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EEOC Sues GAF Materials Corporation for Disability Discrimination

On September 18, 2014, the Equal Employment Opportunity Commission (EEOC) filed a complaint in the case Equal Employment Opportunity Commission v. GAF Materials Corporation (GAF). GAF is accused of discriminating against employee Irvin Carter by denying him the opportunity to retain his job by “bumping” a less-senior employee and taking his or her job, as allowed under the company’s collective bargaining agreement, during a layoff. The EEOC alleges that GAF denied Carter this opportunity based on incorrect and extremely outdated information about his ability to do a different job given his well-documented disability.

Mr. Carter had been injured while working at GAF in 2003, resulting in the amputation of his right hand below the wrist. The loss of his hand substantially limited his ability to perform manual tasks at first; most relevantly, he could only lift 5 pounds with his prosthesis and 11 pounds with both arms. These limitations rendered him unable to perform his old job, but since he had seniority over many other workers he was transferred to a different job that he could perform.

Meanwhile, he continued to go through physical rehabilitation and therapy, and he eventually became able to lift 90 pounds, which is the limit for his prosthesis. Meanwhile, the company went through a succession of layoffs. During the first layoff, in 2012, Carter bumped a less-senior worker to obtain a forklift driver position. Then, during a second layoff later in 2012, Carter was himself bumped from this position by a more senior co-worker. He still had seniority over many other employees, so he sought to bump a different employee and claim one of the many other positions he was qualified to perform. However, the company then decided that he was not physically qualified for any other available positions because of physical limitations and effectively terminated his employment.

If the Commission’s allegations are true, this is a fairly straightforward case of discrimination based on perceived disability, in violation of Title III of the ADA, since the company’s reason for terminating Carter was their belief that he was unable to perform a different job. One problem, though: the basis of the company’s belief was his nine year old functional capacity summary, completed just after his accident. The company was fully aware that Carter’s abilities had changed dramatically since that summary was written; in particular, his forklift driver position had a fifty pound lifting requirement and this had never presented a problem. Robert Dawkins, regional attorney for the EEOC’s local Atlanta District Office, sums up the lesson: Companies should not rely on severely outdated information to take adverse actions against employees with disabilities…Instead, the employer must take into account the actual job duties and the employee’s present ability to perform the job.”

In short, for a disability to be a legitimate reason to deny someone a position, it must be a current disability that really does render him or her unable to perform the duties of the job.

If you are an employee and you believe your rights under the Americans with Disabilities Act have been violated, please contact The Harman Firm, LLP.

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