Angela Alioto Law Group

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Sunday, May 09, 2010

Fired For Having the Cancer Gene?

No employer would possibly let go an employee with a stellar record simply because of genetic test results. Or would they?

Pamela Fink of Hartford, Conn., says that's exactly what happened to her. Fink, 39, claims that her supervisors at MXenergy practiced disability discrimination when they first demoted her and eventually dismissed her after she underwent a voluntary double mastectomy. Fink went through the grueling operation at the suggestion of physicians who found that she possesed a gene implicated in breast cancer. Pamela Fink and her two sisters each were tested in 2004 and all three tested positive for the breast cancer gene, BARC2. Fink's sisters were both diagnosed with cancer and both survived after receiving treatment.

MXenergy, a natural gas and electricity supplier, previously had promoted Pamela Fink, who had received glowing reviews during her time at the company. Fink claims that MXenergy's attitude changed, however, once she informed her bosses of her test results. According to her complaints filed with the Equal Opportunity Employment Commission and the Connecticut Commission on Human Rights, she was relieved of her duties as public relations director at MXenergy in March about a year after her double mastectomy. Fink was shocked that the consultant MXenergy had hired while she was in recovery was now her boss when she returned back to work. Her title, most of her responsibilities and her office all had been taken from her after the first surgery. Six weeks after her second mastectomy, Fink was fired and escorted out of the MXenergy office building.

Both commissions are interested in Fink's case because it is the first known case in the country to be filed based on the Federal Genetic Information Nondiscrimination Act, which went into effect last November. The law strictly prohibits health care providers as well as employers from practicing discrimination based on a person's genetic information. Fink's lawyer claims that under the new laws, MXenergy's treatment of her was absolutely unlawful. MXenergy denies the allegations and has yet to release a formal statement related to Fink's charges.

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    Tuesday, May 04, 2010

    Detective Awarded $225,000 in Disability Discrimination Case

    It was English poet, painter and thinker William Blake who once said, "It is easier to forgive an enemy than to forgive a friend." But it is Baltimore police detective William Blake (no relation) who has to put these words into action. He was awarded $225,000 by a jury last week after suffering disability discrimination doled out by his friends at the police department.

    Detective Blake, 40, suffered a seizure in 1996 while on the job. A proud officer since 1987, Blake returned to his duties and has lived seizure-free since the incident in 1996. It was the Baltimore Police Department who had a hard time forgiving and forgetting Detective Blake's seizure, however. In 2006, a decade after the seizure took place, Blake was ordered to submit to neurological and fitness tests despite other evidence that the officer had been healthy. Col. Terrence B. Sheridan ordered that Blake be given an electroencephalogram to measure electrical activity in the brain along with other tests to determine if he was fit to serve as a police officer. The problem with the ordered fit-tests? They violated the Americans with Disabilities Act which penalizes discrimination against anyone with a disability.

    Blake took his friends at police department to court.  According to the lawsuit, Sheridan's order for the tests came on the heels of a colleague who was forced into retirement by Sheridan because he too had suffered from "potential seizures." That officer, Phillip Crumbacker, challenged Sheridan's decision. Human resources officers also questioned the order for Blake's electroencephalogram as he had already been declared fit for duty.

    A six-day trial and hours of testimony later, a federal jury found that Blake was indeed discriminated against. The detective, who still works for the police department, was awarded $225,000 in damages. Meanwhile, the U.S. Department of Justice announced in January that it was conducting a full-scale investigation into whether Baltimore County officials violated the rights of other employees under the ADA.

      Tuesday, March 23, 2010

      Discrimination in Temporary Employment Agencies

      A startling number of discrimination cases are popping up in temporary employment agencies across the country. The reason?  It is hard to say, but the general thought is that even though these agencies operate on a high-turnover basis and tracking cases of discrimination within them can be nearly impossible, some cases have come to light that point to a larger problem.

      Just this week, Melville, a New York-based Olsten temporary agency, settled a lawsuit that started in their Lacrosse, Wisconsin, branch. The United States Equal Employment Opportunity Commission alleged that Olsten Staffing Services blatantly denied Zachary Schaefer a temporary position at Main Street Ingredients, a local food manufacturer, because Schaefer is deaf. The EEOC claimed that the ability to hear was not a clear job requirement, thus making Schaefer a viable candidate for the temporary position. The agency has agreed to pay Schaefer $70,000 in damages and $5,000 in lost pay. The company will also offer their employees training on the Americans with Disabilities Act requirements.

      It seems some cases where people of color, with disabilities, or of a certain age have been denied jobs by temporary agencies are starting to be better reported. Just the same, well-known companies and trusted businesses are also being taken to court for alleged discrimination lawsuits.

      Billion-dollar Internet mega-market eBay is also being sued by a deaf person.  Melissa Earll of Nevada, Montana, claims that due to her disability she is unable to communicate vocally by telephone and therefore is unable to verify her identity with eBay. The federal lawsuit filed this past Tuesday targets eBay’s seller’s registration system that requires would-be sellers to identify themselves via telephone. The lawsuit says that the current system violates the California Disabled Person Act as it excludes deaf and hard-of-hearing patrons from equal opportunities. In addition to damages, the suit is seeking to reform eBay’s current registration system so that people with disabilities can participate as sellers like everyone else.

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        Thursday, March 11, 2010

        Bank Pays Settlement in Disability Discrimination Case

        For people with disabilities, the reality of workplace discrimination is an ongoing one. Last week a Winston-Salem bank was ordered to pay $24,000 to settle a disability discrimination lawsuit brought on by the United States Equal Employment Opportunity Commission (EEOC).  Branch Banking and Trust was slapped with the settlement after hearing-impaired employee Linda Hewett was denied the reasonable accommodation she was entitled to under the Americans with Disabilities Act. Hewett was denied a transfer that she was qualified for, and as a result she was forced to resign in 2003. Hewett suffers from severe, progressive hearing loss, and it was making the position she worked in at the bank impossible. After being denied the transfer to other positions in which she could function more successfully because her hearing loss would be less of a factor, Hewett quit Branch Banking and Trust, the country’s 10th largest financial holdings company.   

        The case was scheduled to go to trial earlier this year, but the parties involved reached an agreement during a court-hosted settlement conference. As part of the settlement agreement that includes the payment of $24,000 in compensatory damages to Linda Hewett, Branch Banking and Trust must also take other actions to prevent disability discrimination from happening in the future. The bank will provide antidiscrimination training for the staff of its entire banking network in its Southeast Region as well a strict reporting schedule to the EEOC of any and all incidents of discrimination.  

        Linda Hewett and countless others with disabilities are valued members of the American workforce who must sadly face this sort of discrimination on a regular basis. Treating those with disabilities like they have less to contribute is an unfortunate example of what is considered acceptable by those who hold narrow-minded or intolerant prejudices. Thankfully there are labor laws, legal teams and the EEOC, which are all dedicated to protecting disabled workers.

          Monday, March 08, 2010

          Ungentlemanly Behavior at a Gentlemen's Club

          Jennifer Paviglianti of Centereach, New York wanted to keep her pregnancy quiet from her boss John Doxey until she reached the three-month mark. Doxey is the owner of the gentlemen’s club Café Royale, and Jennifer is a bartender there, or at least she was. Gossip amongst her fellow employees reached Doxey before she was able to tell him the news of her pregnancy herself. Paviglianti says her now former employer immediately assumed that the pregnant bartender would be unable to do her job and she was soon fired from her position.   

          On February 2, Jennifer Paviglianti filed charges of discrimination based on sex discrimination, retaliation, perceived disability discrimination, and pregnancy discrimination with the United States Equal Employment Opportunity Commission (EEOC).  According to Paviglianti, her employer repeatedly told her that customers of the Café Royal would not be pleased to see a pregnant woman behind the bar as they expected to be served by sexy bartenders. Furthermore, she claims that John Doxey told her that her pregnancy and appearance were actually hurting business.  

          Soon, Jennifer found her shifts falling off the schedule and saw her paychecks dwindle. She claims he was trying to get her to quit and hitting her where it hurt. He also hired another bartender on the nights that she worked to cut into her already disappearing tips. The abuse, says Paviglianti, continued with Doxey finding ways to make her job more difficult, like forcing her to clean the bar with ammonia rather than safer products for pregnant women.  

          Jennifer Paviglianti started to sense something was wrong so she did some research. After discovering that cases of employee discrimination were extremely hard to prove, she concocted a plan to tape record her boss. With little coaxing and within the confines of the law, Jennifer easily captured her boss on tape saying discriminating things about her being pregnant and how her condition was negatively affecting business. This tape became the smoking gun that Jennifer needed. Armed with the tape, lawyers, and her complaint with the EEOC, Jennifer has a real shot of protecting other pregnant women form facing the kind of discrimination she has.

            Wednesday, February 24, 2010

            Workplace Discrimination is Still an Important Issue

            Workplace discrimination is the elephant in the room that nobody wants to talk about. After all, the civil rights movement was a long time ago and we have an African American president. These matters surely cannot exist in today’s workplace. Or can they? Shockingly, the issues of workplace discrimination are still making headlines.

            Take the case of Michelle London-Marble, the former Boeing employee from Mesa Arizona. London-Marable claims that she was discriminated by the company because of her race, wrongly denied disability benefits after an on the job injury, and forced to resign because she could no longer perform because of her injuries. After years of denials and dismissals, London-Marable is now hoping to take her discrimination case against Boeing all the way to the Supreme Court, as reported this past week.

            Also last week, MALDEF, the country’s leading Latino legal organization has joined as co-council in the case of Moreno v. AARP. The case alleges that the AARP, the nation’s largest membership program for older Americans, discriminated against former employee Michael Moreno citing wrongful termination and retaliation. Moreno claims he was denied promotion opportunities based on his nationality and he claims that he was a victim of retaliation after he assisted other AARP employees in filing a sexual harassment suit.  And then he was fired. 

            The story that really brought the topic of workplace discrimination to the forefront came out of the state of Virginia.  Governor Bob McDonnell shocked human rights groups as he removed homosexuals from workplace protection from the states discrimination policy. The newly elected governor reissued the state’s policy on discrimination with two groups newly and suspiciously absent: gays and lesbians. Although McDonnell promises to be fair to all groups of people, gay and lesbian rights groups are concerned. Eliminating any group of people from workplace protection is a dangerous prospect and rights groups from around the globe are watching Virginia and hoping that this decision is not a trend.

              Wednesday, February 24, 2010

              Employee Relations Lessons

              The juicy story of Kay Morris-Robertson is one that involves shopping mall conglomerate Westfield Holdings, a struggle with Post Traumatic Stress Disorder, and shocking allegations of failure to accommodate disability and disability discrimination. This bizarre tale began as Morris-Robertson, a former executive with Westfield Holdings, watched her husband die of a heart attack in front of her suddenly as the couple was sailing off the coast of Southern California in 2008. 

              Kay Morris-Robertson claims that she asked her supervisor for unpaid leave during her time of grieving but he responded unsympathetically and assigned her more job responsibilities instead. After sending a distraught email to her supervisor expressing her feelings, Morris-Robertson was arrested and held in a psychological detention unit based on a police complaint given by her employer. Westfield, the $62 billion dollar operator of shopping centers around the globe, was allegedly unsympathetic to Morris-Robertson’s diagnosis of PTSD and denied her time off for therapy appointments while threatening her with termination. She also claims that Westfield never informed her of her rights under the Family Medical Leave Act or the California Family Rights Act, two State measures designed to protect employees. 

              Kay Morris-Robertson’s laundry list of alleged charges against Westfield includes Failure to Accommodate Disability, Failure to Engage in Interactive Process, Disability Discrimination, and Violation of California Family Rights Act, among others. Represented by the Gillian Law Firm, Morris-Robertson’s lawsuit has been picked up by most major media outlets around the globe, most likely because of the dramatic content and shocking accusations. But Post Traumatic Stress Disorder, a failure to accommodate disability and disability discrimination are serious topics that reach far beyond the realms of water cooler gossip. 

              According to the Americans with Disabilities Act of 1990 (ADA), employers are required to provide reasonable accommodations to a qualified worker who has a disability, and failing to accommodate disabled workers puts employers in hot water with employment discrimination, which violates the ADA. In other words, allegations like the ones Kay Morris-Robertson has against Westfield Holdings are serious business.