Is At-Will An End Run Around the ADA?
Brian T. Johnson
The Americans with Disabilities Act (ADA) was put in place back in July of 1990 by President George H.W. Bush in an attempt to protect people with disabilities from employment discrimination. However, are employees who should have certain protection under laws such as the ADA still vulnerable from discrimination by employers?
Pennsylvania, for example is an At-Will employment state, meaning an employee can be dismissed from a job for any reason that would not be considered illegal. At-Will also allows an employer to change the terms of employment (without notice) such as: the alteration of wages, termination of benefits, and the reduction of paid time off. It is this type of employment status that could be considered to be a loophole in the ADA protection, take into consideration the case below.
I spoke with a 39-year-old disabled veteran, who did not wish to be identified (who we will call Bob), who feels like he has reason to believe that he has been a victim of this loophole in the At-Will employment law,
“I was working for a local company during which time I had some medical issues that are a result of my service-connected disabilities, a fact that I disclosed to my employer during my interview. I would have medical appointments that I needed to go up to the VA hospital in Lebanon for on occasion, think maybe four times in my initial 90 day probation period. This was something that I disclosed to the employer at time of interview and hire and they said they would accommodate. Three days short of my 90 day probationary period being up I was summoned to the HR department and was told that the position I was hired for was being consolidated and they could not keep me on staff...
This was also strangely enough right after a big yearly event they have in which they need more people to help out."
Bob continued, “I bumped into a former co-worker a few months later and was surprised to find out that not only was the position not consolidated but they had it filled within a month of my dismissal. The co-worker had told me that she felt that I had been given a raw deal when she overheard two supervisors talking about the reason they let me go was of my medical appointments. I had thought about a wrongful termination suit but looking into At-Will law and seeing that the burden of proof falls upon me to prove, made me feel like it would turn into a my word against theirs situation."
Bob would go on to talk to me about being “laid off “ or have his hours cut to the point where he would have to find another job over the duration of 2018, and his encounter with his former co-worker made him really start to think about his issues with employment.
More importantly than that, is the fact that Bob is not the only person who has a legitimate claim to falling victim to this circumstance. What is worse is that of others I polled at the VA hospital, a staggering seventy-two percent felt like they have lost a job due to similar circumstances. Most of those I spoke with said that they were “off the record” and mentioned the amount of time they missed working due to medical appointments.
Over half were asked at some point by their employers to start bringing proof that they were in fact going to medical appointments.
Some would go on to say that they feel that in order to expedite and strengthen their dismissal certain standards were more strictly enforced on them than others after providing proof of medical appointments. This in order to possibly be able write them up and create a “paper trail” of disciplinary action.
What seems worse is that others I spoke with said that that paper trail had been used to help deny them unemployment benefits after dismissal from employment.
A lot has been said about the veteran community and this potential issue. However, they are only a small minority of a bigger majority. Disabled veterans and other people who have disabilities are all at risk under the At-Will status. The big question that needs to be asked is simply this; if this is happening so often, why is there little to nothing being said or done about this issue?
After speaking to Bob and the other veterans at Lebanon a handful of employment attorneys were contacted, and not one of them who responded to inquiries were able to say if they knew of any precedent to investigate this issue, let alone try and solve the problem. All seemed to agree on the fact that the burden is on the individual to try and fight the issue. With this being the case how can anyone be expected to make any progress in a fight when experts such as attorneys have no way of solving the problem?
This begs the question of what is the point of having laws like ADA and other protective measures if an employer can just claim that an employee was dismissed for a different reason that is completely bogus and hard for a dismissed employee to prove?
This opens the door for all kinds of discriminatory dismissals in At-Will states, dismissals based on color, creed, religion, sexual orientation, and beyond. At what point should At-Will be revisited and adjusted to help keep discriminatory dismissals?
In Bob’s case he is left with a fear of this possibly happening again, “I am so paranoid now, I am at the point where I feel like I need to push things of and risk conditions getting worse or risk losing another job because I chose to get care.”
keep community media open in your community.