Question:
Hey, guys (CW, Dave, and Tim LPN), this is good stuff. Thanks Mel – Hide quoted text — Show quoted text – Here is my experience with the ADA as a "professional employer". 1. If you don’t have a "visible" disability, it is a bitch of a case to try to claim discrimination. 2. With a "mental disorder" it is very easy for an employer to claim that you are incapable of adequate performance despite any accomodations they provide. IMO, and I’m not a lawyer so I’ll assume you know more than me about this, the best bet is the union grievance. CW, I agree that it is more difficult to prove a case of mental disability. Generally, you wind up with a "battle of the experts" where the party with the more highly credentialed (and more expensive) doctor often wins. But I have seen cases where a sharp attorney has won a case using no one other than the employee’s treating doc. But I agree with you. From a legal standpoint, its always better to lose your leg than your mind. : ) With regard to the accomodation issue, the employer cannot unilaterally decree that an accomodation is not possible until the employee’s condition is investigated and both employer and employee engage in an "interactive process" to determine whether an accomodation is possible. So while an employer can claim that the employee cannot perform the job, I wouldn’t say that making this decision is "very easy". To be honest, I have defended claims of both physical and mental disability discrimination and the mental cases are, IMO, the toughest just because the might be no "concrete" injury or condition. With regard to what the poster (was it Juliet?) should do, suit vs. grievance, I didn’t really want to suggest either since I don’t know much about the case. Just wanted to explain her options. Sooooooo, you’re a professional employer, eh? Need a good lawyer??? : ) Dave
"Bo don’t know diddly" and neither do I. IMO, YMMV, I’m not a doctor.
Response:
Just wanted to point out something. I’m not a professional employer or lawyer, just an professional employee. CW stated in his previous post that "If you don’t have a ‘visible’ disability, it is a bitch of a case to try to claim discrimination." and he also stated "With a ‘ mental disorder’ it is very easy for an employer to claim that you are incapable of adequate performance despite any accomodations they provide." Well if the employer has said that the person can’t be reasonably accommodated because of the "mental disorder", this should be good enough evidence for the employee to use against the employer for discrimination. Right? If the person can’t be accommodated, the employer should have to pay disability. It seems that it’s going to have to be one or the other. Did that make any sense? Mel "Bo don’t know diddly" and neither do I. IMO, YMMV, I’m not a doctor.
Response:
Well if the employer has said that the person can’t be reasonably accommodated because of the "mental disorder", this should be good enough evidence for the employee to use against the employer for discrimination. Right? If the person can’t be accommodated, the employer should have to pay disability. It seems that it’s going to have to be one or the other.
Mel, "Disability" under an insurance policy is different from being "disabled" under the ADA. If you become "disabled" and have a disability policy, you are absolutely entitled to coverage. Some employers provide disability policies while others do not. Generally, it is the carrier, not the employer, who makes the disability decision. The ADA defines a disability as "a condition that substantially limits a major life function". Examples are walking, eating, working, breathing, etc. However, to be protected under the Act, you must be a"qualified individual with a disability". This means that the disabled individual must still be able to perform the essential functions of his/her position either with or without a reasonable accommodation by the employer. Sometimes, it is simply not possible to make the required accommodation. An example is where a surgeon suffers nerve damage causing uncontrolable shaking. Where an employee is disabled to the point where he/she cannot be accommodated (or where the accommodation would cause undue hardship on the employer), the employer can demote, transfer, or terminate the employee without violating the Act. I hope this was helpful (or did I throw in too much legal crap). Dave I’m not an ambulance chaser. I’m usually there before the ambulance.
Response:
I work for a major telecommunications company. They DO NOT seem to understand my panic attack/depression disability. At one time they suspended me for three weeks pending investigation of my illness. They send me to a psychiatrist and psychologist of their choice who both confirmed I had post traumatic stress disorder and problems. After that they took me back w/pay. (I belong to a union.) Anyway, my immediate supervisor had the same problem. He was out for seven months and they eventually fired him. (He ran out of FML.) I’m out right now… I had a bad panic attack on Monday. I started feeling calm by evening, but in order for my absence to be counted under FMLA I have to be out a minimum of three days. So I’m sitting here ’til I can go back Friday. The company has a reputation for spying on people out on sick leave. They have had people videotaped in situations they shouldn’t have been in and were fired. One time (while out for pregnancy) I was suspended because I was caught at a casino/hotel with my mom and wasn’t home in bed. Now every time I’m out for depression/anxiety… I sit here in my house, terrified they’re checking up on me. The state fair is in town, I have a 21 month old daughter. I’d love to take her, I think it would HELP my depression to get out and take her there but I’m so scared I’ll be seen there I hide out, I’ve been in my house since Monday except for a trip across the street to the grocery store. I’m getting depressed holed up in here. I don’t know what to do…. Juliet in Las Vegas Juliet Violette http://www.mclv.net/emerald/index.htm
Response:
sounds like you need an attorney. get the yellow pages out and find out if you have a case.( like harrassment or something) Are you an IBEW member? do you attend your union meetings? discuss this with other members and find out how they dealt with it.I’m sure you’re not the first one this has happened to.
Response:
sounds like you need an attorney. get the yellow pages out and find out if you have a case.( like harrassment or something) Are you an IBEW member?
<some snipage for space DID SOMEONE ASK FOR A LAWYER!?! (poof) TAA DAA As a union member, you have two options. Because it sounds like you are disabled within the meaning of the Americans with Disabilities Act, you have the right to file a private action in court. However, before you do so, you must file a Charge of Discrimination with the EEOC or the local agency (such as the state or county department of human or civil rights). Doing this will 1) put your employer on notice that you believe you have been discriminated against and, 2) protect you since it it against the law to terminate an employee in retaliation for their filing a charge. The folks at the EEOC can assist you in filing the Charge or you can go to a private attorney who can help you. The EEOC or state agency will then begin to investigate the charge. It is unlikely that they will actually file suit on your behalf, but they can be helpful in mediating between yourself and your employer. Once they conclude their investigation, they will issue a Notice of Right to Sue and you can go off to court. You can also request a Right to Sue at any time during the investigation. As a union member, you can also file a grievance. Most collective bargaining agreements have anti-discrimination provisions in them and you can grieve that the employer violated the CBA. There will then be a series of meetings to resolve the grievance and, if unsuccessful, the union can take it to arbitration. The problem here is that usually only the union can advance the grievance to arbitration. They can, at any time, say that they are not pursuing it anymore. If this happens, your grievance is dead and your only recourse is to file an Inadequate Representation suit against the Union (bad idea). In addition, the relief you can get through arbitration is generally much less than what you can get in court. Sorry this is so long. Please feel free to e-mail me if you would like to discuss the matter. Dave I’m not an ambulance chaser. I’m usually there before the ambulance.
Response:
Get a note from your doc saying that getting out is good for your depression. Bring up ADA (Americans with Disabilities Act) scares the hell out of them, not the fact that they’ll owe you back pay, but that the labor dept. usually fine the hell out of them. Tim;) – Hide quoted text — Show quoted text – I work for a major telecommunications company. They DO NOT seem to understand my panic attack/depression disability. At one time they suspended me for three weeks pending investigation of my illness. They send me to a psychiatrist and psychologist of their choice who both confirmed I had post traumatic stress disorder and problems. After that they took me back w/pay. (I belong to a union.) Anyway, my immediate supervisor had the same problem. He was out for seven months and they eventually fired him. (He ran out of FML.) I’m out right now… I had a bad panic attack on Monday. I started feeling calm by evening, but in order for my absence to be counted under FMLA I have to be out a minimum of three days. So I’m sitting here ’til I can go back Friday. The company has a reputation for spying on people out on sick leave. They have had people videotaped in situations they shouldn’t have been in and were fired. One time (while out for pregnancy) I was suspended because I was caught at a casino/hotel with my mom and wasn’t home in bed. Now every time I’m out for depression/anxiety… I sit here in my house, terrified they’re checking up on me. The state fair is in town, I have a 21 month old daughter. I’d love to take her, I think it would HELP my depression to get out and take her there but I’m so scared I’ll be seen there I hide out, I’ve been in my house since Monday except for a trip across the street to the grocery store. I’m getting depressed holed up in here. I don’t know what to do…. Juliet in Las Vegas Juliet Violette http://www.mclv.net/emerald/index.htm
– Always borrow money from a pessimist, they don’t expect it back.
Response:
DID SOMEONE ASK FOR A LAWYER!?! (poof) TAA DAA
<snipped alot, read Dave’s post Dave
Dave, Here is my experience with the ADA as a "professional employer". 1. If you don’t have a "visible" disability, it is a bitch of a case to try to claim discrimination. 2. With a "mental disorder" it is very easy for an employer to claim that you are incapable of adequate performance despite any accomodations they provide. IMO, and I’m not a lawyer so I’ll assume you know more than me about this, the best bet is the union grievance. I think that was your point too, but since you are a lawyer I could understand it<g CW
Response:
Here is my experience with the ADA as a "professional employer". 1. If you don’t have a "visible" disability, it is a bitch of a case to try to claim discrimination. 2. With a "mental disorder" it is very easy for an employer to claim that you are incapable of adequate performance despite any accomodations they provide. IMO, and I’m not a lawyer so I’ll assume you know more than me about this, the best bet is the union grievance.
CW, I agree that it is more difficult to prove a case of mental disability. Generally, you wind up with a "battle of the experts" where the party with the more highly credentialed (and more expensive) doctor often wins. But I have seen cases where a sharp attorney has won a case using no one other than the employee’s treating doc. But I agree with you. From a legal standpoint, its always better to lose your leg than your mind. : ) With regard to the accomodation issue, the employer cannot unilaterally decree that an accomodation is not possible until the employee’s condition is investigated and both employer and employee engage in an "interactive process" to determine whether an accomodation is possible. So while an employer can claim that the employee cannot perform the job, I wouldn’t say that making this decision is "very easy". To be honest, I have defended claims of both physical and mental disability discrimination and the mental cases are, IMO, the toughest just because the might be no "concrete" injury or condition. With regard to what the poster (was it Juliet?) should do, suit vs. grievance, I didn’t really want to suggest either since I don’t know much about the case. Just wanted to explain her options. Sooooooo, you’re a professional employer, eh? Need a good lawyer??? : ) Dave I’m not an ambulance chaser. I’m usually there before the ambulance.
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