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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
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.
Wednesday, August 20, 2014
By Kim Moore | OB Editor
The 2015 survey launched this week. It is open to for-profit private and public companies that have at least 15 full- or part-time employees in Oregon.
Wednesday, August 06, 2014
BY LINDA BAKER | OB EDITOR
Portland startup Green Endeavor strikes gold, inking a partnership with Underwriters Laboratories, an Illinois-based consulting and certification company with offices in 46 countries.
Monday, July 07, 2014
BY TOM COX | OB BLOGGER
Named after the 2010 experiment by Thomas Ryan, "Robin Sages" are fake social media profiles designed to encourage linking and divulging valuable information.
Thursday, July 03, 2014
BY TED AUSTIN & MIKE BAELE | GUEST CONTRIBUTORS
The Office of Economic Analysis announced that Oregon is currently enjoying the strongest job growth since 2006. While this resurgence has been welcome, the lingering effects of the 2008 “Great Recession” continues to affect Oregon businesses, especially with regard to estate planning and business succession.
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?”
Thursday, July 24, 2014
BY LINDA BAKER | OB EDITOR
Remember the naysayers? Those who called the South Waterfront aerial tram a boondoggle? Those who rejoiced at the massive sell off of luxury condos at the John Ross and Atwater Place?
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