I. INTRODUCTION
The Equal Employment Opportunity Commission (EEOC) and judicial expansion of the direct threat of harm to self or others defense has strengthened the employee’s position under the Americans with Disabilities Act (ADA) by applying ration standards to this defense. If an employer has false assumptions about a prospective employee’s capabilities because of his/her disability, then the employer should have the burden of proving why the employee would be a direct threat to themselves of others.
II. THE AMERICAN WITH DISABILITIES ACT (ADA)
The purpose for the Americans with Disabilities Act is to assist people with disabilities find their place in society so they may use their skills to function and contribute, without prejudice. In 2008, the ADA Amendments Act was passed to expand the definition of disability and includes five titles. The first of these titles is Employment (Title I). Title I require, “covered employers to provide reasonable accommodations for applicants and employees with disabilities and prohibits discrimination on the basis of disability in all aspects of employment.” Under this title however, it does allow the employer to claim that an individual’s disability may cause a direct threat to themselves, or others.
Regulations issued by the EEOC implementing the ADA are specifically intended to, “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent, enforceable standards addressing discrimination.” These regulations not only define “Disability” and what constitutes a “Qualified Individual with a Disability”, but also set the qualification standards for tests and other selection...
... middle of paper ...
...upport him and he would fall frequently”. They also stated that Bradley was “very wide when using his crutches, making him an obstacle to other people.” The EEOC’s expert stated Bradley would not pose a threat if using a wheelchair. Wal-Mart never explained whether or not a wheelchair would pose a threat. Wal-Mart’s expert witness admitted Bradley would be more stable in a wheelchair, and would be less of a threat than if he were on crutches. After Wal-Mart attempted to prove a “direct threat” defense, The Eighth Circuit court held that Wal-Mart still failed to prove that Bradley was a direct threat to the safety of himself, or others, and reversed the grant of summary judgment by the district court. The court’s opinion in this case went by the same reasoning as most courts that “direct threat” is an affirmative defense that the defendant-employer must prove.
The Americans With Disabilities Act (ADA) protects individuals with disabilities from discrimination based upon their disability (Bennett-Alexander, 2001). The protection extends to discrimination in a broad range of activities, including public services, public accommodations and employment. The ADA's ban against disability discrimination applies to both private and public employers in the United States.
Belanger v. Swift Transportation, Inc. is a case concerning the qualified privilege of employers. In this case, Belanger, a former employee of Swift Transportation, sued the company for libel in regard to posting the reason for his termination on a government data website accessible to other potential employers. Swift has a policy of automatic termination if a driver is in an accident, unless it can be proved that it was unpreventable. When Belanger rear ended another vehicle while driving for Swift, the company determined the accident was preventable, while Belanger maintained it was not. Upon his termination, Swift posted on a database website for promoting highway safety that he was fired because he “did not meet the company’s safety standards,” (Melvin, 2015, p. 265), causing Belanger to sue the company.
Moran, John Jude. "Disability Discrimination." Employment Law: New Challenges in the Business Environment. Upper Saddle River, NJ: Prentice Hall, 2014. 413-14. Print.
A case that has been presented to the law that is similar to the Tucker vs. Walgreen Company class action suit is the EEOC vs. Walgreen Company. Although this case was presented as disability discrimination, it is still filed
Facts: In the above case, employee Joel Hernandez was tested positive for cocaine. With the fear of being dismissed from his job, he acknowledged that his behaviour violated petitioner Raytheon Company's workplace conduct rules, and obviously, was pressed to quit his job. Also, the reason for the employee resignation was also based on the notion that had he not resigned it would be petitioner who would eventually fired him from his work. After more than two years of rehabilitation, petitioner applied to be re-employed alleging on his application that the following had previously hired him. In his application, he also attached letters coming from, his pastor about his active church participation and from an Alcoholics Anonymous counsellor about his regular visit and attendance at meetings and his immediate recovery. When a HR employee of petitioner reviewed Hernandez application, she then rejected his application on the ground that petitioner has a policy against rehiring employees who are terminated for workplace wrongdoing. According to the HR employee, she did not know that that employee was a former drug addict when she rejected his application. As a result to this development, Hernandez instituted a suit and filed a charge with the Equal Employment Opportunity Commission (EEOC), averring that his rights has been violated in consonant with the Americans with Disabilities Act of 1990 (ADA). Therefore, the Equal Employment Opportunity Commission (EEOC) as a consequence, gave a go signal to the respondent and issued a right-to-sue letter and the right to file an ADA action. Following this, respondent established an Americans with Disabilities Act of 1990 (ADA) action, alleging that petitioner did not act on his application for the reason that he has a record of drug addition and/or because he was known before as being a drug user. On the other hand, petitioner responded by filing a summary judgement motion. This resulted to respondent's argumentation in the alternative that in the case that petitioner sought for a neutral no-rehire policy in his case, it is still sufficient to a violation of the Americans with Disabilities Act of 1990 (ADA) because of that policy's disparate impact.
The movement continues to make great strides towards the empowerment and self determination ("Disability rights movement," 2005, p. 3). On the other hand, it has not completely broken down barriers that continue to create the dynamics of oppression among such individuals. For instance, WIOA can be harmful to individuals with disabilities because there are still societal prejudices and biases associated with the stereotypical portrayal of people with disabilities and WIOA has played a role in it. For example, WIOA networks with employers to hire individual’s with disabilities and place them in conventional settings, where they work with others who have disabilities, for example, Walgreen’s and in fact, these participating organizations have also increased their pay. In my opinion, individual’s with disabilities should be able to work with individuals who are not disabled, as well. Furthermore, pay for those individuals who are still considered to be in “sheltered” work programs have not received an increase in pay. Additionally, according to my studies, in 2012, less than 30 percent of Florida’s civilians with disabilities between age 18-64 living in the community were employed. There is a greater priority focused on young people who are disabled. This is an additional issue in my opinion which can be considered discrimination, because, the focus leaves out middle aged individuals as well as,
The Americans with Disabilities Act (ADA) is probably the most comprehensible formulation of disabled individuals’ rights. The ADA officially became a law July 26, 1990 signed by President Bush. To understand the impact of the ADA, one must understand that almost every individual or family is touched by an experience of disability at one time or another. The necessities for state and local government, transportation, employment, and telecommunications can latently benefit everyone. An important point to understand is unlike people who have experienced discrimination based...
"The Americans With Disabilities Act is one of the most significant laws in American History. The preamble to the law states that it covers 43,000,000 Americans."(Frierson, p.3) Before the Americans With Disabilities Act(A.D.A.) was passed, employers were able to deny employment to a disabled worker, simply because he or she was disabled. With no other reason other than the persons physical disability were they turned away or released from a job. The Americans With Disabilities Act prevented this type of discrimination by establishing rules and regulations designed to protect persons with physical disabilities. With a workforce made up of 43,000,000 people, it is impossible to ignore the impact of these people. The Americans With Disabilities Act not only opened the door for millions of Americans to get back into the workplace, it is paving the road for new facilities in the workplace, new training programs and creating jobs designed for a disabled society.
The Disability Discrimination Act of 1995 set out to end the discrimination people with disabilities encounter. The Act gave disabled people the right to employment, access to goods, facilities, and services and the right to buy and rent land and property. These rights came into force in December 1996, making treating a disabled person less favorably than an able-bodied person unlawful. Further rights came into force in October 1999, including the idea that service providers should consider making reasonable adjustments to the way they deliver their services so that people with a disability can use them. (The DDA...) However, despite these
Family Dollar Stores of Colo., Inc., as support to dismiss Plaintiff’s claim, arguing that the court in Garcia rejected the deterrence theory. (ECF No. 71 at 6). This is an incorrect interpretation. The court did not reject the theory, it assumed, for the purposes of the order, that the Tenth Circuit would adopt this theory and then went on to explain why the plaintiff could not even satisfy that broader standing theory. Garcia v. Family Dollar Stores of Col., Inc., No. 16-cv-02348-RM-KLM, 2017 WL 3498955, at *3 (D. Colo. Aug. 16, 2017). Furthermore, this instant case is distinguishable from Garcia in several respects. First, the alleged discriminatory behavior in Garcia came from employees at the Pueblo Family Dollar store. Id., at *6. Here, the alleged discrimination comes from Denver’s ticketing practices and the physical condition of Red Rocks. Second, in Garcia the plaintiff “fail[ed] to plausibly allege that discriminatory conditions are continuing at any Family Dollar store.” Id. The two complained of employees no longer worked at the Pueblo Family Dollar store and the plaintiff could not make any showing that the behavior of those employees was a corporate policy. In this case, Plaintiff has alleged that the ticketing practices are still in place and that Red Rocks has not made any changes to their seating arrangements or ramps. Finally, in Garcia the plaintiff only alleged he had a fear of returning to any Family Dollar because he feared he
The Americans with Disabilities Act, TITLE 42 - THE PUBLIC HEALTH AND WELFARE U.S.C. § 12101 - 12117 et seq. (Author 1990 ).
The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors (US Department of Justice, 2011...
The Americans with Disabilities Act (ADA) is one of the most significant laws in American History. Before the ADA was passed, employers were able to deny employment to a disabled worker, simply because he or she was disabled. With no other reason other than the person's physical disability, they were turned away or released from a job. The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. The act guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, State and local government services, and telecommunications. The ADA not only opened the door for millions of Americans to get back into the workplace, it paved the road for new facilities in the workplace, new training programs, and created jobs designed for a disabled society (Frierson, 1990). This paper will discuss disabilities covered by the ADA, reasonable accommodations employers must take to accommodate individuals with disabilities, and the actions employers can take when considering applicants who have disabilities.
It is quite certain to say that discrimination can be deadly and can deprive a person from living a normal and happy life. Especially those with disability. Therefore, it is important for discriminatory practices to be avoided and dealt properly ones reported.. If these effects are dealt properly ,long term effects can be eliminated.
In the assigned hypothetical scenario, John was dismissed and believes he was discriminated against. By understanding the different types of discrimination and the legal recourse of individuals discriminated against organizations can better prepare them selves to avoid similar situations with their employees.