Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Disability Discrimination’

Starbucks Served Venti-Sized Discrimination Lawsuit

Thursday, March 8th, 2012

Leah BraukmanTwenty-five year old Eli Pierre has only one full arm, but he says he’s never been told there was something he couldn’t do.

That is, until last month, when a San Diego, California Starbucks interviewed and then refused to hire him. Mr. Pierre is now suing the Seattle-based company in California state court alleging discrimination and wrongful failure to hire “despite his capable work history,” in violation of California’s Fair Employment and Housing Act (FEHA). He’s also claiming failure to prevent discrimination, to make reasonable accommodations, to engage in the interactive process in violation of FEHA, wrongful failure to hire in violation of public policy, and intentional infliction of emotional distress.

According to ABC News, Mr. Pierre, a former bartender, claims he wasn’t hired because he is missing half of his left arm, and that throughout his interview, he was told that he wouldn’t be able to work there – besides being teased about a previous job he’s held at Victoria’s Secret. (“Maybe he can help you find the right bra size”, the interviewer allegedly said to another Starbucks employee.)

A spokesperson for the coffeehouse chain contends that Mr. Pierre’s version of the interview is “vastly different” from what actually took place, and that he wasn’t hired because of his qualifications and answers to interview questions.

While ABC and the rest of the media provided plenty of information about Mr. Pierre’s lawsuit, it didn’t size up the strength of his claims. LASIS will.

ABC had what little law it did report, wrong. It stated that Mr. Pierre sued for discrimination in violation of the Federal Employment and Housing Act. Such a law doesn’t exist.

California has a state law, the Fair Employment and Housing Act, that is more expansive than federal employment discrimination laws, and that is what Mr. Pierre is relying on.

FEHA prohibits an employer from either refusing to hire or for firing someone based on a physical disability, defined in part as any anatomical loss that affects a body system and limits a major life activity. Not having an arm certainly qualifies as a physical disability, but it hasn’t stopped Mr. Pierre from working, a major life activity under the Act. A former boss even told ABC that Mr. Pierre “can carry more than somebody…with two arms.”

Even so, Mr. Pierre is clearly disabled and his discrimination argument seems pretty solid. Especially if what he said of the interview is true. In a 2002 California Court of Appeals case, a man with a prosthetic leg sued the Los Angeles Police Department when he wasn’t hired as a police officer. The court found no discrimination because the man didn’t meet the physical requirements of the job. And this makes sense. It would be ineffective for a police officer with a prosthetic leg to chase after a fleeing suspect by scaling fences and jumping over obstacles.

It’s harder for Starbucks to argue that it requires both arms to pour coffee. On the other hand, doing some field research I watched the baristas make my drink at a local Starbucks recently, and using two hands surely helped them work as quickly as they did.

But the crux of Mr. Pierre’s argument isn’t that Starbucks should have hired him on the spot, it’s that it didn’t engage in the “interactive process” of identifying reasonable accommodations that would allow him to work there.

In 2008, the California Court of Appeals said an employer is liable if the workplace could be modified to allow an employee to perform the essential functions of the job. For Starbucks, it wouldn’t take much. The interviewer had told Mr. Pierre it would never work out for him at Starbucks because he wouldn’t be able to reach certain syrups while making the drinks. Well, one place for Starbucks to start in trying to accommodate Mr. Pierre would be to move the syrups within reach.

Mr. Pierre also claims that when Starbucks didn’t give him the job or explore any potential accommodations, it violated public policy. The California Court of Appeals recognizes this as a separate claim, but as violations of FEHA are automatically violations of public policy, Mr. Pierre will likely succeed on this public policy argument, as his discrimination claims are rather robust.

Aside from the alleged FEHA violations, Mr. Pierre is suing for intentional infliction of emotional distress. To win on an emotional distress claim, Mr. Pierre would have to prove that Starbucks’ conduct was “outrageous” and exceeded “all bounds…tolerated by a decent society.” In 2006, the California Court of Appeals ruled that unlawful discrimination doesn’t necessarily lead to a successful emotional distress claim. That’s not to say a Starbucks interviewer should have treated Mr. Pierre as he did, but what happened during the interview doesn’t amount to the extreme behavior the court is probably looking for.

As a frequent Starbucks customer, I was disappointed when I heard of these accusations, especially as this isn’t the first time the company has been accused of discrimination. Last year, a Starbucks employee with dwarfism was fired after asking for a stool or stepladder because, the company said, “she could be a danger to customers and workers.” The Equal Employment Opportunity Commission sued the company for discrimination and Starbucks shelled out $75,000 to settle. I’ll keep going to Starbucks for now because I’m hooked. But if I hear of more offensive behavior like this, I might just try Dunkin’ Donuts instead.

This blog originally appeared in Legal as She is Spoke, a project of the  Law and Journalism track at New York Law School, on March 5, 2012. Reprinted with permission.

About the Author: Leah Braukman (2L) is first and foremost a proud graduate of the University of Florida — Go Gators!  While a “Gator” at heart, she is thrilled to be in New York City and studying law at New York Law School, and is equally excited about contributing to this blog. Leah is a member of Law Review, the Institute for Information Law and Policy, the Media Entertainment Fashion Law Association, and the Program in Law and Journalism.

Cancer Victim Fired For Disclosing Brain Tumor Has Claim For Disability Discrimination

Monday, June 13th, 2011

ellen simonA U.S. District Court in Texas ruled that a  Houston P.F.Chang’s restaurant may have violated the Americans with Disability Act when it fired one of its restaurant managers three days after he disclosed that he had a brain tumor.

On June 8, 2009 Jason Meinelt was diagnosed with a brain tumor. He told his boss, Michael Brown, the same day and also told him that he would probably have surgery in August and could be out for six to eight months.  Brown was supervised by Glenn Piner.  Bown told Piner immediately about Meinelt’s condition.

Two days later, Piner began an audit involving  employee clock-out time punches.

The next day, Meinelt was fired for improperly editing employees’ time records. Meinelt testified that he was “completely baffled” and “shocked” about the firing and that editing time was a common practice among all of the managers including the ones who preceded him.

P.F. Chang’s first argument, that Meinelt’s brain tumor was not a disability, was rejected by the Court. Under the ADA, a disability is a “physical or mental impairment that substantially limits one or more major life activities.”  The ADA was amended in 2008, and the amendments specifically included cancer in its definition of what may be considered a disability. As the Court noted,

Under ADAAA, “a major life activity includes the operation of a major bodily function, including but not limited to,… normal cell growth .. [and] brain .. functions. 42 U.S.C. s. 12102(2)(B). The disability test can be met by actually suffering an impairment that substantially limits a major life activity or “being regarded as having such impairment.”

Therefore, since Meinelt was terminated after the ADA Amendments Act of 2008 came into effect, he was covered under its “more expansive definition” of disability according to the Court. As to P.F. Chang’s contention that Meinelt was fired because of the time entries, the Court had this to say:

[T]here is undisputed evidence of the temporal coincidence of Meinelt revealing his medical condition and the employer’s decision to fire him. The record contains ample evidence supporting an inference that Piner’s belief that Meinelt had improperly edited time was not the reason he terminated Meinelt. Piner fired Meinelt only tree days after Brown told Piner about Meinelt’s tumor. ..(citations omitted)

Summary judgment on the ADA claim is denied.

This decision means that Meinelt has the opportunity to take his case to the jury but it has broader implications.  It’s another victory for cancer victims who have been discriminated against by their employers.

Before the ADA amendments, these types of cases were routinely thrown out by courts which narrowly interpreted the ADA and held that the employees with cancer were not disabled — and therefore not protected from disability discrimination. Those same arguments, raised by P.F. Chang’s in this case, failed and it’s about time. For another case on point  see here. For more about cancer discrimination and the workplace, see here. For the Meinelt opinion, see here.

This blog originally appeared on Employee Rights Post on June 10, 2011. Reprinted with Permission.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. Today, Ellen offers legal advice to individuals with legal problems surrounding employment rights, age/gender/race or disability discrimination, workplace retaliation and sexual harassment.

Employee Rights Short Takes: Scalia's Impartiality Questioned, Two Punitive Damage Awards, Disability Discrimination And More

Wednesday, January 19th, 2011

Here are a few employee rights Short Takes worth noting:

Scalia Says Due Process Clause Does Not Prohibit Sex Discrimination

For those who may have missed it, Justice Antonin Scalia recently expressed his view that neither women nor gays are protected against discrimination under the 14th amendment of the Constitution. The statement was made in an interview this month published in the California Lawyer.

While it’s newsworthy because of the shock value alone, Scalia has expressed this view before. All one has to do is read the 1996 decision of  United States v. Virginia, in which Scalia was the only justice to dissent from the Supreme Court’s decision to end the Virginia Military Institute’s 157 year old state supported practice of only accepting male students.

Not surprisingly, Scalia’s recent remarks angered liberals and was criticized by many legal scholars. Marcia Greenberger, founder and co-President of the Women’s Law Center, as reported in the Huffington Post, called  Scalia’s comments “shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Scalia’s comments stem from his view that the 14th amendment , when written, was not intended to ban sex discrimination. As to Scalia’s originalist view, Eric Segall, a professor at Georgia State College of Law, had this to say in his letter to the editor published in the New York Times:

On issues of affirmative action, gender rights, gun control and campaign finance reform, among most other controversial constitutional law questions, Justice Scalia does not truly use an originalist methodology. Much more of his judicial style can be gleaned from looking at the Republican Party Platform than at the drafters of either the original Constitution or the 14th amendment.

For Justice Scalia, it is about results, not process, no matter how much he protests otherwise.

In the same vein, Scalia also also made news with the announcement of his role as a featured speaker at  Michele Bachmann’s tea party / “Constitutional Conservative Caucus” later this month. For more about questions raised regarding Justice Scalia’s impartiality, read Nan Aaron here.

EEOC Settles Disability Discrimination Case For 3.2 Million

Jewel –Osco’s parent company Supervalu  Inc. has agreed to pay $3.2 million to settle a federal lawsuit claiming that the company discriminated against its disabled employees.

The suit, filed by the EEOC, alleged that Jewel-Osco fired employees with disabilities at the end of their leaves rather than bringing them back to work with reasonable accommodations.

According to the EEOC, roughly 1000 employees at Jewel-Osco stores were fired under this policy. One employee who will benefit from the settlement is Rosemary Bednarek who is representative of the class.

Bednarek injured her back lifting boxes of chicken at a Jewel-Osco store in 2004. When she was able to return to work, her doctor advised that she should not lift more than 20 pounds but the company would not accommodate the restriction. Bednarek re-injured her back and was fired a year later.

This is a great settlement that will not only benefit the plaintiffs in the case, but also serve to remind employers of their obligations under the Americans with Disabilities Act (ADA) to accommodate employees with disabilities — including those who are injured on the job.

Two New Decisions On Punitive Damages

We do not often see employment law decisions in which punitive damages are addressed, so to see two in the last few weeks is worth talking about.

Generally speaking, punitive damages are available in some cases in which the defendant engaged in a deliberate or reckless disregard of the rights of others.

The jury, in determining the amount of the punitive damage award, is permitted to consider a number of factors, including a sum of money that would discourage the defendant from engaging in the conduct in the future as well as the income and assets of the defendant. Some large punitive damage awards are challenged on grounds that they violate the Due Process Clause of the Fourteenth Amendment of the Constitution.

Here’s a brief synopsis of the cases:

Hamlin v Hampton Lumbar Mills, Inc.:  Plaintiff Ken Hamlin was injured while working at the Hampton Lumbar Mills. When he was released to return to work, the defendant falsely asserting that he was a “safety risk” and refused to to reinstate him as required by Oregon law.

The case went to trial and the jury awarded lost wages of $6000 and punitive damages in the amount of $175, 000. On appeal, the Court of Appeals held that the punitive damage award was “grossly excessive” under the Due Process Clause of the United States Constitution and reduced it to a sum equivalent to four times the amount of the compensatory damages.

In an instructive review of the case law on punitive damages, the Oregon Supreme Court reversed holding that a punitive damage award may exceed a single digit multiplier of a compensatory damage award without violating due process or being “grossly excessive.”

The case is an excellent reference point for anyone briefing an argument for punitive damages in an employment case.

Claus v. Intrigue Hotel, LLC:  In this age discrimination case, the jury awarded $50,000 in actual damages and $150,000 in punitive damages in a bifurcated trial. The defendant appealed. The Court of Appeals affirmed the verdict in a decision issued late last month.

In brief, Glenda Claus worked for Intrigue Hotels (including its predecessor) since 1984. Her last position was housekeeping supervisor. In 2007, Claus was fired and replaced by a 31 year old employee.

Claus, 63 at the time, testified that she was completely blindsided by the news of her termination. With a record of positive job performance evaluations, a failure to admonish Claus regarding job deficiencies, and replacement with a 31 year old employee with performance issues, the Court of Appeals held that the jury could have rejected Intrigue’s after the fact rationale that Claus was fired for poor performance.

In addition, there was evidence that her new supervisor (Galaviz ) stated he wanted employees who would be at the hotel for the “long haul” and that Claus was “resistant to change.” The Court held that the jury could have reasonably taken these statements to mean that Galaviz did not want older employees and that Claus’s age was a factor in her firing.

The evidence also showed that Galaviz had been engaged as a human resources consultant and had an extensive knowledge of employment law at the time he made these comments and fired Galaviz.

Worth noting is the Court’s statement that the same evidence which supported Claus’s substantive claim for age discrimination also supported her claim for punitive damages  As the Court pointed out,  both Copidas (the owner of the hotel) and Galaviz:

  • knew it was against the law to fire an employee because of age
  • fired a 63 year old employee with a spotless record
  • replaced her with a 31 year old with documented performance problems
  • promoted several younger employees with performance issues
  • altered its rationale for firing Claus several times and created pretextual reasons for firing her

In sum, the Court concluded that the jury’s award of punitive damages was supported by the evidence. The case was remanded to the trial court for an award of reasonable attorney’s fees and costs — a great victory for Claus and her lawyer.

This case is a good example of the kind of evidence which supports a claim for age discrimination as well as a claim for punitive damages. As stated above, since we don’t often see decisions affirming a punitive damage award, these cases are worth noting.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Southwest Flight Attendant Wins ADA Appeal

Monday, March 29th, 2010

Employee Fired For Taking Medical Leave Gets Jury Verdict Reinstated

When does too much time off for an illness justify a termination because of poor attendance? Not every time according to a case decided this past week from the Fifth Circuit Court of Appeals. Here’s what happened.

Facts Of The Case

Edward Carmona worked for Southwest Airlines as a flight attendant. He was plagued with psoriasis since he was a teen. As an adult, Carmona developed psoriatic arthritis which causes painful swelling and stiffness in the joints during attacks of psoriasis on the surface of his skin.

During flare-ups, Carmona is in great pain and has difficulty walking and moving around. The flare ups occur three or four times every month and each flare-up lasts for three or four days.

In order to get time off as needed for his condition, Carmona filed for intermittent leave under the Family and Medical Leave Act. He was granted FMLA leave between 1998 and 2005, until Southwest determined that he had not worked enough hours to be eligible for renewal.

After Carmona’s FMLA leave expired, he was no longer able to excuse absences caused by his psoriatic arthritis. What followed was a round of progressive discipline which culminated in termination because of an accumulation of points relating to unexcused absences.

The Lawsuit

Carmona sued Southwest claiming that he was terminated because of his disability in violation of  the Americans with Disabilities Act. (ADA)*.

In order to prove an ADA claim, an individual must prove:

  • that he was an individual with a disability within the meaning of the ADA
  • that he was a qualified individual for his job, despite his disability,
  • and that he was discharged because of his disability

In order to establish a disability, Carmona had to establish that he had:

  • a physical or mental impairment that substantially limited one or more major life activities
  • a record of such an impairment or
  • that he was regarded as having such a impairment.

After a jury trial which Carmona won,  the judge granted judgment against Carmon as a matter of law on the grounds that he did not present sufficient evidence of a disability.  Specifically, the judge found Carmona’s intermittent limitations didn’t prove a substantially limiting impairment. In other words, the judge ruled that Carmona was not disabled as a matter of law and took away the verdict.

The Fifth Circuit Court of Appeals disagreed and reversed in it’s opinion issued this week. You can read the decision here.

In sum, it held that the verdict should stand because there was sufficient evidence for a reasonable jury to conclude that:

  • Carmona had an impairment that substantially limited his major life activity of walking
  • he was a qualified individual for his job
  • he was terminated because of his disability
Take Away

This is a really good decision for those who have conditions which cause intermittent disabling flare-ups and need to take time off of work because of it. It will particularly benefit those employees who work for employers not covered by the FMLA (companies with less than 50 employees).

The case also has a helpful discussion on Southwest’s core argument — that Carmona was not qualified for the job because of his poor attendance.

It’s also  good decision for those with cases pending before the ADA amendments Act of 2008. The Court did not apply the amendments retroactively, yet still found for the plaintiff under the narrower pre-amendments law.

The Court also wrote about reinstatement as a remedy — another topic we don’t see very often in ADA opinions.

In sum,  this case is a good result for employees and instructive to employers on the interplay of attendance policies and the ADA.

( *Carmona also had a Title VII claim; the jury found against him on that claim )

Image: blog.cleveland.com

*This post originally appeared in Employee Rights Post on March 27, 2010. Reprinted with permission by the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


AIDS Discrimination Victim Gets New Trial

Thursday, March 25th, 2010

Admission Of EEOC No Probable Cause Determination Is Reversible Error

I ran across this case recently and I think it’s definitely worth talking about.  It deals with a real problem in discrimination cases that has been around for as long as I can remember and it affects just about everyone who files an EEOC charge.

The case, Byrd v. BT Foods, Inc., addresses the controversial issue regarding the admissibility of  EEOC findings at trial and it’s a good result for employees.

What’s The Problem?

When an individual files an EEOC charge, the EEOC  conducts an investigation. At its conclusion, the EEOC issues a determination letter stating one of two things:

  1. there was probable cause to believe that discrimination, retaliation, etc. occurred or
  2. there was no probable cause to believe that a violation of the civil rights law occurred

After the determination, the EEOC issues a Notice of Dismissal and Notice of Right to Sue which gives the individual the right to go to court.

Here’s the potential problem for the employee who did not prevail at the EEOC (or its state counterpart).  At trial, the employer always tries to introduce the EEOC dismissal and no probable cause determination.

In effect,  the employer wants to argue to the jury, “the government investigated this case, didn’t find discrimination, and you shouldn’t either.” It doesn’t take Clarence Darrow to figure out that this argument can be quite damaging to the plaintiff’s case at trial.

What Happened In The Case

Cemeshia Byrd worked at Wendy’s in Coral Springs, Florida. Byrd filed a lawsuit against BT Foods (doing business as Wendy’s Coral Springs) claiming that she was discriminated against when she was terminated because she had Human Immunodeficiency Virus (HIV).

Discrimination because of AIDS is illegal in the U.S. under the Americans with Disabilities Act. It’s also illegal under many state civil rights laws, including the Florida Omnibus Aids Act and the Florida Civil Rights Act.

Before proceeding to court, Byrd filed a charge of discrimination with the Broward County Civil Rights Division, an agency which conducts investigations for the Equal Opportunity Commission.

After receiving a no probable cause letter of determination, Byrd filed a lawsuit in Broward County Circuit Court claiming discrimination and intentional infliction of emotional distress.

Before trial, Byrd filed a Motion in Limine – which is a request for an order to exclude the admission of particular evidence at trial. Generally the gist of the augment on a Motion in Limine is that:

  • the evidence is irrelevant, highly prejudicial, or hearsay and
  • the jury should not be able to hear or see the evidence nor should there be any reference to it

In this case, Byrd asked for an exclusion of EEOC documents including the Notice of Determination and Notice of Dismissal of her EEOC charge.

She argued that the EEOC “NO PROBABLE CAUSE STATEMENT” written in capital letters in the Notice of Determination were highly misleading, unduly prejudicial, and too conclusory to provide any meaningful probative value . She also argued that the jury would be likely to give the dismissal and “no probable cause determination” more weight than is appropriate.

The judge ruled against Byrd and in favor of BT Foods on the Motion in Limine. During the trial, according to Byrd, BT Foods made the reasonable cause determination the centerpiece of its defense.

Byrd lost her jury trial and filed an appeal. In it she claimed that the court’s admission of the EEOC findings constituted reversible error which entitled her to a new trial.

The Court’s Ruling

With no Florida cases on point, the Fourth District Court of Appeals of Florida looked to federal law for guidance on the issue of admissibility of EEOC findings at trial.

It noted that the Eleventh Circuit Court of Appeals considered an EEOC determination “ordinarily admissible” and a decision which “rationalized that the reports are ‘highly probative’ due to the training and experience of the EEOC investigators.”

On the other hand, it went on to note that many federal courts have concluded that EEOC letters of determination are inherently prejudicial. The Court ultimately agreed that the letters in Byrd’s case should not have been admitted.

The Court wrote:

We agree with the reasoning of these courts, that a jury may find it hard, if not impossible, to independently evaluate the evidence presented to the parties after being informed that the EEOC has already investigated the claim and determined that reasonable cause does or does not exist to believe that unlawful discrimination has occurred…..

Several courts have reasoned that similar conclusory administrative determination letters, i.e., those which do little more than take sides, enjoy particularly low probative value, but possess especially high dangers of unfair prejudice.

The Court ruled that Byrd’s Motion in Limine should have been granted, reversed the lower court, and remanded the case for a new trial.

Take Away

The admissibility of EEOC findings has been plaguing lawyers who try discrimination cases since the civil rights laws were first passed. The whole issue has become much more important with the enactment of laws which give civil rights plaintiffs the right to to jury trials.

My former law students may recall that one of the first assignments I gave them was to draft a Motion in Limine regarding the admissibility of a probable cause finding and and argue its admissibility or exclusion.

As far as trials go, it should come as no surprise that  those of us who represent employees argue vociferously for the admission of a positive finding of discrimination by the EEOC. We argue just as strongly for the exclusion of a no probable cause finding.

Lawyers who represent employers of course make the same kind of arguments in reverse. I have had judges who have allowed the evidence in. I have had judges who have excluded it.

That’s why any law on this subject is helpful.

images: www.karlonia.com

*This blog originally appeared in Employee Rights Post on March 26, 2010. Reprinted with permission by the author.

About the Author: Ellen Simon offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. She’s recognized as one of the first and foremost employment and civil rights lawyers in the United States. Ellen’s a legal analyst and is available to discuss high-profile civil cases, employment discrimination and women’s issues. Quoted often in local and national news media, Ellen has been a regular guest on television and radio, including appearances on Court TV. For more information go to www.ellensimon.net or call 1-888-915-1952.

Employee Fired Because Of Depression Wins Right To Jury Trial

Monday, February 22nd, 2010

Banker Terminated When “Regarded As Disabled” And Because Of Perceived Mental Impairment Has ADA Claim

Disability claims involving mental impairments can be tough. That’s why this recent case from a federal district court in the Eight Circuit is an important and helpful read. Here’s what happened in the case of Lizotte v. Dacotah Bank.*
Facts Of The Case

Alfred Lizotte was an assistant vice president of commercial lending at Dacotah Bank where he had been employed since 2003.

On Thursday, November 30, 2006 Lizotte consumed somewhere between 10-12 drinks at a local bar. On his way home, “and for whatever reason”, he decided he “had enough of this”, drove to a cemetery, took a gun out of his backseat, and called his sister.

When his sister arrived at the cemetery, he told her that he “didn’t want to be here anymore.” She unsuccessfully struggled to get the gun and called the police.

Lizotte drove away, was stopped by the police, and taken into custody. He was involuntarily committed to a psychiatric inpatient unit for four days following the incident.

On December 1, 2006 Lizotte called his immediate supervisor and told him that he was unable to come to work. On December 5, 2006 Lizotte’s physician faxed a Dacotah Bank “Certification of Health Care Provider” form indicating that Lizotte could return to full work duties in a week.

On December 8, 2006 the HR director (Bobby Compton) sent Lizotte a letter stating: “Because of the impact of your action in the community, and the ability to perform your job, we are placing you on Leave of Absence to allow us to review the information and consider the issue.”

On December 14, 2006 Lizette met with Compton and two officers of the bank. He was given a letter to sign which said that it was his last day of employment. In exchange for signing the letter he got $6,500.00 in severance pay. Lizette unwillingly signed the letter and thereafter received a “Notification of Employee” resignation form which he refused to sign.

The Lawsuit

Several months later, Lizotte filed a lawsuit in federal district court in North Dakota alleging discrimination under the Americans with Disabilities Act (“ADA”). The complaint also asserted several state law claims.

ADA: What’s The Law?

The Americans with Disabilities Act law is quite complicated but here it is in a nutshell.

In order for an employee to establish a prima facie case under the ADA, he must show he:

1. is disabled within the meaning of the ADA
2. is qualified to perform the essential functions of the job with or without reasonable accommodation, AND
3. suffered an adverse employment action because of his disability

The ADA defines disability as:

1. a physical or mental impairment that substantially limits one or more major life activities OR
2. a record of such impairment OR
3.
being regarded as having such impairment

If a plaintiff establishes all of those elements, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the discharge.

If the employer establishes a legitimate reason for the discharge, the burden shifts back to the plaintiff to show that the reason given by the employer is a pretext for discrimination — meaning that it’s a “phony excuse.”

The bottom line is after jumping through all of these hoops, there must be evidence from which a jury could reasonably conclude that the individual’s disability “was a factor in the employment decision at the moment it was made.”

The Court’s Opinion In The Case

Regarded As Disabled

The bank argued that Lizotte’s claim should be dismissed as a matter of law because he did not have a disability as defined by the ADA.

Lizotte contended that he met the definition of disability because Defendants regarded him as disabled and mistakenly believed that his mental disorder substantially limited the major life activity of working .

The Court agreed with Lizotte.

Quoting from the landmark case of School Board of Nassau v. Arline which interpreted the “regarded as” language in the Federal Rehabilitation Act, it noted:

Although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling.

By including ‘regarded as’ in the Rehabilitation Act ‘Congress acknowledged that society’s myths and fears about disabilities and about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.

Therefore, if an individual can show that an employer or other covered entity made an employment decision because of a perception of disability based on “myth, fear or stereotype, the individual will satisfy the regarded as part of of the definition of disability.

In Lizotte’s case, the defendants:

* were aware that he was being treated for depression

* knew he had attempted suicide the night of November 30th and was hospitalized for several days after the event

* were “blown away” that he was released from the psychiatric unit after only 4 days

* perceived Lizotte’s mental impairment (mood disorder according to his doctor) to be much more restrictive than described by his doctor

* inaccurately believed:

1. that he could not work

2. suffered from a condition that made him potentially violent at work

The Court stated:

There is undisputed evidence that Lizotte was terminated on December 14, 2006 because of the Defendants’ concerns about ‘safety,’ reputation,’customer acceptance,’ ‘liability,’ and a desire to protect the bank’s image in Minot.

The EEOC regulations and case law explicitly state that such ‘attitudinal barriers’ may reflect a perception of disability based on ‘myth,fear or stereotype’ and that this is a scenario the ADA is designed to guard against……..

The Bank Defendants’ “Legitimate Reasons” For Termination And Proof Of “Pretext”

Bank officials stated that it terminated Lizotte because of three concerns:

1. the safety of its employees and customers
2. its reputation in the community
3. its reputation with its employees

The record however, did not support those justifications — and certainly not as a matter of law. For example, as the the Court noted, the evidence showed:

* the suicide incident was not well known in Minot or among other bank employees

* no adverse business results occurred in the two weeks between the suicide attempt and Lizotte’s termination

* no employee said he or she couldn’t work with Lizotte

* there was no financial impact on the bank

* no customers pulled their accounts nor asked to be transferred to a different loan officer

As stated by the Court:

There may have been legitimate, non-discriminatory reason(s) to terminate Lizotte in December 2006, but there are certainly inferences that can be drawn from the evidence presented that the bank acted on the basis of myth, fear,or stereotype, and that Lizotte’s perceived mental impairment was the reason for the termination. …

The ADA does not require that Dacotah bank officials to put its staff and the general public at risk by employing an individual who poses a direct threat to others.

But the ADA does require the bank to provide due consideration to an individual they arguably may have ‘regarded as’ having a mental impairment and who may be able, with reasonable accommodation, to perform his work productively and safely. ….

There is conflicting evidence as to whether the employment decisions were made because of a perception of a disability …. that warrant a jury trial and preclude the granting of partial summary judgment on the ADA claims.

Lessons To Be Leaned

According to the National Institute for Mental Health, mental disorders are common in the United States. An estimated 26.2 percent of Americans ages 18 and older — about one in four adults — suffer from a diagnosable mental disorder in a given year. That’s over 70 million people.

Therefore, millions of people with depression and other mental disorders may be exposed to employment discrimination because of a disability which can and should be accommodated.

This case is a perfect example of what can happen when misconceptions about depression and other mental impairments can result in an illegal discharge under the Americans with Disabilities Act.

images: www.lipseys.com

www.westernsolutions.com

*Reprinted from Westlaw with permission of Thomson Reuters. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.

*This post originally appeared in Employee Rights Post on February 19, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

One Shocking Incident Of Disability Discrimination Supports Verdict For Employee

Tuesday, November 24th, 2009

Judgment For Employee Due To Employer’s Failure To Accommodate

I don’t remember ever reading a case quite like this one. The facts are quite graphic so be prepared. The story revolves around an incident of a store’s failure to accommodate a disability which led to a tragic result.

What Happened In The Case

A woman identified only as A.M. came to America in 1981 from El Salvidor after civil war broke out. She started working at Albertsons in 1987. She worked in various jobs, but at the time of the incident giving rise to the case, she was working as a checker. 

In 2003, A.M. underwent chemotherapy and radiation for cancer of the tonsils and larynx. The treatment affected her salivary glands which caused her to drink large volumes of water and urinate repeatedly.

While at work, A.M. was required to have water with her at all times and needed to go to the bathroom frequently — sometimes as often as every 45 minutes.

Most managers accommodated her but on the evening of February 11, 2005, A.M. encountered a horrific problem.

She worked a shift that day which began at 1:00 p.m. and was scheduled to end at 10:00 p.m.

By 7:00 p.m. there were only three employees in the store – A.M. who was working as checker, another woman who acted as courtesy clerk (and was not allowed to relieve a checker), and Kellie Sampson – the person in charge.

At 8:00 that evening, A.M. told Sampson that she needed take a break. Sampson asked A.M. to wait because a delivery truck was coming

Some time later, A.M., who had a line of customers waiting to check out, called  Sampson and told her again that she needed to go to the bathroom. Sampson told her that she was unloading the merchandise and that she had to wait.

About 10 minutes later, A.M. still had customers in the line. She called Sampson once more and told her that she really had to go. Sampson said that she was busy and unable to come to the front of the store.

Unable to control herself, A.M. urinated while standing at the checkout stand. She was having her menstrual cycle, and so she was drenched with both urine and blood.

Understandably, A.M. was shaky and humiliated though she did not think the customers saw what happened. When Sampson finally got to the front of the store, A.M. went into the bathroom to clean herself.

Sobbing, she called her husband to tell him what happened. A customer observed her crying, asked what was wrong, and A.M. explained that she had wet herself because no one let her go to the bathroom.

The customer helped her to her car. She had a horrible drive home and thought about killing herself.

When she got home, still nervous and crying, she took a long shower and tried to scrub the smell off her. She wouldn’t get out of the shower and her husband had to remove her.

After that, she was unable to return to work and began to deteriorate psychologically. She became listless and withdrawn. She refused to see family and friends. She feared that people would be able to smell the bad odor she sensed about herself.

She had crazy dreams and couldn’t sleep. Each day, she took multiple showers to try and remove bad smells from her body. She shaved off all of her body hair, hoping that the bad smell would go away.

Eventually A.M. told a doctor that had thoughts about killing herself. She was committed to a psychiatric hospital for several days.

She began receiving individual and group therapy and eventually improved. She took fewer showers and began to be less concerned about her smell. She still was withdrawn but eventually was able to go back to work.

The Lawsuit

A.M. filed for damages claiming that Albertsons failed to provide her with a reasonable accommodation for her disability in violation of California’s Fair Employment and Housing Act (“FEHA”).

As generally happens where damages for emotional distress are being considered, there was conflicting testimony was presented from from the psychologists and psychiatrists.

For the plaintiff, an expert in psychological treatment and injury testified about A.M.’s post traumatic stress disorder . The expert’s opinion was that A.M.’s emotional distress occurred as a direct result of the February 2005 incident and that she would likely suffer some effect of this disorder for many years.

Two psychiatrists testified on behalf of the defense. Their opinion was that her depression was a result of events that predated the February incident and that  A.M. had been depressed and anxious for most of her life.

The jury returned a verdict in A.M’s favor and awarded damages in the amount of $200,000:

  • $12,000 for past lost wage
  • $40,000 for future medical expenses
  • $148,000 for past emotional distress

The Appeal

Albertsons made several arguments on appeal.

Under the FEHA (like the Americans With Disabilities Act) an employer that fails to make a reasonable accommodation for an employee’s known physical disability engages in an unlawful employment practice.

Albertsons main contention was that its failure to accommodate was trivial, because it constituted a single incident in the context of a much longer period of successful accommodation (which began in 2004 when A.M. came back to work after her cancer treatment).

In other words, the defense argued that one incident of a failure to accommodate is not enough to violate the law.

The Court of Appeals strongly disagreed and had this to say in its opinion:

The employer’s interpretation would be inconsistent with the statutory purpose to require employers to make reasonable accommodation for their employees’ physical disabilities …

As is demonstrated by A.M.’s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated.

When construing a statute, we seek to interpret it in a manner that promotes wise policy, not absurdity. ….

The judgment is affirmed.

Lessons To Be Learned

I don’t remember ever reading a case that turned on the question of whether a single incident of accommodation could support a disability claim and verdict –  so for that reason, the case is both interesting and important.

The case is also a sad and disturbing illustration of what can happen when managers at all levels are uninformed about the consequences of a failure to accommodate the disabled.

image: www.tempe.gov

www.carlsonzone.com

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

ADA Changes Better Late Than Never

Thursday, November 12th, 2009

New ADA Regulations Will Bring Necessary Change

I received a call from a reporter from MSNBC a few days ago. She indicated that she wanted to ask me some questions about the new Americans with Disabilities Act regulations recently put out by the EEOC.

The interview caused me to reflect on just how important the amendments to the ADA are –along with the new regulations — and the struggle we have gone through to get here.

When the ADA was written, I remember being at a meeting in Cleveland with a group of employment lawyers which was sponsored by a committee of the American Bar Association. The guest speaker was a lawyer from D.C. and he was there to talk to us about the new legislation and give us a preview.

I remember listening to and reading all of these complex, confusing terms and thinking “this is going to result in tons of litigation and be a big nightmare.” I walked out of the meeting and talked about my deep concern with some friends and colleagues from both sides of the bar.

We all seemed to reach the same conclusion – that this was going to be an ugly litigation mess — and though we saw the handwriting on the wall, there was nothing we could do about it. The ADA was written and this is what it was going to say.

And indeed what our group of experienced employment lawyers predicted that day in 1990 turned out to be true. While the intent of the ADA was certainly noble, the way in which it was written has caused nothing but problems.

What’s more important is that the problems with the ADA have had a terrible negative effect on those individuals who were supposed to be protected by the legislation.

The ADA was intended to protect individuals with disabilities from discrimination. Because of the way in which the Act was written, combined with the way in which it has been interpreted by an exceedingly conservative federal judiciary, most cases got thrown out on summary judgment because the courts determined that the individual plaintiff employee was not disabled.

If he/she was not disabled, then he/she was not protected by the ADA from disability discrimination, and so they lost. Here’s an example of what I mean.

A secretary gets fired for going to chemotherapy. We file a case of disability discrimination. The employer argues that cancer is not a disability as defined by the Act. The judge buys the argument and the case gets thrown out. (based on a true story)

That scenario occurred thousands and thousands of times. Employees with disabilities were getting fired, or not hired in the first place, or passed over for promotions – and the cases were thrown out of court because the employers argued that the person was not disabled so the ADA did not apply.

Those rejected included people with AIDS, people with cancer, people with MS, people with epilepsy, diabetes, with prosthetic devices and the list goes on and on.

As a consequence,  those of us who tried to represent these folks never even got to the stage of the case in which we had a chance to prove discrimination.

As I explained to the MSNBC reporter, in other discrimination lawsuits such as age, race, or gender discrimination cases, we don’t have a fight about whether the client is a woman, or over 40, or black.

We glide past step one, and move on to proof of the next step, that is:

  • Was he or she was discriminated against because of age, race or gender?
  • Was that person’s age, race, or gender a motivating reason for the discharge, failure to hire, lack of promotion, or any other adverse employment decision?

In disability cases, it was almost impossible to get to step two. Practically no one seemed to meet the criteria for coverage under the ADA. To be covered, the individual must:

  • have a physical or mental impairment that substantially limits one or more major life activities
  • and be able  to perform the essential functions of the job.

The courts decided – at the employers’ urging — that the employee was either not substantially impaired, or that the impairment did not involve a “major life activity.”

Even if the plaintiff got over that hurdle – in other words was disabled enough to meet the criteria, it’s most likely that he or she was booted anyway.

That’s because the employer would then take the position that the individual was so restricted that he or she was not able to meet the essential functions of their job – and most courts went along with the companies’ argument.

In a nutshell, a person either wasn’t disabled enough to meet the definitional terms of the statute– – or was too disabled to perform the “essential functions of the job” even if accommodated. (reasonable accommodation for the disabled is required under the ADA)

The long and short of it is that millions of people with disabilities had no protection from discrimination as a result of this legal mess.

The amendments to the ADA passed last year (Americans with Disabilities Act Amendments Act of 2008) fixed this problem and the regulations issued at the end of September provided most of the necessary clarifications to put real teeth into the fix.

For the first time, the EEOC regulations lists examples of impairments that will consistently meet the definition of a disability. Such impairments include (but are not limited to):

  • Blindness
  • Deafness
  • Intellectual disabilities
  • Partially or completely missing limbs
  • Mobility impairments requiring the use of a wheelchair
  • Autism
  • Cancer
  • Cerebral palsy
  • Diabetes
  • Epilepsy
  • HIV/AIDS
  • Multiple sclerosis
  • Muscular dystrophy
  • Major depression
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive-compulsive disorder
  • Schizophrenia

There are new definitions for substantial impairment, major life activity, regarded as disabled, and more  – all of which are intended to overrule the previous restrictive federal court interpretations of the legislation(including the US Supreme Court).

The new ADA amendments along with the regulations plainly state that the ADA is intended to offer broad protection to people with disabilities as well as people who are regarded to be disabled by their employers and who are discriminated because of it.

Instead of litigating the issue of whether someone is disabled,  the central issue of these cases will now be what they should have been all along – whether the employee was discriminated against because of a disability.  That’s what was intended when the Americans With Disabilities Act was passed.

Too bad it took us nineteen years to get here – but as the old adage goes, better late than never.

www.michaellouisyoung.com

www.broward.org

This article originally appeared in Employee Rights Post on November 9, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Great Disability Rights Opinion From Seventh Circuit For Employees And Their Lawyers

Tuesday, November 3rd, 2009

Employee With MS Wins Appeal In Seventh Circuit “Regarded As” Disability Decision

A case was decided by the Seventh Circuit Court of Appeals last week that was an important victory for the employee as well as his lawyers.

In Brunker v. Schwan’s Home Service, Inc. the Court reversed judgment in favor of Schwan’s on Brunker’s disability claim. It also reversed the lower court’s testy imposition of sanctions against Brunker’s lawyers.

What Happened In The Case.

Frank Brunker worked as a delivery driver for Schwan’s delivering frozen food to its customers. In February of 2003, Brunker started experiencing shaking of his hands, slurred speech, dizziness, light headedness, and headaches.

The symptoms continued, Brunker went to the doctor, tests were taken, and Brunker was told that he might have multiple sclerosis.

Brunker went on disability leave for two months. Eventually, he went back to light duty work, and then back to work without any restrictions by his physician. He performed his job and was able to complete his route in the same manner as he had in the past.

Four months later, Brunker told his supervisor that he wanted to go to the Mayo Clinic for some tests. Around the same time, he stared to get written up for various performance issues.

When Brunker returned two weeks later, after being diagnosed with multiple sclerosis, his supervisor fired him citing “unsatisfactory performance” and “unable to perform essential job functions” on the termination form.

(Notably, Brunker’s supervisor backdated the termination form to September 9, the day Brunker left for the clinic and before his diagnosis of multiple sclerosis.)

Brunker filed a claim in federal court for disability discrimination under the Americans With Disabilities Act. The lower court (N.D. Indiana) threw out the case and in an unusual move, sanctioned Brunker’s lawyers because of their discovery requests (attempts to get evidence to prove their case).

The Seventh Circuit Reverses

It would be tempting to go in to all of the reasons why the lower court’s opinion was just flat out wrong, but some of them don’t matter anymore since the Americans With Disabilities Act was amended to prevent precisely this result.

Multiple Sclerosis Is A Disability

The first part of the lower court’s ruling pronounced that Brunker had no claim because he was not disabled. In other words, the fact that he had multiple sclerosis didn’t matter, according to the court — even if that’s why he was fired — because MS was not a disability.

The court’s logic was based on case law developed under the ADA which left millions of people with disabilities unprotected from employment discrimination.

Fortunately,  the ADA was amended this past year. Under the new act, multiple sclerosis would be considered a disability (and should have been under the old act as well) so a judge theoretically should not be able to throw the case out on similar grounds. (the court did not address the amended ADA because the case was filed before it was passed)

(For information on new regulations proposed under the amended ADA see the article in the Connecticut Employment Law Blog)

Being Regarded As Disabled Is A Violation Of The ADA

Under the ADA (both the old act and the new one) a person has a claim for disability discrimination if he or she is subjected to an adverse employment decision because he or she is regarded as disabled.

To prove disability discrimination under a “regarded as” theory the employee can win by proving that:

  • The employer mistakenly believes that the employee has an impairment that substantially limits a major life activity, or
  • The employer mistakenly believes that an existing impairment, which is not actually limiting, does substantially limit a major life activity (functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working)

In this case, the Court of Appeals decided that Brunker presented enough evidence that he was fired because Schwan’s regarded him as being disabled. In reversing the lower court, the Court of Appeals stated:

The record contains adequate evidence to support a theory that Schwan’s regarded Brunker as being disabled in the major life activities of walking, caring for himself, and speaking.

For example, the day before he left for the Mayo Clinic, Schwan”s issued Brunker multiple corrective action reports, including a dress code violation, suggesting that Schwan’s did not believe that Brunker was able to care for himself because of his apparent conditions.

Furthermore, Schwan’s disciplined him even though other employees were not cited for similar violations.

As to Schwan’s motive, the Court of Appeals had this to say:

Schwan’s fired Brunker immediately after he returned from treatment, but Schwan’s backdated the termination notice to before he left for the clinic, evidently hoping to avoid the impression that his apparent condition influenced Schwan’s decision to terminate him.

These facts are sufficient to create a triable question as to whether Schwan’s regarded Bunker as disabled when it fired him.

The Court Reverses Sanctions Against The Lawyers

It’s typical in these kinds of lawsuits for lawyers representing employees to request documents from the employer defendant to either prove their case  or disprove the defendant’s case. It not only typical; it is absolutely allowed the Federal Rules of Civil Procedure.

In what I can only say is a quirky, outlandish, and mean-spirited ruling, the trial court in this case imposed sanctions on Brunker’s lawyers because they pressed to get the information they believed necessary to properly represent their client.

For example, the lawyers asked for records on whether Schawn disciplined other employees who failed to follow its dress code or to keep accurate route books (some of the reasons give for the discharge).

A request to see co-employees personnel files in order to prove unequal  treatment or whether what the company is stating is true (pretext) is quite standard, but in this case the lawyers were sanctioned for making it.

The Court of Appeals reversed, holding that the information was relevant to Brunker’s disparate treatment claim since it related to the even handedness of the company’s expectations.

The Court also criticized the company’s lawyers for refusing to produce the requested documents and then using them to support their defense.

The Court said:

Indeed Schwan’s went further than merely raising an issue it had previously argued was irrelevant.

It faulted Brunker for failing to identify any route manager who had “similar performance issues” and was treated more favorably.

And Schwan’s also discussed the route manager who was terminated for failing to service customers, despite Schwan’s successful opposition to Brunker’s request for his personnel file.

Similarly,  Schwan denied the relevance of the personnel file of another former employee, Mike Devereaux, but then used parts of that file in the summary judgment reply.

Through its actions, Schwan’s concedes that the bulk Brunker’s requests were substantially justified. We therefore vacate the award of sanctions.

Conclusion

This case is a great win for both Mr. Brunker and his lawyers. He obviously had grounds to bring a case claiming that he was terminated because of his disability – and every right to have that case heard by a jury.

As far as the lawyers go, it’s always very difficult to get companies to produce the documents we need to prove our cases. Companies control the records in these cases and they do not give them up easily even when they are plainly relevant.

At the same time there is no doubt that lawyers representing employees have to get those documents both to support our clients claims and test the employers’ defenses. It’s simply a battle that must be fought.

The fact that these lawyers were punished for doing what they needed to do for proper representation of their client is plainly wrong. Fortunately, the Seventh Circuit Court of Appeals agreed.

images: www.pocketyourdollars.com bowtielaw.files.wordpress.com

This post originally appeared in Employee Rights Post on November 1, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

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