[author: Melissa Burdorf, XpertHR Legal Editor]
The Equal Employment Opportunity Commission (EEOC) filed a disability discrimination lawsuit against both Staffmark Investment LLC and Sony Electronics, Inc., claiming that both companies violated the Americans with Disabilities Act (ADA) when they terminated Dorothy Shanks, an employee with a prosthetic leg, because of her disability.
According to the complaint, Staffmark, a staffing agency, assigned Shanks to work on a temporary job for Sony. All of Shanks's supervisors were Sony employees. On her second day of work, Shanks was advised by Staffmark that she was being taken off the Sony assignment because "they" did not want anyone bumping into her. Staffmark purportedly assured Shanks that she would be placed on another assignment where she could sit. Staffmark never sent Shanks to another job assignment even though Shanks repeatedly called looking for work.
While employers can never isolate themselves from disability discrimination lawsuits, employers can lessen the chance of a suit if they keep the following things in mind about the ADA:
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Employment agencies, such as Staffmark will not avoid liability for discrimination under the ADA by claiming they are following an employer/client's orders (in this case Sony's orders), nor can employers (such as Sony) avoid liability by saying the employee was really working for the employment agency.
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The ADA applies to employers, including employment agencies that employ 15 or more employees during a 20-week period.
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Both staffing firms and their clients have joint responsibilities under the ADA to their contingent workers.
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Many more employees will fall within the ADA's definition of disability (a physical or mental impairment that substantially limits one or more of the major life activities of an individual; a record of such an impairment; or being regarded as having such as impairment).
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In this case, it is likely that Shanks physical impairment (leg amputee) would be considered a disability under the ADA as it substantially limits that major life activity of walking.
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Employers should be careful not to make generalized assumptions about whether an employee has a disability - an employee can be protected under the ADA if an employer treats or "regards" the employee as if he or she has a disability, even if they do not. Gossip or presumptions about an employee's medical condition can form the basis of a regarded as claim.
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To be protected under the ADA, an employee must not only have a disability that substantially limits one of life's major activities, but he or she must also be qualified (meet the skill, experience, education and other job-related prerequisites) for the position.
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For example, in this case, if Shanks presumably met the prerequisites for the position, the next step would be to see if she can perform the fundamental job functions - thus - it might be useful to see whether standing for prolonged periods is an essential function of this job. If so, the next step would be to see if Shanks could stand for a prolonged period, with or without an accommodation.
Because the EEOC has a current focus on disability discrimination, employers should take action to comply with the ADA immediately.
Additional Resources
Employee Management > Disabilities (ADA)
How to Determine if an Employee Is Disabled
How to Prevent Disability Discrimination Claims
Discrimination Policy
What Supervisors Need to Know About the ADA - Supervisor Briefing
