The Applicable Law is the American Disability Act - Case Study Example

The Applicable Law is the American Disability Act In the case of Miss Clark, the applicable law is the American Disability Act (ADA). Under the law, it “prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities” (US Department of Labor). Based on the given facts, Miss Clark is blind and as a result of her disability of loss of sight, she was not promoted to the position of Senior Vice-President because her employer doubts her capability to perform competently due to her physical impairment, despite of her loyalty to the company she has served for several years. The company/employer clearly violated the provisions of the law by keeping her career advancement of being promoted as a Senior Vice-President by assuming that she cannot fulfill responsibilities due to her vision impairment. It should be noted the employer has known from the start about her physical restriction, but nevertheless, kept her as their employee. In her case, her state of being a blind Vice-President of the company did not in any way affect the quality of her work, her professionalism and her competency, as evidenced by the good working relationship she shares with the rest of the employees. “The general policy implemented by ADA and the rehabilitation Act is that as long as the employee or applicant is qualified for the position, with or without reasonable accommodation, the acts prohibit any adverse employment decision that is made solely on the basis of disability. An employee may be able to claim discrimination on the basis of her or his disability if such employee can prove the following: 1. The he or she is disabled; 2. That he or she is otherwise qualified for the position; 3. If an accommodation is required, that the accommodation is unreasonable; and 4. That he or she suffered an adverse employment decision, such as termination or demotion” (Moran 530). Based on the foregoing facts, the case of Miss Clark complied with all the requisites to justify her claim against her employer. Employers must bear in mind that both the state laws and the federal laws protect employees from any form of discrimination which shall entitle them to file claims for damages, such as disability discrimination. Hence, Miss Clark can file a claim against her employer based on this ground when the company refused to promote her as Senior Vice-President, despite her competency to manage the position for the sole reason that she was blind. According to John Moran, this is in accordance with the principle of “disparate treatment enunciated in the case of Raytheon Vs. Hernandez (540 U.S. 44 (2003) 298 F.3d 1030), where the Supreme Court held that in addition that disparate impact claims are also available to workers based on facially neutral policies that impact qualified individuals with disabilities differently than workers without disabilities” (531). In the said case, the Court stated further, while available, a “disparate impact claim would be analyzed according to the legal standards applied to an impact case rather than a treatment case. Under disparate impact, a facially neutral employment practice may be deemed illegally discriminatory without evidence of the employer’s subjective intent to discriminate that is required in a ‘disparate-treatment’ case (Moran 531).” Another issue is that she is being discriminated because of her age. At 53, she was forced to accept a retirement package when she entertained a dialogue with a Union which was about to be formed. As the Vice-President of the company, she must be able to foster corporation within the company and work towards the improvement of the employees’ welfare. Her act of granting the request of the labor union to explain the union and the related benefits due to the employees is not unlawful. In fact, she has maintained good cordial relationship with her colleagues that she gained the respect of all the people in the company and they have worked hard to initiate her requests. Her employer cannot penalize her based solely on the fact that she entertained meetings with the budding union. Employers must keep in mind that an employee has the right of to form or join a union. The National Labor Relations Act or NLRA (29 U.S.C. Section151) provides the rules and regulations in the formation of labor unions among employees. “It establishes the right of most workers to organize into unions and through union representatives, to negotiate an employment contract covering all members of the union” (Steingold 254). Therefore, Miss Clark did not violate any company policy when she agreed to set a meeting with the soon-to-be union members. Miss Clark was correct when she explained to the company that she cannot discourage, use force and intimidation to dissuade the employees to form or join the union. As a matter of right under the NLRA, employees or workers can freely form and join unions and must not be prevented to do as they please. Workers who choose to form or join a union enjoy a bargaining clout, than if they dealt with their employer on their own. “They feel that the union can get them a better pay, benefits and working conditions through structured grievance procedures as they are being represented by the union to get a fairer shake in resolving workplace disputes” (Steingold 254). “The Employee Retirement Income Security Act of 1974, or ERISA, protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire” (U.S. Department of Labor). Under ERISA, Miss Clark has a legal standing to sue her employer when she was illegally terminated for entertaining visits of soon-to-be union members in the company premises. And as a result, she was forced to accept a diminished retirement benefit package offered by the company, which she refused to receive for failure to comply with the provisions of the law. As a “participant who is entitled to file a claim against her former employer, she has become eligible to receive the benefit from the employee benefit plan of the organization as a matter of right” (Jorden, Pflepsen, and Goldberg 30) because she has served the company for several years, considering that she is now 53 years of age. The Supreme Court in the case of Firestone Tire and Rubber Company, 489 U.S. 101 (1989) interpreted this provision covering either employees in or reasonably expected to be in, currently covered employment or former employees who have a reasonable expectation of returning to covered employment or who have a colorable claim to a vested benefit” (Jorden, Pflepsen, and Goldberg 31). Therefore, Miss Clark can file a claim based on her rights and benefits established under ERISA which is to be filed in a federal or state court, where in the latter holds “concurrent jurisdiction with federal courts” (Jorden, Pflepsen, and Goldberg 57). Miss Clark was also discriminated based on her age. According to David Shultz, “Age discrimination means denying an individual one or more rights guaranteed by the U.S. Constitution and state constitutions based solely on the reason of age of such person” (11). This is covered under Age Discrimination in Employment Act 1967 (ADEA) prohibits discrimination against age for employees who are 40 years of age or older, which usually occurs when a pension will vest or a retirement of an employee nears. Under the law, there are “four steps to qualify under ADEA: 1. The employee must be a member of the protected class; 2. The employee is qualified for the position; 3. The employee was terminated and refused employment; and 4. An adverse decision made in regard to age, or was replaced by a younger worker”. Therefore, in view of the pronouncements made by the Supreme Court, this makes Miss Clark qualified to claim under ADEA for complying with the requisites provided by law. In another case involving analogous circumstances entitled Oubre Vs. Entergy Operations, Inc. (522 U.S. 422, 1988). The Supreme Court rules that: “a release of liability cannot bar an employee from a discrimination claim under the Older Worker Benefits Package Act (OWPBA) when the procedures under the law are not strictly followed in cases when the employer gives an early retirement plan to its employees”. The Court held that the employee is given two weeks to review the program and should seek the assistance of a counsel in order to understand the provisions of the program and is given another seven (7) days to decide on whether or not to keep the plan. The “Older Worker Benefits Package Act” (OWPBA) is an amendment of ADEA, and supplemented with the provisions of the Civil Rights Act of 1991. The amendment of the Civil Rights Act of 1991 sets a limit on the amounts of compensatory and punitive damages that can be awarded to employee victims who suffered abuses from their employers. “The basis of the limitation shall be based on the number of people employed in a company: 1. The employers with 15-100 employees shall grant $50,000 to the victim; 2. For employers with 101-200 employees, the amount is fixed at $100,000; 3. For employers with 201-500 employees, the amount is fixed at $200,000; and 4. For employers with more than 500 employees, the amount is fixed at $300,000” (Moran 88). Hence, under the federal courts, Miss Clark can rightfully sue on the basis of violations under ADA, ERISA, ADEA, OWPBA and the Civil Rights for the malicious and intentional acts of her employer committed against her. Works Cited: Employee Retirement Insurance Security Act of 1974 (ERISA) Firestone Tire and Rubber Company, 489 U.S. 101 (1989) Jorden, James F., Waldemar J. Pflepsen and Stephen H. Goldberg. Handbook on ERISA Litigation. USA: Aspen Publishers Online, 2006. Print. Moran, John Jude. Employment Law: New Challenges in the Business Environment, Fourth Edition. USA: Prentice Hall, 2008. Print. National Labor Relations Act or NLRA (29 U.S.C. Section 151) Older Worker Benefits Package Act (OWPBA) Oubre Vs. Entergy Operations, Inc. (522 U.S. 422, 1988) Raytheon Vs Hernandez, (02-749) 540 U.S. 44 (2003) 298 F.3d 1030 Shultz, David. Encyclopedia of the Supreme Court. USA, Infobase Publishing, 2005. Print. Steingold, Fred S. The Employer’s Legal Handbook. Ninth Edition. USA: Delta Printing Solutions, Inc., 2009. Print. USA Department of Labor, Retrieved on April 28, 2011, from, http://www.dol.gov/dol/topic/disability/ada.htm http://www.dol.gov/ebsa/faqs/faq_compliance_pension.html Read More