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|Wednesday, February 01, 2006|
John McDuffy, a Portland commercial truck driver weighing more than 500 pounds, was suspended without pay after he complained about the size of his truck. The court this past October agreed with McDuffy that this constituted disability discrimination and awarded him lost wages and a monetary sum for emotional distress. Having won the employment discrimination suit, McDuffy also is entitled to his attorney fees.
Oregon law states that when otherwise qualified people are disabled, employers may not (a) refuse to hire, employ or promote them; (b) bar or discharge them from employment; or (c) discriminate against them in compensation or in terms, conditions or privileges of employment. The Americans with Disabilities Act (ADA) contains the same prohibitions.
During McDuffy’s trial, a video of a fi tness-for-duty examination clearly demonstrated his weight did not keep him from performing his duties as a truck driver. Michael Ross, McDuffy’s lawyer, noted the jury seemed most concerned by the fact that there was no reason to suspend McDuffy. After McDuffy complained about the size of the cab of a recently assigned truck, a supervisor e-mailed the human resources department that a bigger truck had been assigned, saying “things seem to be fi ne now.”
No performance problem, medical issue or safety incident prompted the suspension. As McDuffy stated, “I’d always done my job.”
The lesson for employers, supervisors and human resources managers is this: Focus on performance, on doing the job. Don’t make assumptions about the problems an employee may have because of a medical condition; evaluate what the employee is currently doing, just as you would for any other (nonobese, nondisabled) employee.
This also is true for hiring decisions. A 1990 Bureau of Labor and Industries final order found that an Oregon correctional institution employer violated the law by refusing to hire an obese corrections offi cer because the doctor performing the pre-employment medical exam noted an unhealthy heart rate and suggested the individual should lose weight. A closer evaluation by the bureau indicated the applicant would have been capable of performing the job but was not hired because of a perception that his size would impair his ability to perform the functions of the position.
On the other hand, an employer is not required to ignore a serious health condition that the employer reasonably believes may cause a direct threat to others, or to the employee. The classic example is the employee who operates heavy machinery and suffers from epilepsy not adequately controlled by medication. In that situation, an employer is not required to ignore the danger, although the employer should certainly talk to the employee about whether there could be a modifi cation to the position or even an alternate position that would allow the employee to work safely.
This was the defense raised in McDuffy’s case. The employer cited concern for McDuffy’s safety as the reason for suspending McDuffy and ordering him to obtain medical certifi cation of fi tness for duty. Significantly, the employer failed to ask the doctor whether, if a threat existed, some accommodation might be possible to minimize or eliminate that threat. Although the employer returned McDuffy to work after becoming aware there was no danger, the employer refused to pay the wages lost during the suspension.
McDuffy’s lawyer says the case would never have come to trial (saving the employer the costs of defense and damages) if the employer had agreed to pay McDuffy’s lost wages.
Ultimately, employers should keep in mind that disability laws were established to protect employees from arbitrary decisions that would keep them from earning a living. McDuffy wanted only to work and support his family, but was prevented from doing so because his employer apparently acted on assumptions and stereotypes rather than facts — a violation of both the letter and the spirit of the law.
— Shari Lane
Friday, July 18, 2014
BY JASON NORRIS | OB GUEST CONTRIBUTOR
Back in May, we shared a common Wall Street quote about investing, “Sell in May and go away.” Fast forward to July and the most common question we have been getting from clients is, “When is the market pullback going to occur?”
Wednesday, July 09, 2014
BY LINDA BAKER | OB EDITOR
Scott Kveton, the CEO of Urban Airship is taking a leave of absence from the company. As the story continues to unfold, here’s our perspective on a few of the key players.
Thursday, June 12, 2014
BY ANDREA DURBIN | OB GUEST BLOGGER
Last week, the Obama administration took an important and welcomed step in the effort to protect the health and well-being of all Oregonians by limiting carbon pollution from existing power plants.
Thursday, June 05, 2014
BY HANNAH WALLACE | OB BLOGGER
What does it take to launch and run one of these mobile food businesses?
Friday, June 27, 2014
BY JASON NORRIS | OB BLOGGER
Over the last several months we have seen a wave of cross-border acquisitions, primarily U.S.-based companies looking to purchase non-U.S.-based companies. There are a few reasons for this, but the main culprit is the U.S. corporate tax system. The United States has one of the highest corporate tax rates in the world.
Tuesday, July 08, 2014
BY LINDA BAKER | OB EDITOR
The New Yorker recently published a sharply worded critique of “disruptive innovation,” one of the most widely cited theories in the business world today. The article raises questions about the descriptive value of disruption and innovation — whether the terms are mere buzzwords or actually explain today's extraordinarily complex and fast changing business environment.
Update: We caught up with Portland's Thomas Thurston, who shared his data driven take on the disruption controversy.
Monday, June 16, 2014
The Oregon economy could get a boost from a new trade agreement being negotiated between the U.S. and the European Union.
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