Workplace Accommodation

[editor]

State employees not fully protected by U.S. disability laws

After clicking on the Message Board listed at EnableLink's Law and Social Policy forum recently, we discovered a fascinating e-mail at http://128.100.250.13/phorum/read.php?f=28&i=93&t=70 from JoettaB, a former US state employee, who was unable to obtain appropriate workplace accommodation or damages in lieu thereof. Our first response is directly below her message. Follow the thread of our e-mails as we continue to investigate this disturbing fact pattern. E-mails have been edited for space and clarity.

From: Editor@bcdisabilities.com [mailto:editor@bcdisabilities.com]
Sent: Wednesday, December 10, 2003 5:51 PM
Subject: State employees and the ADA

Hello Joetta,

Editor: Did you speak to a lawyer?

Joetta Bragg: Yes. Now that I have gone on disability leave, she states that there is nothing I can do about the matter until I return to work
and am fired.

Editor: Could you tell us more about your job and the accommodation your employer offered?

Joetta Bragg: The job at the time was Administrative Assistant 4--Program Development Administrator, although they "reorganized" me into a downgraded position of Administrtive Assistant 3--Fleet Manager, a job I had not yet begun prior to my disability leave in June, 2003. They put me in a wheelchair-accessible building and raised an old wooden desk off the floor for me. This did not even come close to resolving the obstacles I faced at the time.

Editor: You also write about incidents of harassment. You need to set out the specifics: who, what, where, when, why, witnesses and so on for each incident. Please tell us more at editor@bcdisabilities.com.

Joetta Bragg: This would be very long, more than I would be up to or comfortable typing in an e-mail. It involves an informal EEO (Equal Employment Opportunity) complaint (see the procedure for Filing a charge of employment discrimination, http://www.eeoc.gov/charge/overview_charge_filing.html, at the U.S. Equal Opportunity Commission, http://www.eeoc.gov/) against the Department of Natural Resources (click on DNR's homepage at http://www.dnr.state.oh.us/default.htm and, ironically, on employee wellness initiatives at http://www.dnr.state.oh.us/hr/wellness/) filed with the Department of Administrative Services[/b][/i] that was not properly investigated. In addition, the investigating EEO officer became insulting and abusive. I probably have 500 pages or more paperwork on the subject. Here is the short version:

The 'who is my former boss, an assistant chief turned chief, and her boss, the deputy director, as well as other department staff, including the human resources EEO officer. I worked for the Ohio Department of Natural Resources in the now defunct Division of Civilian Conservation. The harassment continued from late 2001 through to the present. The 'why' may include everything from personal retaliation for conflicts with my boss unrelated to accommodation to a general unwillingness by the department to bring public buildings (eight of them) within ADA (Americans with Disabilities Act) guidelines and provide a less adversarial, more streamlined accommodation process. In addition, the information technology department chose to collaborate with my employer to preclude any work-at-home options. Many witnesses exist but, unfortunately, most if not all are unwilling to come forward for fear of losing their jobs.

In summary, I felt no alternative but to go on disability leave. I am now filing for disability retirement because the agency was not willing to work with me to create reasonable accommodations, initiating instead what felt like a harassment campaign, which exacerbated my health problems.

Editor: We may be able to research your facts and put you in touch with someone able to advise. In any jurisdiction with a legal system, there is usually a remedy for the type of situation you've described.

Joetta Bragg: I also talked with the Ohio Civil Rights Commission, which was unable to help me. I spoke with representatives of the Governor's Council on Disability, where officials said they couldn't help me. Of course, they work for the state of Ohio, too. I spoke with the Ohio Attorney General's office, which, I was told, would be obligated to represent my employer, the state, in an action, not me.

Ed. and JB

Note: For links to statutes and a discussion of relevant case law regarding the rights of state employees, click on EL infonet.com, Employment Law Information Network at http://www.elinfonet.com/fedarticles/5/32 and on the excellent Bazelon Center for Mental Health Law at http://www.bazelon.org/issues/disabilityrights/resources/index.htm, which includes links to statutes, leading cases, documents filed with the court and authoritative analysis of decisions and their implications. See also disability materials at Overlawyered.com, http://overlawyered.com/topics/disab.html as well as the material under U.S. Disability Legislation at our own Worldwide Disabilities forum.





From: editor@bcdisabilities.com [mailto:editor@bcdisabilities.com]
Sent: Friday, December 12, 2003 4:35 PM
To: joettabragg@wowway.com
Subject: More Questions

Hello, Joetta,

Before we look into your problem further, we need the following information:

1. Your lawyer suggested she couldn't help until you return to work and are fired. Is returning to work a possibility for you right now?

Joetta Bragg: Not for awhile, and especially not under the circumstances of my combined health problems, inaccessible job, no van and/or attendant to work my hoist for transportation to and from work and meetings, no work-at-home options for my truly bad days, a hostile work environment and the prospect of facing disciplinary charges immediately upon my return, a ploy calculated in retaliation of my EEO complaint, in my view, although the agency emphatically denies this to be the case.

If not, why not?

Joetta Bragg: Overt stress for reasons described above accelerates my health problems to life-threatening levels.

Can the reason be substantiated by a medical report?

Joetta Bragg: Yes, several.

2. Harassment is a big area. Did you speak to your lawyer about it? If not, why not?

Joetta Bragg: Yes, I spoke to her about it. She believes my chances are poor due to the recent U.S. Supreme Court rulings on state rights (See Note above) as well as the fact that I have suffered no recoverable damages since I have not lost my job or lost any money (they are paying me disability leave), and the state cannot be sued for emotional distress or other similarly intangible wrongdoings.

She also pointed out that I am in a catch-22 of sorts. I cannot make ends meet without money. However, if I press the issue further, she believes the state will fight my application for disability retirement and/or continue the disciplinary action and fire me, which would suspend my disability leave payments until reinstatement either by the Labor Relations Board or the courts.

On the other hand, if I take disability retirement, I will have the option of returning to work at any point up to three years from the onset of my disability if my condition abates. Of course, when/if I return, I will still be facing the same obstacles. There is no time limit on disciplinary action, although my lawyer believes as I do that with time I would be able to disprove any evidence the agency purports to have against me.

If not, what was the nature of the harassment? Witnesses are not essential, by the way. Many wrongs occur when no one else is present. You have your own account of what happened regardless of who was there. What's most important is that the events or actions of which you complain truly constitute harassment within the applicable legal definition. Different kinds of harassment have different definitions.

Joetta Bragg: The nature of the harassment is wide ranging. It involved verbal harassment, excluding me from meetings, segregating me from co-workers, not allowing me the means with which to complete my work, badgering me to give up my supervisory duties, forcing me to accept accommodations that I have repeatedly stated would not work. The agency also failed to follow EEO recommendations. I was harassed on the phone by both the agency's EEO officer and my supervisor. I was forced to accept lower pay. I had disciplinary charges filed against me without cause.

You say you have 500 pages of material. Boil down one incident of harassment into one or two sentences and let's see where we go.

Joetta Bragg: During one incident, my supervisor, the division chief, ordered me to move to Building I (one full city block away from my co-workers) as part of my disability accommodation. When I said it felt as if I was being sent to the back of the bus, she became outraged and told me I had no right to use terminology intended exclusively, in her view, to describe racial segregation. I disagreed, suggesting that if she looked at the back of the metaphorical bus today, she would see us disabled folks riding silently in our wheelchairs.

My biggest trouble, however, seemed to stem from my request to work part time at home. I am extremely computer literate. My former position was predominantly computer related. In fact, I was the IT co-ordinator/supervisor for my division throughout my employment with the agency. I knew how to connect from home to the agency network, and I had worked from home pro-bono in the past. I didn't see why I couldn't work from home for pay as part of the accommodation solution. Nevertheless, my request was denied because my superiors said they felt they "needed access to me." Policies were later adopted prohibiting employees from working at home via personal computer and from connecting to the agency network from home.

In the meantime, administrative services reviewed my EEO complaint and issued a finding of non-discrimination, which included several recommendations regarding my accommodation. Coincidentally, the very next day, I was placed under investigation for alleged computer wrongdoings I did not commit.

For awhile, the matter appeared to have been dropped. However, the day after the deadline to appeal my newly downgraded position, I was told I would be brought before a disciplinary hearing that might result in my termination. To me, it seemed like an elaborate scheme by my employers to deny my request for accommodation, coerce me to shut up and, if I didn't, to rid themselves of the problem.

Ed. and JB

Note: Joetta recently became the founder and editor- in-chief of a new disability website, AngryGimp.com, at http://www.angrygimp.com/, which she maintains while pursuing a long-neglected career in fiction.






Enlisting comment from Overlawyered.com

From: <editor>
To: <editor>
Cc: <editor>
Sent: Monday, June 28, 2004 11:36 AM
Subject: Workplace Accommodation for the Disabled - The Chilling Effect of the ADA

Hello Walter Olson,

We're a disability consumer/advocacy website from Vancouver, B.C. on the left coast of Canada at http://www.bcdisabilities.com, and we were admiring your 1999 article, Standard Accommodations, at http://reason.com/9902/co.wo.reasonable.shtml. What are your thoughts, we wonder, on the litigation prospects of a tort we call 'faddling,' a violation not unlike sexual harassment in the workplace in which the disabled employee's accommodations are challenged or impeded, often without warning, without honest and open explanation and without justification?

It seems to be difficult somehow for lawyers to characterize the true nature of the plaintiff's harm in these cases. It's not really discrimination. It's not really harassment. But it's something that happens exclusively to the handicapped, a supposedly protected class.

Most complainants in our experience report a very subtle, sophistocated approach by employers usually involving a series of attacks that might begin, for example, with the late payment of a bill submitted by the handicapped employee for a personal attendant. Or maybe a request for certain disability supports may be met by accommodation in an isolated location, far from the hub of the workplace, away from services, documents and discussion with other employees, all of which are essential to a job well done. Meetings may be held in secret in which unfair or inappropriate accommodation decisions are taken and later presented to the employee as faits accomplis. The employee may even be advised to obtain legal counsel. One way or another, the workplace has been poisoned.

There seems to be little or no legal recourse for the employee who has been 'faddled.' Fighting gets you lablelled a trouble-maker, so there goes the reference, which will be necessary following the inevitable termination. Not fighting, however, may be viewed by the courts as consent and acceptance.

In Canada, unfortunately, recourse tends to be ltd to admin tribunals, which, in our view, fail to take into account the true cost of a 'poisoned workplace' and the loss of a job to someone with a disability. What are chances of acquiring a similar position? It's not unlike splitting the atom.

We're especially concerned about the onerous burden of proof in these cases. Isn't it a breach of fundamental justice to require the disabled person not only to identify, beg and secure accommodation from an employer but also to be ready to defend these supports throughout the employment contract?

If you search the terms, 'workplace accommodation,' at our site, you'll see the record of our research regarding the rights of a handicapped employee from Ohio. Query: How the hell is it that the state can avoid compliance with a federal statute, which is nevertheless required of the private sector? And what have we come to when the best advice of an employment attorney in a case of 'faddling' is often not to fight?

We'd love to hear from you on these or similar topics. It's not every day that we find a senior fellow with whom to converse on ADA matters. Please drop us a line or a link, perhaps. In the meantime, we'll explore http://overlawyered.com/topics/disab.html, where we found your article. Thank you for your attention. We look forward to hearing from you.

Regards,

Editor@bcdisabilities.com

From: "Walter Olson" <editor>
To: <editor>
Sent: Monday, July 12, 2004 4:54 PM
Subject: Workplace Accommodation for the Disabled - The Chilling Effect of the ADA

Appreciate your interest in my views. I've never run across the term "faddling", but U.S. federal courts handling ADA complaints have certainly been presented with fact patterns of the sort you describe under other nomenclature. A concept of "disability harassment" along the lines of racial/sexual harassment is well established, and even conduct which does not rise to the level of seriousness needed to establish harassment can sometimes be challenged on the grounds that it constitutes lack of accommodation, or retaliation, or some other actionable category. But it's my impression that judges (and juries, which may also decide these issues) vary widely in how willing they are to find liability. Good luck and thanks for writing -- W.O.

[Guest]

From: "Walter Olson" <editor>
To: <editor>
Sent: Monday, July 12, 2004 4:54 PM
Subject: Workplace Accommodation for the Disabled - The Chilling Effect of the ADA

Appreciate your interest in my views. I've never run across the term "faddling", but U.S. federal courts handling ADA complaints have certainly been presented with fact patterns of the sort you describe under other nomenclature. A concept of "disability harassment" along the lines of racial/sexual harassment is well established, and even conduct which does not rise to the level of seriousness needed to establish harassment can sometimes be challenged on the grounds that it constitutes lack of accommodation, or retaliation, or some other actionable category. But it's my impression that judges (and juries, which may also decide these issues) vary widely in how willing they are to find liability. Good luck and thanks for writing -- W.O.