More MS news articles for Nov 2001

Employers Increasingly Face Disability-Based Bias Cases

http://www.nytimes.com/2001/11/20/business/20BIAS.html

November 20, 2001
By REED ABELSON

For five years, Philip Lanni, partly disabled by dyslexia and other neurological impairments, worked as a radio dispatcher for the New Jersey Department of Environmental Protection. And from his early days, the rangers Mr. Lanni sent to their jobs made him a target of pranks and ridicule, according to a lawsuit he won against the department in 1999.

The rangers highlighted his spelling mistakes in his log book, he said, and tried to blame him for errors that were not his fault. "We become the scapegoat," he said.

Eventually, the harassment began to escalate. "It jumped from verbal to physical," he said. One ranger brandished a gun at him, and another sprayed his face with Mace.

When he complained, the suit contended, Mr. Lanni was told he worked in a "locker room atmosphere" and should not be "so sensitive."

The department declined to comment.

Mr. Lanni is in the vanguard of an issue that has emerged with full force only recently: the harassment of disabled employees at work. Federal courts and juries are starting to treat it just as seriously as traditional cases of sexual or racial harassment.

But many companies are still slow to respond to the challenge, according to lawyers involved with the issue. "There has been a great deal more time spent educating people on harassment on the basis of sex and race," said Margaret Hart Edwards, a lawyer with Littler Mendelson in San Francisco who advises corporations.

Employers, said Claudia Center, a lawyer for the Legal Aid Society Employment Law Center in San Francisco, "have not even gotten it on the radar screen yet."

According to the complaints some 2,400 are now filed annually with the Equal Employment Opportunity Commission many disabled employees say they are constantly berated by co- workers and managers who accuse them of faking their injuries. Others say their colleagues gang up on them as they would in the schoolyard. Still others say they are shunned by managers, who try to force them to quit.

Disability-based harassment is now the fourth most frequent claim behind racial harassment, sexual harassment, and claims for harassment based on national origin, according to preliminary figures from the E.E.O.C. for the year ended Sept. 30.

But lawsuits under the 1990 Americans With Disabilities Act have proved extremely difficult to win, according to legal experts. "The standard of proof is made so high that almost no one can meet it," said Ruth Colker, a law professor at Ohio State University. Employers prevailed in more than 93 percent of cases reaching the trial court level from 1992 through mid-1998 and 84 percent of the time on appeal, according to her research.

Moreover, many disabled employees facing harassment do not sue at all for fear of losing their jobs. They may depend on their employer for health insurance or worry about their ability to find another position. "Folks who are disabled have enormous external pressures," said Jill L. Craft, a plaintiff's lawyer in Baton Rouge, La.

While that makes it harder to show a repeated pattern of discrimination and harassment, several highly publicized lawsuits have recently overcome these hurdles. Mr. Lanni, who was represented by the law firm of Wong Fleming, won a six-figure jury award for disability-based harassment. Two cases that were appealed in federal courts earlier this year were affirmed.

Those decisions are the first instances since the disabilities law formally went into effect in 1992 that appellate courts have explicitly recognized this kind of harassment as a form of discrimination, just as other harassment is viewed under the 1964 civil rights act.

As disabled employees gain greater access to the ordinary workplace, they face many of the same obstacles experienced by other members of a minority.

"Kids with disabilities are harassed all the time," said Andrew J. Imparato, the president of the American Association of People With Disabilities in Washington. "Why wouldn't it go on in the workplace?"

Despite recent progress, only 29 percent of people who are disabled and are of working age are employed, compared with 79 percent of those who are not disabled, according to a recent survey.

"There needs to be more follow- up," said Annela Soran, a senior recruiter for Just One Break, a New York nonprofit organization that helps people with disabilities find employment. "A lot of people land jobs, but they can't keep them."

Many consultants recommend that companies broaden their diversity efforts to include people with disabilities explicitly. J. P. Morgan Chase (news/quote), for example, has an employee network for people with disabilities that meets monthly. It alerts the company to issues it may not have considered, like the difficulty of navigating carpet with a wheelchair.

"If you're speaking about diversity, this is yet another culture," said Joan Imperiale, a company vice president.

Harassment of people with disabilities takes different forms, but it can sometimes be a matter of sheer cruelty. The equal employment commission recently brought a lawsuit against the Olive Garden, a chain of Italian restaurants owned by Darden Restaurants (news/quote), on behalf of a former employee, Jody Terrio, who is mentally retarded.

"Examples of the physical abuse," the commission claimed in its suit, "include putting Terrio in headlocks and other physically painful wrestling positions, pulling down Terrio's pants in front of co-workers, and hiding or riding around on Terrio's bicycle because they knew it would upset Terrio."

Olive Garden said it could not discuss the case, but defended its record in employing people with disabilities and reaching out to disabled customers. "We're looking forward to getting all the facts on the table," said Steve Coe, a company spokesman.

Sometimes the discovery of a condition can ignite an outbreak of hostility. Sandra Flowers, for example, worked as a medical assistant at a doctors' office in Baton Rouge for six years. But as soon as her office manager discovered that Ms. Flowers was infected with H.I.V., "her whole attitude and demeanor changed," Ms. Flowers said.

Although the two were once friends, the office manager told colleagues not to touch the food Ms. Flowers brought to an office gathering. She repeatedly cleaned Ms. Flower's telephone with rubbing alcohol. In a single week, according to the lawsuit Ms. Flowers brought against Southern Regional Physician Services, she was forced to take four random drug tests.

After Ms. Flowers was accused of mistreating patients and was the subject of written complaints about various infractions, she was fired.

In 1998, a jury awarded Ms. Flowers $350,000 for disability-based harassment, and the case was appealed. The federal appeals court in New Orleans affirmed the decision, although it ruled that Ms. Flowers should receive minimal damages because the harassment did not cause substantial enough injury. Her lawyer, Ms. Craft, is currently asking the court to award her lawyer's fees, which she says she will give to Ms. Flowers.

Our Lady of the Lake Regional Medical Center, which owned Southern Regional, said Ms. Craft's termination was unrelated to her H.I.V. status. The hospital would not comment further on the case but said it took allegations of harassment seriously.

Many of the people bringing complaints have disabilities that carry considerable stigma, like mental illness. Others confront questions about whether they are truly disabled. About 40 percent of the complaints involve mental disabilities or back injuries, according to federal statistics.

In some cases, supervisors are frustrated at having employees who are restricted from performing all aspects of their jobs. Robert J. Fox, for example, injured his back, limiting him to light-duty work at a General Motors (news/quote) plant in Martinsburg, W.Va. A supervisor there routinely referred to disabled employees as "911 hospital people," according to Mr. Fox's lawsuit. He said he was frequently asked to do work that could further injure his back. When he refused, one manager asked him how he was supposed to take someone "with these restrictions," according to the suit.

A jury awarded Mr. Fox $200,000 in damages; an appeals court affirmed it this year. G.M. has paid Mr. Fox, who still works for the company, according to a spokesman. The company says it has various initiatives to help disabled employees feel more comfortable.

Someone who has a psychiatric disability can also become vulnerable to the hostilities of co-workers. Eric R. Stewart worked for Bally Total Fitness when he suffered a breakdown and was diagnosed with bipolar illness. When Mr. Stewart returned to work, his colleagues called him "psycho," "wild man" and "freak," according to a lawsuit he filed against Bally in 1999. He was eventually fired.

A federal court in Philadelphia ruled last year that the case could proceed to trial. While Bally said it could not comment on the litigation, the company said it did not tolerate any kind of harassment.

Advocates say employers' efforts to make the workplace more hospitable are more important than their attempts not to run afoul of the disabilities act. "The spirit of the law," said Matthew Sapolin, co-executive director of the Queens Independent Living Center, "is much better than the letter of the law."
 

Copyright 2001 The New York Times Company