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Millions of Americans with diseases or impairments such as diabetes, epilepsy, heart disease, cancer and carpal tunnel syndrome will be protected from job discrimination under a new disability rights measure set to become law this week. The bill, five years in the making, won final passage in Congress last week, and President Bush said he would sign it.
The measure overturns a series of Supreme Court rulings that sharply limited who was covered by the Americans With Disabilities Act. When it was first passed in 1990, Congress said the anti-discrimination law protected anyone with a "physical or mental impairment" that "substantially limits" them when engaging in a major life activity.
The Supreme Court went ahead and interpreted the law to apply only to people who have disabilities above and beyond common impairments such as hearing loss or a medical condition that can be treated and controlled by medication.
In 1999, the Supreme Court threw out a disability discrimination claim from a truck mechanic in Kansas who was fired because he had unusually high blood pressure. The court ruled that he did not have a disability because medication brought his blood pressure under control.
Due to how the Supreme Court was interpreting the ADA, the law was putting disabled workers in a Catch-22. It allowed employers to say that the worker were too disabled to do the job but not disabled enough to protected by the ADA. It was an absurd interpretation that defeated the spirit and intention of the law and was creating absurd and unjust results. Based on the Court's rulings, the ADA was simply failing to protect disabled workers from employment discrimination.
Thankfully the law is being changed to ensure that all disabled workers are protected from job discrimination.
Bullying in the Connecticut workplace is not illegal. We receive many phone calls and emails from Connecticut workers who are being verbally abused and bullied in the office and believe that they have a legal case against their employer Unfortunately, such abuse is not illegal and there is no legal case. There is no Connecticut or federal law to protect an employee from verbal abuse or bullying. The exception to this rule is if the abuse and bullying is being motivated by unlawful discrimination on the basis of race, national origin, gender, disability, religious background, sexual orientation or age. If this is the case, then the employee has legal remedies. But, if your boss or supervisor is simply an equal opportunity bully, you, as the employee, can complain to your employer about it but your employer is under no legal obligation to correct it. Interestingly, our elected Connecticut representatives are well aware of the problem and this "loophole" in the law. Legislation has been proposed to outlaw workplace bullying but it has never been passed.
A work environment may be found to be "hostile" when managers or co-workers are engaging in any discriminatory behavior ( i.e., behavior based solely on race, sex, religion, national origin, physical disability and age intimidation) or intentional ridicule and insult which is sufficiently severe or pervasive enough to alter the complaining worker's conditions of employment and which create a real "abusive working relationship." The harassment must be abusive objectively, as oppose to subjectively; and the injured worker who files the complaint also must experience it as abusive. "Hurt feelings" are not necessarily the same as experiencing objective "abuse in the workplace."
Factors that competent federal and state courts may use to determine whether or not the workplace environment is sufficiently hostile to justify bringing a hostile environment lawsuit will include some or all of the following facts:
- The frequency of the challenged conduct
- The severity of the challenged conduct
- Whether the challenged conduct is physical, verbal or both
- Whether the challenged conduct unreasonably interferes with a worker's job performance
- The effects that the challenged conduct has on the worker(s) or victims.
Contact our attorneys for a more detailed explanation of what is a hostile work environment or for an evaluation of your own potential hostile work environment case.
Claims of employment discrimination are evaluated under the burden shifting analysis set forth in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990). See Mele v. Hartford, supra, 270 Conn. at 766, 855 A.2d 196. "Section 31-290(a) prohibits an employer from discharging or otherwise discriminating against an employee because the employee had filed a claim for workers' compensation benefits or otherwise exercised her rights under the act." Id., at 767, 855 A.2d 196. "The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination.... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination.... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions.... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.... The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the [fact finder] ... that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Internal quotation marks omitted.) Id., at 768, 855 A.2d 196. The plaintiff, however, bears the ultimate burden of proving that the defendant intentionally discriminated against her. Id., at 768-69, 855 A.2d 196.
For a further explanation on proving a connecticut employment discrimination case, contact our attorneys.
Vincent Sabatini is pleased to announce that he recently obtained a settlement for a client whose husband had past away. Prior to his death, our client and her husband refinanced their home with Wells Fargo Bank. The home equity line was in the amount of $137,000.00. They purchased credit life insurance with Centerioum Life an affilate of Wells Fargo. Part of the application process required each of them to fill out a medical form indicting whether or not they had treatment for cancer or heart disease or conditions related to each. Each said no. Shortly after the loan went into effect, the husband died. The wife made a claim against the life insurance company to pay the off the loan balance of approximately $134,000.00. The company refused relying on a "stray" medical report from a note by a resident from St. Francis Hospital that the husband "had a history of cornary disease". The widow denied this. Attorney Vincent Sabatini was hired. The case was investigated the matter. Certain recrods were unable to be obtained without court intervention. So, a Bill of Discovery was filed against Wells Fargo and Centerion. A Bill of Discovery is a procedural tool available in Connecticut satet court. The tool allows a person to obtain a court order requiring another individual or company to disclose certain evidence in order for the person to determine if he or she has a legally viable claim. The bill of discovery was granted and the recrods were obtained. The firm then intervied the decedent's primary care physicain. This physicain was shown the " medical note" in question. The physican stated that the note had to be in error as his records indicated the husband did not have the conditions indicated in the report. Attorney Sabatini tracked down the surgeon at St. Francis. Attorney Sabatini got the surgeon to reveiw the records. Upon review, the surgeon concluded that the "note" was in error. The surgeon said that the resident made a mistake. The surgeon agreed to
write a report indicating the error and correcting the note. Upon receipt of the corrected medical recrod, the law firm filed suit in Hartford against Wells Fargo and Centerion. General Counsel from Wells contacted our firm and indicated that the defendants were interesting in settling. After two months of settlement talks, the case was settled for exactly want the client wanted and deserved. Wells Fargo paid off the note in full; reimbursed to the wife overpayments made since her husband died and paid all attorneys' fees and court costs.
Two new categories of FMLA leave were created by a 2008 amendment:
- Injured Service Member Leave. Employees who are the spouse, parent, child or "next of kin" of a service member who suffers a serious injury or illness while on active duty may take up to 26 weeks of FMLA leave during the 12 month period immediately after the injury.
- Leave for "Qualifying Exigency." Employees with a spouse, parent or child who is on active duty or has been called to active duty may take up to 12 weeks of FMLA leave when a "qualifying exigency" is experienced.
What is qualifying exigency? It is a good question because Congress chose not to define it. The department of labor has indicated that "qualifying exigency" may include things such as making arrangements for childcare, making financial and legal arrangements, attending counseling relating to the active duty of the service member, or attending to farewell or arrival arrangements for the service member.
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