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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
Wednesday, August 19, 2015
BY GINA BINOLE
Screening for “culture fit” has become an essential part of the hiring process. But do like-minded employees actually build strong companies — or merely breed consensus culture?
Wednesday, July 15, 2015
Oregon's roads are crumbling, and revenues from state and local gas taxes are not sufficient to pay for improvements. We asked readers if the private sector should help fund transportation maintenance and repairs. Research partner CFM Strategic Communications conducted the poll of 366 readers in February.
Friday, July 10, 2015
BY JACOB PALMER
Most of the food Americans consume is trucked in from hundreds of miles away. Eric Wilson, co-founder and CEO of Gro-volution, wants to change that. So this past spring, the Air Force veteran and former greenhouse manager started work on an alternative farming system he claims is more efficient than conventional agriculture, and also shortens the distance between the consumer and the farm.
Friday, July 10, 2015
BY DAN COOK
The Affordable Care Act has triggered a rush on health care plan redesign, a process fraught with hidden costs and consequences.
Wednesday, August 26, 2015
BY KIM MOORE AND LINDA BAKER
Child care in Oregon is expensive and hard to find. We delved into the numbers and talked to a few executives and managers about day care costs, accessibility and work-life balance.
Wednesday, July 15, 2015
We asked readers how Obamacare has impacted their business.
Thursday, August 20, 2015
Which of the following would be most effective in reducing the cost of operating a public university in Oregon?
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Yesterday, a divided National Labor Relations Board dropped another hammer on the employer community. In a long-awaited and much debated move, the Board jettisoned the decades old standard for determining when two independent businesses should be considered joint employers of an individual worker for collective bargaining purposes.
Transforming the culture of Oregon’s educational leadership.
The Board dismissed a petition related to efforts to unionize the Northwestern University football team.
Oregon Sick Leave is here, and changes to the federal white-collar worker regulations are on the way. This workshop will prepare you for both. We invite you to participate in an interactive discussion on how to start planning now for the future impact on your operations and finances.
Presented by OEN + CENTRL + YESpdx.
This Roundtable will cover numerous issues under the employer "shared responsibility" rules of the Affordable Care Act, including how to track the "full-time" status of variable-hour employees, temporary or seasonal employees, and employees who experience a change in status or a break in service. Additionally, we will provide a brief overview of Code sections 6055 and 6056, which require most mid-sized and large employers to submit their first information reports to the IRS in early 2016 regarding the health insurance coverage being offered to employees. We invite you to participate in an interactive discussion on how to prepare for the future impact of the shared responsibility rules on your operations and finances.