georgia’s Medicaid agency:

Citizen’s Medical Center

OCR entered into a settlement agreement with CMC in Victoria, Texas, after finding violations of Section 504 and the ADA, when it rejected a child with autism for enrollment in a program based on its concern that the child would need one-on-one care as a reasonable modification. OCR determined that even if the child did need one-on-one care, CMC had not demonstrated that providing such a reasonable modification would fundamentally alter the nature of the program or pose a direct threat to the health or safety of other children in the program. OCR found that CMC’s blanket policies of excluding children with “special needs” and excluding children who need one-to-one care, discriminates against children with disabilities.

Bertrand Chaffee Hospital

OCR entered into a Settlement Agreement with Bertrand Chaffee Hospital in Springville, New York to correct potential compliance issues with Section 504 and the ADA. The Agreement follows a complaint alleging that the Hospital engaged in unlawful discrimination on the basis of disability by failing to provide a patient who was deaf with a sign language interpreter while she was treated at the Hospital. The complainant further alleged that there was no TTY service available to her while she was receiving treatment. Section 504 and the ADA require that covered entities provide auxiliary aids and services, including sign language interpreters, to people with disabilities, when necessary for effective communication.

Georgia Department of Community Health

In a letter of findings to the Georgia Department of Community Health, OCR found the agency failed to assist the complainant in moving out of a nursing home and back into the community as required by the Olmstead decision. In Olmstead, the Supreme Court held that the ADA requires public entities to provide community-based services to persons with disabilities when such services are appropriate; the affected persons do not oppose community-based treatment; and community-based services can be reasonably accommodated.  This complainant has lived in a nursing home for 17 years and has been very clear about her desire to move to the community.  She has been determined by her doctor to be appropriate for community placement and the state has made no showing that such services cannot be reasonably accommodated.

People who believe that an entity receiving federal financial assistance has discriminated against them (or someone else) on the basis of disability, may file a complaint with OCR at: http://www.hhs.gov/ocr/civilrights/complaints/ index.html.  Summaries of each of these enforcement efforts can be found on OCR’s website: www.hhs.gov/ocr/civilrights/ activities/agreements/. For more information on community living and Olmstead please visit: http://www.hhs.gov/ocr/civilrights/ understanding/disability/serviceolmstead/index.html.


EEOC Sues Capital Healthcare Solutions for Disability Discrimination

PITTSBURGH—A leading national health care staffing firm violated federal law by withdrawing an offer of employment to a certified nursing assistant because she was HIV-positive, the U.S.Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.

The EEOC charges that Pittsburgh-based Capital Healthcare Solutions, Inc. extended a job offer to an experienced certified nursing assistant but unlawfully rescinded the job offer less than one month later based on his disability. The job offer was conditioned on the nursing assistant passing a medical examination. In the medical form, his doctor noted that the certified nursing assistant was HIV-positive, but was not restricted from performing the required job tasks, so long as “universal precautions,” such as gloves and face masks, were used.

Even though the nursing assistant was well-qualified and able to perform the job, Capital Healthcare Solutions withdrew the job offer and refused to hire him because of his disability or because the company regarded him as disabled, the EEOC said in its lawsuit filed in U.S. District Court for the Western District of Pennsylvania, Civil Action No. 2:11-cv-01249.

Refusing to hire a qualified individual because of his disability, record of disability, or because the employer perceives a person as being disabled violates the Americans with Disabilities Act (ADA). The EEOC is seeking injunctive relief barring the company from engaging in disability discrimination in hiring, and monetary relief, including back pay, compensatory and punitive damages on behalf of the nursing assistant. The nursing assistant is also represented by the AIDS Law Project of Pennsylvania, a nonprofit, public-interest law firm providing free legal assistance to people with HIV/AIDS and those affected by the epidemic.

District Director Spencer H. Lewis, Jr., of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Delaware, West Virginia, Maryland, and parts of New Jersey and Ohio, said, “This lawsuit should remind all employers that they must make employment decisions based on an individualized assessment of the person’s ability to do the job, and not act out of speculative fears or biases against individuals with HIV.”

"Newsletter – January 2012" table of contents

  1. Newsletter – January 2012
  2. AND NOW, TO OUR NEWS
  3. AND NOW . . . THE UPDATE
  4. Steve Gold’s “Treasured Nuggets of Information”
  5. GOVERNMENTAL NEWS
  6. OTHER NEWS
  7. Disabled Host, With the Emphasis on Able
  8. NEWS YOU CAN USE