fired for being disabled

[cyjeff]

Suppose you cite the laws that support your claim that in any state you can be fired for a disability.

Okay... from Americans with Disabilities Act Questions and Answers, the ADA manual...The misspellings are THEIRS...

Q. Who is a "qualified individual with a disability?"

A. A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the oeessential functionsî of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.

Hmmm... there is that nasty "essential functions of the position" thing... let's look further...

But, you say, someone ELSE could take her stuff out or she could make several trips...

Q. What are the limitations on the obligation to make a reasonable accommodation?

A. The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation.

So, in a nutshell, the employer does NOT have to accommodate any and all requests of the OP... and can most CERTAINLY fire her if her disability prevents her from performing the core job functions.

If you really don't know what you are talking about, I suggest you stop talking. Wasn't it Abraham Lincoln that said (and I paraphrase), "It is better to remain quiet and be thought a fool than to speak and remove all doubt."

 

[pattytx]

cyjeff, it was either Lincoln or Churchill.

 

[ecmst12]

Google says it's Lincoln

 

[Willlyjo]

OP, Willyjo's advice has been the LEAST helpful thing posted here and you should disregard it entirely.

You CAN be fired for having a disability, IF the disability prevents you from performing the essential functions of the job. And if you believe you were fired for having a disability DESPITE being able to perform essential functions of the job, you can contact the EEOC - in fact, you MUST before you can even think about a lawsuit! You can expect it to take 6 months to 1 year to investigate your claim. And don't expect to get a lot of money even if you ARE told you have a case - you won't. Right now, you are best off getting an office job that doesn't require a lot of physical activity.

Again because the EEOC takes so long investigating claims it is best to consult a lawyer first!!! I've been there--done that! Let the lawyer give you guidance instead of these know it alls who like to chastise people like me who have had the experience that it seems through their ignorance they don't.

 

[cyjeff]

Again because the EEOC takes so long investigating claims it is best to consult a lawyer first!!! I've been there--done that! Let the lawyer give you guidance instead of these know it alls who like to chastise people like me who have had the experience that it seems through their ignorance they don't.

What part of my quotation from the ADA website didn't address the problem?

What part of my quotation from the ADA website stated that it was illegal to fire someone with a disability?

I am still waiting for your quotation that shows the truths you are speaking of.

It is also probably worth saying that a single person's experience within a vastly different case may or may not be applicable to the OP's case. Usually, it is not. Therefore, when in doubt, you will find we fall back to the statutes as printed.

 

[ecmst12]

Since the EEOC will take so long, it doesn't much matter whether you consult the lawyer before or after you file; and in fact I would advise filing FIRST just to get the process started. But it is never a bad idea to talk to a
lawyer if you feel your rights have been violated. The worst they can do is decline your case. If they won't take it on contingency but want cash up front, it means your case is weak at best and they don't think they can get you much if anything.

I only chastize people who give wrong information, or those who receive correct information and get angry because it's not what they wanted to hear. This OP might in fact have a case, or she might not - you should not give such false hope to say she DEFINITELY has a case when you don't know all the facts and specifics.

 

[Willlyjo]

Since the EEOC will take so long, it doesn't much matter whether you consult the lawyer before or after you file; and in fact I would advise filing FIRST just to get the process started. But it is never a bad idea to talk to a
lawyer if you feel your rights have been violated. The worst they can do is decline your case. If they won't take it on contingency but want cash up front, it means your case is weak at best and they don't think they can get you much if anything.

I only chastize people who give wrong information, or those who receive correct information and get angry because it's not what they wanted to hear. This OP might in fact have a case, or she might not - you should not give such false hope to say she DEFINITELY has a case when you don't know all the facts and specifics.

Fair enough as to what you say...I only told the OP it was my belief she had a case based on what she said. She did say her former boss did lay out accommodations if she couldn't lift trays. Such accommodations included: carrying a tray with 2 plates at a time and/or being out on the floor in a capacity where it is less strenuous. If a lawyer could show through prepondorance of evidence that her boss actually pointed out such accommodations, then decided to fire her instead of allowing her such accommodations, then yes, I stand by my belief that she would have a case. Let it be known also, no matter how good a case may seem, something can happen to make it go away so I never claim anyone would DEFINITELY have a case. Also, I filed a claim in a previous litigation, with the EEOC. Their investigation took months and wasn't very effective. I did get a "Right to Sue' letter and subsequently found I could have filed suit even without filing with EEOC in the first place. Based on my experience, it wouldn't hurt to file with the EEOC, however, I would consult a lawyer first. If the lawyer takes the case without me having to retain him, I'm in. If not then why even go to the EEOC?

 

[krh69]

Wow, I think I stumbled on to the wrond website, it appears that a group of children got into this site and are arguing bitterly over who is right and wrong. I apologize if my question caused all this ill will.

I have a simple case, and all I wanted was a little guidance on how to proceed. I see now that it is best to just contact a lawyer in my area. Of course there is more to my story, I can perform the essential functions of the job. I can carry plates, 2 on my left arm and one on my right, but they insisted that I carry four on a tray with my right hand (they didn't specifically say right hand, but since i am right handed that is the only one I can use.

Instead of letting me use other means to the same end, the employer insisted that I do it their way, Which, to me, does not seem fair or legal, especially since I have a disability which I advised them of when I was hired.

So if no one can give me sound advice without bickering and name calling, then just forget it. Thanks for your time.

 

[cyjeff]

Wow, I think I stumbled on to the wrond website, it appears that a group of children got into this site and are arguing bitterly over who is right and wrong. I apologize if my question caused all this ill will.

Your question wasn't the cause. It was one poster that had no idea of what he/she was talking about.

I have a simple case, and all I wanted was a little guidance on how to proceed. I see now that it is best to just contact a lawyer in my area. Of course there is more to my story, I can perform the essential functions of the job. I can carry plates, 2 on my left arm and one on my right, but they insisted that I carry four on a tray with my right hand (they didn't specifically say right hand, but since i am right handed that is the only one I can use.

Asking a lawyer is always your option.

Instead of letting me use other means to the same end, the employer insisted that I do it their way, Which, to me, does not seem fair or legal, especially since I have a disability which I advised them of when I was hired.

And this is why we came down so hard on the errant poster.

Fair and legal may not have anything to do with each other. Did you read what I posted from the ADA website?

So if no one can give me sound advice without bickering and name calling, then just forget it. Thanks for your time.

So, if we don't give you the answer you want, you would rather just take the wrong advice from an incorrect poster?

Fine....

Here is what you do... don't bother seeing if your disability is ACTUALLY a disability under ADA (not all are, by the way) and just get yourself a lawyer and sue.

I would go for $5 million and take two.

 

[cyjeff]

Fair enough as to what you say...I only told the OP it was my belief she had a case based on what she said.

Your belief means nothing. I quoted law and you are STILL arguing the point.

I honestly don't know how to get through to you.

She did say her former boss did lay out accommodations if she couldn't lift trays. Such accommodations included: carrying a tray with 2 plates at a time and/or being out on the floor in a capacity where it is less strenuous

Those were HER suggestions. Not management's. I don't know of less strenuous waitress capacity. Explain how that works.

If a lawyer could show through prepondorance of evidence that her boss actually pointed out such accommodations, then decided to fire her instead of allowing her such accommodations, then yes, I stand by my belief that she would have a case.

And you would be wrong. AS WAS POSTED IN MY QUOTE, just because an accommodation is discussed does not mean that the employer MUST do it.. especially if it comes in direct opposition to "Undue hardship" upon the business.

This is like asking an airline to provide an extra pilot so that our blind pilot friend can still fly.

They aren't going to do it... because then the blind pilot adds no value.

If she can't carry food and they have to pay someone else to do it, that would, again, be adding no value.

Let it be known also, no matter how good a case may seem, something can happen to make it go away so I never claim anyone would DEFINITELY have a case

I know you don't read MY posts, but now you don't read YOURS? Let me help...

I believe you do have a case against your employer for Wrongful Termination in breach of the Public Policy of your State. Nobody can be fired because of a disability.

Remember that part? Where, in no uncertain terms, you said that NOBODY CAN BE FIRED BECAUSE OF A DISABILITY. You thought it SO right that you REPOSTED it from #4 to #7 to #11 when, after I posted, you quickly got off your high horse without apologizing for knowingly giving the OP incorrect and improper legal advice.

If you don't know what you are talking about, do us all a favor and stop posting.

Also, I filed a claim in a previous litigation, with the EEOC.

And your case, for a different disability in another state under completely different circumstances, IS NOT THIS CASE and has no relevance.

This is like OJ saying, "Go ahead and commit murder. They will find you innocent regardless of the evidence" because, after all, that is what happened to him.

YOUR CASE IS NOT EVERY CASE.

Their investigation took months and wasn't very effective.

Again, YOUR CASE IS NOT EVERY CASE.

I did get a "Right to Sue' letter and subsequently found I could have filed suit even without filing with EEOC in the first place

Again, YOUR CASE IS NOT EVERY CASE.

Based on my experience, it wouldn't hurt to file with the EEOC, however, I would consult a lawyer first. If the lawyer takes the case without me having to retain him, I'm in. If not then why even go to the EEOC?

Again, YOUR CASE IS NOT EVERY CASE.

are you TRYING to be intentionally dense?

I have actually tried to be nice to you... I really have... but you persist in maintaining that your case is some sort of landmark case that all subsequent cases must follow. Now, your insistence that you have a CLUE is worse than tiring... it is becoming dangerous and opening this site up to liability.

If the OP wants to file, her first step, NO EXCEPTIONS, is the EEOC. Period. End of story. If she goes to a judge the first question will be, "What did the EEOC say?" She will answer, "This dim bulb on the web said I didn't have to." Judge: "Dim bulb was wrong. Bye now. Come back when you are ready to do this properly."

JUST BECAUSE YOUR CASE IS DIFFERENT MEANS NOTHING....

 

[ecmst12]

No one on this board can tell you whether a judge would think the accomodations you requested would be reasonable or not. The best person to do that would be an experienced ADA lawyer in your area. It is very likely that your condition will qualify as a disability, the main question is the reasonableness of the accomodations.

You should also realize that it's not feasible for you to stay in this type of physical work forever, given your illness. You should definitely look into moving into a more sustainable type of employment, which will be less likely to aggravate your condition.

 

[Willlyjo]

Okay... from Americans with Disabilities Act Questions and Answers, the ADA manual...The misspellings are THEIRS...



Hmmm... there is that nasty "essential functions of the position" thing... let's look further...

But, you say, someone ELSE could take her stuff out or she could make several trips...



So, in a nutshell, the employer does NOT have to accommodate any and all requests of the OP... and can most CERTAINLY fire her if her disability prevents her from performing the core job functions.

If you really don't know what you are talking about, I suggest you stop talking. Wasn't it Abraham Lincoln that said (and I paraphrase), "It is better to remain quiet and be thought a fool than to speak and remove all doubt."

Jeff...you are retarded!!! My case is not every case but there are relevancies!! You have no common sense!! Since when must one quote laws and such to give good advice based on experience. You and others here are hardly lawyers so quit trying to act like one. You are just an idiot who likes to act intelligent which you aren't. Also, the OP said it was her boss who suggested such accommodations if needed and then he proceeded to terminate her. I don't know where you come from but if you don't agree that if it was proven he said that to her and it might be hard to prove, then she would have a very good case for Wrongful Termination in most states.

 

[cyjeff]

Jeff...you are retarded!!!

As a person that has spent every summer for over 20 years working with the Special Olympics, I take great offense at your statement.

That, somehow, mentally challenged folk are somehow worthless or stupid in your opinion. That is beneath you.

Let's start your apology there.

My case is not every case but there are relevancies!!

There are more things different than the same.

All I saw that was the same was that you were both working and had an affliction that COULD have qualified for ADA.

The type of work, the state in which that work was completed, the circumstances surrounding the tasks, the determination of which tasks could be considered core, the ability of each business to provide accomodation, the afflictions themselves AND the next steps in resolving this issue are all different.

Other than every single issue that is relevant to the case from a legal standpoint, you have the exact same case...

You have no common sense!! Since when must one quote laws and such to give good advice based on experience.

Maybe you missed the big sign at the top that mentions "legal".

If you make blanket statements like "No one can be fired for a disability" that is SO WRONG it can almost find you in a court defending your argument before a judge, you better make damn sure that there is a shred of truth in it.

Your experience doesn't give you carte blanche to quote nonexistant laws, procedures and results as truth.

You are a liar... and didn't like to be called out on it. I understand that is difficult. I recommend researching more and talking less.

In every single post to this board, you have given absolutely worthless and, from a legal standpoint, completely WRONG advice on a routine basis.

You and others here are hardly lawyers so quit trying to act like one. You are just an idiot who likes to act intelligent which you aren't.

I never said I was an attorney.

However, I do have over 20 years of experience working with hundreds of companies on just this type of issue. I have helped DESIGN stores to provide accomodation. I have created the teaching materials and taught countless classes to employees on their rights and responsibilites under various state and federal statute.

You got one case under your belt. That hardly makes you an expert.

If you are going to call everyone that can prove you wrong an idiot, you are going to have a pretty lonely life.

Also, the OP said it was her boss who suggested such accommodations if needed and then he proceeded to terminate her. I don't know where you come from but if you don't agree that if it was proven he said that to her and it might be hard to prove, then she would have a very good case for Wrongful Termination in most states.

"If you don't agree that if it was proven he said that to her and it might be hard to prove, then she would have a very good case for Wrongful Termination in most states"

First, that sentence is very difficult to read. Please proof before posting.

Second, if it is a violation of ADA, then it would be the same in EVERY state as ADA is a federal statute.

Third, just because the accomodations were discussed doesn't somehow bind the employer to do them. Yes, proper accomodations could be discussed. Then, the employer takes those accomodations and finds if they are reasonable in his/her business.

It all comes down to reasonable accomodation... that reasonable accomodation standard may change as the company changes. The only place, repeat ONLY place, such a determination can be made is in a court of law...

And that is only IF the OP's illness qualifies under ADA. You seem to think it is a foregone conclusion that any illness is ADA. It isn't.

The only, repeat ONLY, illness that is automatically covered under ADA is AIDS. In every other case, the plaintiff has file for ADA accomodation.

I see no place in this post that states such validation has been sought and approved... do you?

Lastly, the reason that the OP was terminated... read all the way to the end now... was because she was tired and looked out of it.

NO employer must allow an employee to sleep at work or to appear a danger to herself and/or to others. If the customers were complaining about her, that is all it would take.

 

[Willlyjo]

Wow, I think I stumbled on to the wrond website, it appears that a group of children got into this site and are arguing bitterly over who is right and wrong. I apologize if my question caused all this ill will.

I have a simple case, and all I wanted was a little guidance on how to proceed. I see now that it is best to just contact a lawyer in my area. Of course there is more to my story, I can perform the essential functions of the job. I can carry plates, 2 on my left arm and one on my right, but they insisted that I carry four on a tray with my right hand (they didn't specifically say right hand, but since i am right handed that is the only one I can use.

Instead of letting me use other means to the same end, the employer insisted that I do it their way, Which, to me, does not seem fair or legal, especially since I have a disability which I advised them of when I was hired.

So if no one can give me sound advice without bickering and name calling, then just forget it. Thanks for your time.

Well said, lol, the main thing is to consult a lawyer. Nobody can just get a lawyer and sue, it don't work that way but Jeff is blowing fuses so he don't make sense...again!!! You can listen to what is said in efforts to help you or not. I don't think I gave you any advice that would have harmed you. These other posters act like I advised you to jump off a building without a parachute.

 

[ecmst12]

It is not acceptable to insult and name-call other posters. And "retarded" is incredibly offensive to many people when used as an insult rather then as the medical/psychological description of a person with a low IQ. If you're going to insult someone, at least have a modicum of class when you do so.

If you are going to continue to hang around this board, you are going to learn how to accept when you are wrong, and concede to the person who corrected you, especially when they post the relevant statutes or information explaining WHY you are wrong. We are all wrong from time to time, everyone makes mistakes, most of us are here because we think the law is interesting and like to learn new things. Rather then lashing out at someone trying to teach you more about the law, you need to say, "Thanks, I wasn't aware of that, sorry if I posted anything misleading, I'll keep this new information in mind for future posts." If you continue to take it personally every time someone points out that you made a mistake, you're not going to last long around here.