is this discrimination?

[margo802]

What is the name of your state? Vermont
My boyfriend was hired by a company; after about 10 weeks on the job, he mentioned to a foreman that he was having discomfort from lifting the pallets he was building. The supervisor came to him, told him to puch out because he had no work for him. Bill had also applied for a computer job at the place, when he has called over the past 2 weeks, they say he is still in the computer as an employee, yet he has no positon and no money coming in. is this legal?
What i left out before was that he has had hernia surgery and asked if the pallet stack could maybe not have to be so high. then the foreman told him that they had nothing for him and that they were afraid he would get injured. is this still legal? in addition, today he got a notice to sign up for his health insurance, etc at the place. each time he calls, he is told he is still in computer as an employee. he is not eligible for UC until JUNE

 

[cbg]

Sounds legal to me. They haven't fired him; they simply haven't scheduled him because they have no work available for him within the restrictions of his surgery. They are not required to make up a job for him.

 

[margo802]

but, the surgery was 2 and a half years ago; way before he started work there. and there are no restrictions on his surgery.

 

[cbg]

Um, no offense, but those are pretty big facts to be leaving out of your initial post.

I have a strong suspicion that we are not hearing the whole story. I suspect that you may not know the whole story either.

Okay, give us a time line here. EXACTLY when was the surgery? EXACTLY when did he go to work here? EXACTLY how long has it been since he was sent home?

 

[margo802]

the surgery was done in july, 2002. he went to work at the company in question in dec, 2003. he was told there was no work for him in the pallets and selecting areas in feb,, 2004. he has called several times, inquiring about the computer positon, and is told each time that they have not decided yet, and that they have more than one opening in that department. he finally went to a temp agency this week, and today had an interview at a machine shop, as a result of signing up with the temp. sorry this has been so fragmented, but have been doing it in the evenings after working 10 hour days, so am a bit spacy.

 

[cbg]

Margo, I have given this a great deal of thought, and even giving you every possible benefit of the doubt, I still can't find anything illegal in what the company is doing.

The applicable law, if any law applies, would be the Americans with Disabilities Act. This law is designed to put those who are designated as "disabled", as defined under the statute, on an even footing with the non-disabled. However, in order to qualify under the statute, there has to be a long-term or permanent disability which affects a major life function. While "lifting" could conceivably be considered a major life function, you have indicated that your boyfriend is NOT under any medical restrictions; therefore, the likelihood that he would qualify under the statute is VERY, VERY slim.

By stretching the law so far that it is in danger of snapping back and hitting us in the face, it is VERY slightly possible that we might be able to qualify him as disabled on a little-used portion of the statute, that is that the company is "perceiving" him as disabled and thus qualifying him for protection under the statute. However, even with that in mind I still don't think he has any case, or if he does, it's not much of one. EVEN WITH ADA protection, the employer's responsibility is to find a "reasonable" accomodation. They are NOT required to make up a new job for him; to give him a job for which he is not qualified; to bump another employee out of a more favored shift or position that the other employee would normally have gotten; to give him the accomodation he wants (or even the one the doctor recommends) as long as the one they give him is effective; to allow him to violate company policy (including ones regarding attendance) or to accept sub-standard work that would not be acceptable from a non-disabled employee. (I'm not saying that he is asking for any of these things; simply telling you what the law says).

"But he wants to work and they say they have no work for him," I hear you saying. I understand. But HE went to them and complained about the work. The doctor didn't give him a medical restriction - HE decided all on his own to ask them to accomodate a condition that is marginal at best, with regards to ADA protection. Whether or not lowering the pallets would be a "reasonable" accomodation (even making the very great assumption that he is entitled to an accomodation at all) is not something that either you or I are qualified to determine. Nothing in the ADA or any other law says that they have to make a decision on the computer job when he wants them to, and certainly does not require them to give him the job if someone else has better qualifications.

One last thing. If he tries to claim that he's entitled to ADA protection on the basis that they are "perceiving" him as disabled, they are quite likely to pull out a recent US Supreme Court decision which says an employee is not covered under the ADA if his job is likely to create a danger to himself. While I don't think this kind of situation is quite what the Supremes had in mind, it does create a precedent that your boyfriend would probably not have an easy time overcoming.

Meanwhile, he has not been fired so he can't claim disability discrimination or wrongful termination. He is still eligible for benefits - witness their sending him the health insurance info. If he is not eligible for unemployment that is the decision of the state, not his employer. He is at liberty to find another job if he wants to. I fully understand the difficulty of having no income.

But is what his company doing legal? Gotta say yes.

 

[margo802]

thanks for the info. he does realize that he has been sort of terminated and has been to interviews for jobs. i understand just what you are saying; i guess some companies are not willing to keep smeone who is at risk, thank god mine keeps me although i am quite arthritic and am slow with movement at times.