In the face of a global pandemic, workplaces as we know them have drastically changed. Working from home has become common place, jobs that were undervalued in our society are now seen as essential, and workplaces once seen as safe now have increasing health and safety risks. The circumstances in this essentially unprecedented time serve
Disability discrimination
Parties’ conduct can show whether or not a reasonable accommodation offer was ever made.
By Austin Campbell on
Posted in Disability discrimination
“[Defendant] contends that it twice offered [the employee] a reasonable accommodation in the form of clerical work, which offers she ignored or rejected. This first offer was undisputedly made, but made at a time when [she] was unable to return to work and on FMLA leave. [The employee] declined the offer on the advice of…
An application for benefits under a disability policy stating that the claimant is “totally disabled” does not preclude them from claiming they could perform their job with reasonable accommodation if they never represented otherwise on their application and the definition of “disability” in the policy is not incompatible with that fact.
By Austin Campbell on
Posted in Disability discrimination
“[The employee’s] claim that she was temporarily totally disabled for the purposes of private disability benefits is not inconsistent with the claim that she could work if provided an accommodation. . . . [Plaintiff argued that] the definition of ‘qualified individual’ in the ADA was not incompatible with the definition of ‘disabled’ within the…
A written job description put forth by the employer is not dispositive of job duties at summary judgment in the face of testimony that the job duties were not actually required.
By Austin Campbell on
Posted in Disability discrimination
“[Defendant] also contends that a written job description in this case establishes that the essential functions of [the employee’s] duties include lifting and pushing more than ten pounds. While written job descriptions warrant deference, ‘this deference is not absolute,’ and we must ask ‘whether the employer actually requires employees in the position to perform the…
A claimant’s own testimony about job duties may be self-serving, but that does not disqualify it as competent summary judgment.
By Austin Campbell on
Posted in Disability discrimination
“At oral argument, counsel for [Defendant] suggested we reject the [Plaintiff]’s evidence as self-serving. But this is summary judgment, and we may not weigh the evidence or make credibility determinations.” Equal Emp’t Opportunity Comm’n v. Vicksburg Healthcare, LLC, — F. App’x —, 2016 WL 5939424, at *3 (5th Cir. Oct. 12, 2016) (internal citations
An employee’s testimony that she could not remember ever performing a particular job duty, alongside other testimony that it was “virtually never required,” creates a genuine issue of material fact as to whether it was an essential function of the job.
By Austin Campbell on
Posted in Disability discrimination
“‘Fact-finders must determine whether a function is ‘essential’ on a case-by-case basis.’ [The employee] testified she couldn’t ‘remember having to lift more than 10 pounds’ as part of her duties, and her colleague . . . has provided a detailed affidavit that, if true, establishes that such exertions are virtually never required. While [Defendant]’s witnesses…
An employee is disabled under the Americans with Disabilities Act if she requires a cane to perform her job.
By Jon Harsley on
Posted in Disability discrimination
“In Plaintiff’s Third Amended and Restated Complaint, Plaintiff adds the allegation that she ‘required the cane to perform the tasks within the course and scope of employment at Defendant’s facility.’ Thus, unlike the complaint in Mora, Plaintiff is specifically alleging that she suffered from an impairment to a major life activity by requiring a cane…
In a failure to hire case, an applicant does not have to show that he or she is “clearly better qualified, but simply that the employer’s explanation for the employment decision is pretext.
By Colin W. Walsh on
Posted in Age discrimination, Disability discrimination
“As we have noted, while a showing that a plaintiff is clearly better qualified is one way of demonstrating that the employer’s explanation is a pretext, it is not the only way … the question is whether the assessment, even if incorrect, was the real reason for the action.”
E.E.O.C. v. DynMcDermott Petroleum Ops. Co.,…
Assurances from another manager that decisionmaker will not be retaliated against by discriminating supervisor does not negate the influence of the discriminating supervisor.
By Colin W. Walsh on
Posted in Age discrimination, Disability discrimination
“After Lewis disagreed with Wood’s desire to Swafford, Wood repeatedly informed Lewis that he was violating federal law because Lewis was discriminating based on age and disability. Also the record indicates that Hojem did not make any assurance to Wood regarding retaliation until weeks later—after Wood had already decided to interview Thomas, who he had…
Statement from decisonmaker’s direct supervisor that person should not be hired because of the person’s age and illness of that person’s spouse is direct evidence of age and disability discrimination.
By Colin W. Walsh on
Posted in Age discrimination, Disability discrimination
“[T]he remarks appear to meet the other requirements of direct evidence.”
E.E.O.C. v. DynMcDermott Petroleum Ops. Co., 537 Fed. Appx. 437, 444 (5th Cir. July 26, 2013) (Davis, Graves, and Higginson, JJ.).