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Roger N. Meyer "...of a different mind "
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ADA, 504, AND ADVERSE PUBLIC EMPLOYER BEHAVIOR

Copyright 1998, 2005  Roger N. Meyer

Comment Below 2005

 

 

     [This article is a transcribed response to a listserv member's inquiry about some unjust and discriminatory action taken against a disabled co-worker at a public university.  She also feared similar action against herself.  This broad-scope response preceded later adverse US Supreme Court opinions that have essentially eviscerated state public employee causes of action under the ADA and against the state as their employer on 11th Amendment state immunity grounds.  However, many states have legislated their own mini-versions of the ADA, bypassing the limiting effects of recent US Supreme Court decisions, since states are free to offer their citizens greater protection than that afforded under the 14th Amendment Equal Protections Clause of the US Constitution.]

 

     Universities are no different than any other employer.  Because they receive so much federal tax money, they are actually held to a higher standard of compliance in employment law and ADA standards than are many private employers because of the public trust involved in tax-supported employment.

 

     Yes, her behavior can and should be reported to your campus ADA office.  Every public agency has either an official employee whose task it is to deal with such matters, or trains its supervisors to handle such matters when they come to their attention.  Not acting to stop such behavior is also acting to endorse or ignore it, both punishable in the same was as proactive behavior.

 

     The technician may have been "fired," but he is not yet terminated from employment or separated from the employer-employee relationship with the University.  As long as the technician remains employed, on whatever basis, he is protected from harassment and discrimination, even if he doesn't have anything more "official" than a hangnail.  The general law of wrongful discharge applies to him as it does to anyone else.  Even if he was on a probationary full-time status, progressive discipline must be applied in all such cases.  Public employment is NOT employment at will, a concept many unethical private market employers use when discharging employees, whether on a probationary status or otherwise.

 

     As long as he is employed in any capacity, if he thinks he has a disability, he can announce it to either the supervisor or to University Office of Human Resources.  That starts the clock ticking immediately, puts the supervisor on notice that her entire behavior towards him is being considered, if not for an ADA complaint, at least a wrongful termination complaint where he has substantial right to a review of his termination by the human resources office.  No employer will tolerate a supervisor's blatant behavior that blindsides employees into making either an ADA or wrongful termination complaint.  It is too expensive for the University, and if push comes to shove, even though he accepts a settlement, she may be suspended or removed because of her documented malevolence as a supervisor.  As I said, the university cannot afford to keep such loose cannons rolling around on its decks, even if, once mounted, they do shoot straight.

 

     She may be decisive, she may be direct, and to employees she "likes", she could be downright empathetic.  But these are not the litmus tests of a good supervisor.  A good supervisor maintains a level playing for everyone under her watch, and like a good doctor, is expected to "do no harm."  This means playing no favorites, and certainly means no "singling out" of employees for special attention or discipline because she gets a wild hair growing inward on her scalp.  This is the part of her equation with just too many missing values, and her formula for management is a very expensive one.  It is costly to the morale of employees in her unit, and stunts her growth as a people -- not just a project -- manager.

 

     For purposes of putting the ADA into effect, he does NOT need a formal diagnosis if he is otherwise aware of conditions which affect his work performance and informs the employer of these limitations.  For example, if he were a very short person, but the supervisor demands that he works stock on shelving unaided by ladders or other reasonable accommodations, or is assigned other work which is either dangerous to perform because of his stature, or which causes a health problem or injury to occur, it is enough that the employer has been put on "constructive notice" of a condition that limits certain kinds of performance.  If anything happens to the employee as a consequence of inappropriate work assignment or conditions of employment directed or supervised by management, the employer is fully liable for the damages.  This is especially the case if the employer is found to have shown willful and/or deliberate indifference to a dangerous or risky condition of employment, whether for this employee or all employees.

 

     If he is aware of learning or attention problems, distractibility, executive kinds of dysfunctional  thinking or behavior, that is enough.  He can inform her and the hiring authority (the University) of these conditions right now.  He should, of course, obtain medical confirmation of these limitations, which does not necessarily mean he must receive a diagnosis for all of them.  But for the most job-affecting ones, absolutely yes.  If he is insured by the University's medical plan, he may have the option of COBRA coverage once he is put on part time, or even whence terminated, to secure such a diagnosis under covered medical services in his continuation of group coverage or under the individual options of coverage available to him under COBRA.

 

     He does NOT have to go to any particular physician, especially if on a list of preferred providers, if there is no one competent within that system to diagnose his condition.  He can request a referral out of system for such medical diagnosis, and such diagnostic referrals must be allowed by the insurance provider.  If it were any other way, the insurance carrier could pad its list of providers with nincompoops and incompetents, thus effectively failing to provide covered care to all of its insureds.  This is known as "bad faith" in the insurance industry, and insurance carriers can lose their privilege to conduct  business in the state if they demonstrate a pattern and practice this kind.

 

     He should get medical information now to substantiate his claim of disability if it is challenged, and it may be by your jerk of a supervisor.  Once his condition is medically documented, the university proceeds with any further discipline at its peril.  If there is a discrimination claim that is found to have merit, there may be a settlement rather than a full-scale public trial.  Such settlements often take a long time, but they are usually of sufficient size that he will have a comfortable life for quite a while.  If there is a trial and the employer is found guilty, the punitive damages attached to such awards are the ones that deep pocket institutions like the University have to take special care to avoid, because such suits really nick the University budget, for now, and possibly for the future as well.

 

     The refusal of the supervisor to provide him with any kind of general letter of recommendation may also provide grounds for a civil suit.  By refusing what is considered not only a business courtesy, but a necessity towards securing future employment, she is causing real damage to him in terms of loss of future earnings and possible destruction of his career.  This is big time damage territory, and is generally collectable from the git-go.  If nothing else, such behavior will go into her personnel jacket, and becomes an official part of her employment record to be considered when promotions and other goodies are handed out.  Her conditioning any letter of recommendation on his not making a claim against her or the employer now or in the future is patently illegal.  No supervisor is allowed to hold an employee or former employee hostage to his/her desire to see that person switch careers or jobs as a condition of referral or recommendation for future employment.  This principle has been consistently upheld by case law.

 

     Finally, were I you, I would declare your disability to her after you have first disclosed it to the employer's HRD disability specialist, and only if the disability specialist thinks that's a good idea.  Otherwise, if there are reasonable accommodations to be arranged, have that HRD person assist you with making them..  Do this not as a challenge, but as a means of protecting yourself.  Providing you disclose properly, your action will also serve as a warning to your job supervisor.  If you are aware of what she does to others, as well as to yourself, she knows you are someone not to fool with.  However, there are risks inherent to even doing this.  Unless you can prove discrimination or disparate treatment, a bad supervisor could make your life there increasingly miserable.  That's the nature of the thing if she is already predisposed to being nasty.  This time, however, she may not be able to "get away with it" as she has in the past.

 

     As for your general dissatisfaction with the work you are now doing...If you think your compensation is minimal for the work you are doing, how does a fat  legal settlement in an ADA case sound?  Well, it could sound either good or bad, depending upon what you have in mind for your own future.  You should be prepared for some delay, sometimes a long delay, and the prospect that if you win a settlement, you may not be employed there as a condition of the settlement's having been paid by the employer.

 

     If all you want to do is only one kind of work, and be employed by only this type of employer, following a settlement you may "unemployable" in your current field, but by your own words you both love and hate the work you do.  So what if you have to leave that end of the field, perhaps for something you really can throw your heart into?  Is that so bad?

 

     Yup, despite your protestations, you are becoming a stronger self advocate daily.  You have your ups and downs as we all have, but you seem clear on your sense of morality, fairness, and a justifiable sense of outrage as you see others raked over.

 

     Don't, however, let your heightened sense of justice take complete control over common sense and your need to plan one step further than any protective actions you might want to take.  Protecting your flank is one thing.  Looking out for your future is another, and planning for it -- that's also the place to put your self-advocacy skills to work.

 

 

Copyright Issues

 

This article is copyright, all rights reserved by the author, Roger N. Meyer.  It may be reproduced in single copy once for personal use, and in no more than ten copies total for educational purposes.  Fair Use is authorized for all purposes and under conditions established by US Statute and the International Copyright Convention, to which the United States is a signatory nation.  No person shall publish, distribute, copy, or by other means make this material available to others for purposes of personal gain or professional self-aggrandizement.  Individuals wishing permission to exercise other than fair use or limited distribution as outlined above must contact the author, in writing, and receive explicit written permission from the author prior to engaging in further use of this material.

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