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Federal Employee's Request for Reasonable Accommodation is a Protected Activity - Agency May Not Retaliate

The Rehabilitation Act of 1973, 29 U.S.C. §701 et seq., protects a federal worker from discrimination because he or she has a disability.  The Act requires agencies to provide reasonable accommodation to an individual's physical or mental disabilities unless the agency can prove that the requested accommodation will create an undue hardship.  In this regard the Act incorporates the protections afforded under the Americans with Disabilities Act, as amended, which includes more recent and more detailed requirements.  Accommodation may involve the removal of physical barriers.  It may also include job restructuring and part-time or modified work schedules.  Thus, a flexible work schedule may qualify as a reasonable accommodation.

Both laws expressly prohibit employers from taking retaliatory actions against employees who oppose acts or practices which are made unlawful, for making charges and/or for participating in related investigations or proceedings.  It is also unlawful to coer…
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OSHA Protects Workers Who Object to Unsafe Working Conditions

Section 11(c) of the Occupational Safety and Health Act protects employees from reprisals for exercising their rights under the Act, including their right to complain about unsafe or unhealthy working conditions.
It provides in general that no person shall discharge or in any manner discriminate against any employee because the employee has: (a) Filed any complaint under or related to the Act; (b) Instituted or caused to be instituted any proceeding under or related to the Act; (c) Testified or is about to testify in any proceeding under the Act or related to the Act; or (d) Exercised on his own behalf or on behalf of others any right afforded by the Act.
An employee who believes that he has been discriminated against in violation of section 11(c) of the Act may, within 30 days after such violation occurs, lodge a complaint with the Secretary of Labor alleging such violation. The Secretary shall then cause appropriate investigation to be made. If, as a result of such investigation, the …

Circumstantial Evidence of Age and Race Discrimination

The U.S. Court of Appeals for the Eleventh Circuit vacated a district court’s order granting summary judgment to the employer in a case alleging age and race discrimination, Kilgore v. Trussville Development, LLC dab Hilton Garden, Inc., 2016 LEXIS 5464; 646 Fed. Apps. 765 (11th Cir. 2016).  The text of the decision can be found at

Ms. Kilgore presented circumstantial evidence which supported an inference that the employer’s claim that she was fired for being rude to guests was a pretext.  She presented evidence that she was replaced by two newly hired employees who were younger and African-American - Ms. Kilgore was a Caucasian woman in her sixties.  In addition, her superiors had made derogatory statements about her age (that she was “a stubborn old woman” and “too old”) and also about her race (that she was “the wrong color.”  Such comments are circumstantial evidence of discrimi…

Social Security Administration Awards Disability Benefits Based On Claimant's Fibromyalgia

On January 11, 2016, Administrative Law Judge Richard J. Ortiz-Valero entered a decision awarding disability insurance benefits and finding that due to her fibromyalgia the claimant was disabled under sections 216(i) and 223(d) of the Social Security Act.  The decision is significant in that fibromyalgia is not a "listed" impairment under the Social Security Administration's regulations.

These regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1, list many of the most readily diagnosed medical conditions and their symptoms which can reach a severity which is considered disabling.  In the usual case, in order to award benefits the Social Security Administration must determine that the claimant's impairment is of a severity to meet or medically equal the criteria of a "listed" impairment.

This claimant's condition had been diagnosed by several physicians as fibromyalgia ("FM").  FM affects the muscles and soft tissues.  Symptoms include chroni…

Unemployment Appeals Referee Awards Benefits to Employee Allegedly Fired for Misconduct

Under Florida law an employee who is discharged will qualify for unemployment benefits unless the discharge was because of the employee's "willful misconduct."  The definition of misconduct was substantially broadened by the Florida legislature in 2014, see §443.036(29), Florida Statutes.  Nonetheless the burden remains on the employer to show it fired the employee because of a "deliberate violation or disregard of the reasonable standards of behavior which the employer expects." In a recent the claimant had a panic attack at work.  She testified that she temporarily blacked out and could not recall her actions.  Co-workers later told her about her erratic behavior during the panic attack, for which the employer sent her home and, two weeks later, fired the claimant.
The Florida Reemployment Assistance Program initially found that the claimant was disqualified from receiving unemployment compensation because of her misconduct.  She appealed this determination. …

Indirect Proof of Discrimination

Title VII cases often are resolved without a trial.  Whether the District Court properly entered summary judgment for the employer is the subject of many Eleventh Circuit appeals.  A significant decision, Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011) held that a triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents "a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decision maker."  And it is well-settled that if a plaintiff presents a prima facie case together with evidence tending to discredit the employer's proffered reasons for the alleged discriminatory action the trier of fact may reasonably conclude that the employer intentionally discriminated.  See Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) in which the U.S. Supreme Court so held, stating specifically that no additional evidence of discrimination is needed to create a…

Private Employer May Refuse to Hire Because Applicant Sought Bankruptcy Relief

The U.S. Court of Appeals for the Eleventh Circuit upheld a trial court’s judgment against a prospective employee who claimed he was not hired because he had previously filed for bankruptcy. Eric Myers v. Toojay’s Management Corporation (Case No. 10-10774, May 17, 2011).  The employee appealed from a decision of the  U.S. District Court for the Middle District of Florida which held that Toojay’s did not violate a section of the Bankruptcy Code which prohibits employers from taking certain actions against people who are or have been in bankruptcy.

The first subsection of the provision, 11 U.S.C. §525(a) applies to government employers. It says that they may not “deny employment to, terminate the employment of, or discriminate with respect to employment against” a person on that ground. The second subsection, which applies to private employers, says they may not “terminate the employment of, or discriminate with respect to employment against” an individual on that ground, 11 U.S.C. § 52…