[blindlaw] input requested on disability issue
Marc Dubin
mdubin at pobox.com
Tue Feb 20 11:12:28 CST 2007
Title I of the ADA applies here. See www.eeoc.gov <http://www.eeoc.gov/> .
The local business to which you refer is covered if it has 15 or more
employees. The EEOC has a technical assistance piece, specifically talking
about people with vision disabilities, located at
http://www.eeoc.gov/facts/blindness.html.
The request for a reasonable accommodation need not be in writing, although
it is advisable to put it in writing to avoid future debates about what was
sought. A lawyer's letterhead often saves months of debate.
The EEOC says:
How does a person with a vision impairment request an accommodation?
The request for a reasonable accommodation must be communicated to the
employer. However, no magic words (e.g., "reasonable accommodation" or
"ADA") are needed. The request may be made in plain English, orally, or in
writing, and it may come from the applicant/employee or from a family
member, friend, or other representative.
Here, in part, is what the EEOC technical assistance piece says about
reasonable accommodations:
ACCOMMODATING INDIVIDUALS WITH VISUAL DISABILITIES
An accommodation is any modification or adjustment to a job or work
environment that will permit a qualified individual with a disability to
apply for a job, to perform a job's essential functions (i.e., fundamental
duties), or to enjoy equal benefits and privileges of employment. Under the
ADA, employers must provide reasonable accommodations to the known physical
or mental limitations of persons with disabilities. Generally, an individual
with a disability must request a reasonable accommodation before an employer
will have an obligation to provide one. Once an accommodation has been
requested, an employer should engage in an interactive process to determine
whether an individual has a disability that requires an accommodation and,
if so, must make a reasonable effort to determine the appropriate
accommodation. Accommodations vary depending on the needs of the person with
the disability.
You wrote that:
Co-workers of BW have brought it to the attention of the business manager
and owner that the structural hazards are perilous for BW and that he cannot
perform his duties well in the dim lighting. The owner's response was to
have the manager approach BW and ask BW if he would voluntarily quit;
otherwise, they will have to "let him go" as the business will not be
providing the same accommodations that were provided in the previous
workplace.
I recommend that the employee carefully assess the job under the new
conditions. What are the essential functions of the job? You described the
job as follows:
BW took a job with a local small business that makes,
and distributes, silk screen t-shirts. Taking the job resulted in his
losing the SS benefits. His job duties include counting, folding and
packaging shirts for distribution. When he started his job, accommodations
were made to assist in his ability to perform his duties; i.e., sufficient
lighting was provided and his work station was situated to reduce hazards of
movement.
It sounds like the essential functions include the ability to count t
shirts, fold t shirts, and package t shirts, and to be able to do so quickly
enough to have a certain number done in a certain time period. It sounds
like he is qualified to do those tasks, with a reasonable accommodation,
such as adequate lighting. It is not clear why the new conditions adversely
affect his ability to perform these tasks, if adequate lighting at his
workspace were provided. Determine what else he needs as well, to perform
the essential functions of the job. Consider contacting the Job
Accommodations Network for guidance. See http://www.jan.wvu.edu/.
The job description you provided does not indicate a need for him to be able
to actually distribute the t shirts. He should ask for the company to
provide him with adequate lighting at his workspace, as a reasonable
accommodation to his disability. He should (but is not required to) make
this request in writing, and keep a copy.
You wrote that:
The owner's response was to have the manager approach BW and ask BW if he
would voluntarily quit; otherwise, they will have to "let him go" as the
business will not be providing the same accommodations that were provided in
the previous workplace.
This response should be documented. I recommend that the letter requesting
the accommodation mention that he was asked to voluntarily quit, and that he
was told that if he did not do so, he would be fired. That will put them on
notice that there is a risk that they will later be found by the EEOC to
have violated his federal civil rights under title I of the ADA.
There is another advantage of requesting the accommodation in writing -
subsequent adverse actions taken by the employer may be perceived as
retaliation, and title I also prohibits retaliation for having exercised
one's rights.
The EEOC discusses retaliation at
http://www.eeoc.gov/types/retaliation.html.
It says:
An employer may not fire, demote, harass or otherwise "retaliate" against an
individual for filing a charge of discrimination, participating in a
discrimination proceeding, or otherwise opposing discrimination. The same
laws that prohibit discrimination based on race, color, sex, religion,
national origin, age, and disability, as well as wage differences between
men and women performing substantially equal work, also prohibit retaliation
against individuals who oppose unlawful discrimination or participate in an
employment discrimination proceeding.
In addition to the protections against retaliation that are included in all
of the laws enforced by EEOC, the Americans with Disabilities Act (ADA) also
protects individuals from coercion, intimidation, threat, harassment, or
interference in their exercise of their own rights or their encouragement of
someone else's exercise of rights granted by the ADA.
There are three main terms that are used to describe retaliation.
Retaliation occurs when an employer, employment agency, or labor
organization takes an adverse action against a covered individual because he
or she engaged in a protected activity... (continued at
http://www.eeoc.gov/types/retaliation.html).
Information about filing a charge of discrimination can be found at
http://www.eeoc.gov/charge/overview_charge_filing.html.
State law may also provide remedies.
Information about the EEOC offices in Texas is located at
http://www.eeoc.gov/dallas/area.html.
You may also want to take a look at http://www.advocacyinc.org/index.cfm.
By way of background, I enforced the ADA nationwide on behalf of the Justice
Department from 1992-2005, in the Disability Rights Section of the Civil
Rights Division, in Washington, D.C. (see www.ada.gov <http://www.ada.gov/>
).
Best of luck with this.
Marc
-----Original Message-----
From: blindlaw-bounces at nfbnet.org [mailto:blindlaw-bounces at nfbnet.org] On
Behalf Of BRIAN LANGLOIS
Sent: Tuesday, February 20, 2007 11:14 AM
To: NFBnet Blind Law Mailing List
Subject: Re: [blindlaw] input requested on disability issue
Off hand, I would suggest that the client receive training which would
minimize those perceived risks.
Many of us who are totally blind have worked in industrial settings which
are perceived as dangerous, but with the proper training, are quite
manageable.
Let me know if you need more information.
Brian L.
Haverhill, Massachusetts
----- Original Message -----
From: <dlmlaw at sbcglobal.net>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Tuesday, February 20, 2007 10:36 AM
Subject: [blindlaw] input requested on disability issue
BW is 25 years old. He has retinitis pigmentosa, is legally blind and has
previously received Social Security benefits as a result of his disability.
About one year ago, BW took a job with a local small business that makes,
and distributes, silk screen t-shirts. Taking the job resulted in his
losing the SS benefits. His job duties include counting, folding and
packaging shirts for distribution. When he started his job, accommodations
were made to assist in his ability to perform his duties; i.e., sufficient
lighting was provided and his work station was situated to reduce hazards of
movement.
Last week, the business moved into a different warehouse. The new workplace
is fraught with structural hazards and is very dimly lit in comparison to
the previous workplace.
Co-workers of BW have brought it to the attention of the business manager
and owner that the structural hazards are perilous for BW and that he cannot
perform his duties well in the dim lighting. The owner's response was to
have the manager approach BW and ask BW if he would voluntarily quit;
otherwise, they will have to "let him go" as the business will not be
providing the same accommodations that were provided in the previous
workplace.
Keeping in mind that Texas is an "employment at will" state, I would
appreciate all thoughts on this issue. Also, in which specific section of
the Americans With Disabilities Act will I find the provisions related to
requesting reasonable accommodations in writing?
Dan McBride
Attorney at Law
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Title I of the
ADA
applies here. See http://www.eeoc.gov/ www.eeoc.gov
. The local business to which you refer is covered if it has 15 or more employees. The EEOC has a technical assistance piece, specifically talking about people with vision disabilities, located at http://www.eeoc.gov/facts/blindness.html http://www.eeoc.gov/facts/blindness.html
.
The request for a reasonable accommodation need not be in writing, although it is advisable to put it in writing to avoid future debates about what was sought. A lawyer’s letterhead often saves months of debate.
The EEOC says:
How does a person with a vision impairment request an accommodation?
The request for a reasonable accommodation must be communicated to the employer. However, no magic words (e.g., "reasonable accommodation" or "
ADA
") are needed. The request may be made in plain English, orally, or in writing, and it may come from the applicant/employee or from a family member, friend, or other representative.
Here, in part, is what the EEOC technical assistance piece says about reasonable accommodations:
ACCOMMODATING INDIVIDUALS WITH VISUAL DISABILITIES
An accommodation is any modification or adjustment to a job or work environment that will permit a qualified individual with a disability to apply for a job, to perform a job's essential functions (i.e., fundamental duties), or to enjoy equal benefits and privileges of employment. Under the
ADA
, employers must provide reasonable accommodations to the known physical or mental limitations of persons with disabilities. Generally, an individual with a disability must request a reasonable accommodation before an employer will have an obligation to provide one. Once an accommodation has been requested, an employer should engage in an interactive process to determine whether an individual has a disability that requires an accommodation and, if so, must make a reasonable effort to determine the appropriate accommodation. Accommodations vary depending on the needs of the person with the disability.
You wrote that:
Co-workers of BW have brought it to the attention of the business manager
and owner that the structural hazards are perilous for BW and that he cannot
perform his duties well in the dim lighting. The owner's response was to
have the manager approach BW and ask BW if he would voluntarily quit;
otherwise, they will have to "let him go" as the business will not be
providing the same accommodations that were provided in the previous
workplace.
I recommend that the employee carefully assess the job under the new conditions. What are the essential functions of the job? You described the job as follows:
BW took a job with a local small business that makes,
and distributes, silk screen t-shirts. Taking the job resulted in his
losing the SS benefits. His job duties include counting, folding and
packaging shirts for distribution. When he started his job, accommodations
were made to assist in his ability to perform his duties; i.e., sufficient
lighting was provided and his work station was situated to reduce hazards of
movement.
It sounds like the essential functions include the ability to count t shirts, fold t shirts, and package t shirts, and to be able to do so quickly enough to have a certain number done in a certain time period. It sounds like he is qualified to do those tasks, with a reasonable accommodation, such as adequate lighting. It is not clear why the new conditions adversely affect his ability to perform these tasks, if adequate lighting at his workspace were provided. Determine what else he needs as well, to perform the essential functions of the job. Consider contacting the Job Accommodations Network for guidance. See http://www.jan.wvu.edu/ http://www.jan.wvu.edu/
.
The job description you provided does not indicate a need for him to be able to actually distribute the t shirts. He should ask for the company to provide him with adequate lighting at his workspace, as a reasonable accommodation to his disability. He should (but is not required to) make this request in writing, and keep a copy.
You wrote that:
The owner's response was to have the manager approach BW and ask BW if he would voluntarily quit; otherwise, they will have to "let him go" as the business will not be providing the same accommodations that were provided in the previous workplace.
This response should be documented. I recommend that the letter requesting the accommodation mention that he was asked to voluntarily quit, and that he was told that if he did not do so, he would be fired. That will put them on notice that there is a risk that they will later be found by the EEOC to have violated his federal civil rights under title I of the
ADA
.
There is another advantage of requesting the accommodation in writing – subsequent adverse actions taken by the employer may be perceived as retaliation, and title I also prohibits retaliation for having exercised one’s rights.
The EEOC discusses retaliation at http://www.eeoc.gov/types/retaliation.html http://www.eeoc.gov/types/retaliation.html
.
It says:
An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
In addition to the protections against retaliation that are included in all of the laws enforced by EEOC, the Americans with Disabilities Act (ADA) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the ADA.
There are three main terms that are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor organization takes an
adverse action
against a
covered individual
because he or she engaged in a
protected activity
….. (continued at
http://www.eeoc.gov/types/retaliation.html http://www.eeoc.gov/types/retaliation.html
).
Information about filing a charge of discrimination can be found at http://www.eeoc.gov/charge/overview_charge_filing.html http://www.eeoc.gov/charge/overview_charge_filing.html
.
State law may also provide remedies.
Information about the EEOC offices in
Texas
is located at http://www.eeoc.gov/dallas/area.html http://www.eeoc.gov/dallas/area.html
.
You may also want to take a look at http://www.advocacyinc.org/index.cfm http://www.advocacyinc.org/index.cfm
.
By way of background, I enforced the ADA nationwide on behalf of the Justice Department from 1992-2005, in the Disability Rights Section of the Civil Rights Division, in Washington, D.C. (see http://www.ada.gov/ www.ada.gov
).
Best of luck with this.
Marc
-----Original Message-----
From: blindlaw-bounces at nfbnet.org [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of BRIAN LANGLOIS
Sent: Tuesday, February 20, 2007 11:14 AM
To: NFBnet Blind Law Mailing List
Subject: Re: [blindlaw] input requested on disability issue
Off hand, I would suggest that the client receive training which would
minimize those perceived risks.
Many of us who are totally blind have worked in industrial settings which
are perceived as dangerous, but with the proper training, are quite
manageable.
Let me know if you need more information.
Brian L.
Haverhill
,
Massachusetts
----- Original Message -----
From: <dlmlaw at sbcglobal.net>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Tuesday, February 20, 2007 10:36 AM
Subject: [blindlaw] input requested on disability issue
BW is 25 years old. He has retinitis pigmentosa, is legally blind and has
previously received Social Security benefits as a result of his disability.
About one year ago, BW took a job with a local small business that makes,
and distributes, silk screen t-shirts. Taking the job resulted in his
losing the SS benefits. His job duties include counting, folding and
packaging shirts for distribution. When he started his job, accommodations
were made to assist in his ability to perform his duties; i.e., sufficient
lighting was provided and his work station was situated to reduce hazards of
movement.
Last week, the business moved into a different warehouse. The new workplace
is fraught with structural hazards and is very dimly lit in comparison to
the previous workplace.
Co-workers of BW have brought it to the attention of the business manager
and owner that the structural hazards are perilous for BW and that he cannot
perform his duties well in the dim lighting. The owner's response was to
have the manager approach BW and ask BW if he would voluntarily quit;
otherwise, they will have to "let him go" as the business will not be
providing the same accommodations that were provided in the previous
workplace.
Keeping in mind that
Texas
is an "employment at will" state, I would
appreciate all thoughts on this issue. Also, in which specific section of
the Americans With Disabilities Act will I find the provisions related to
requesting reasonable accommodations in writing?
Dan McBride
Attorney at Law
----------------------------------------------------------------------------
----
> _______________________________________________
> blindlaw mailing list
> blindlaw at nfbnet.org
> http://www.nfbnet.org/mailman/listinfo/blindlaw
>
_______________________________________________
blindlaw mailing list
blindlaw at nfbnet.org
http://www.nfbnet.org/mailman/listinfo/blindlaw
More information about the blindlaw
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