Fired Because of Cancer

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By: Matthew DietzGregorio Reyes

Gregorio Reyes was hired in October 2007, as the Regional Sales Manager for the Caribbean for IDEX in the Fluid and Metering Segment. IDEX is a three billion dollar corporation that specializes in fluid and metering technologies, health and science technologies, dispensing equipment, and fire, safety and other diversified products.

Since he was hired, Gregorio’s role as Regional Manager was to manage the business through distribution for IDEX companies that were represented throughout the Caribbean region.Reyes with two guys

In November 2010, Gregorio was diagnosed with Stage III colon cancer, hospitalized, and underwent surgery. Immediately thereafter, Gregorio reported to his supervisor, Christopher Clarke, what had transpired and that it would be a lengthy recuperation process. Gregorio told Mr. Clark that he required chemotherapy starting in January, with a total of 12 bi-weekly sessions. The process, barring any complications, would take from 6-8 months.

At that time, IDEX appeared to be supportive. Prior to his leaving IDEX in January of 2011, Mr. Clarke advised John Boland, Mr. Clarke’s direct supervisor and Vice President that Gregorio Reyes was the person who was best suited to replace him based on Mr. Reyes’s experience and product knowledge; and Mr. Reyes had cancer. But Mr. Boland did not take Mr. Clarke’s recommendation and hired Raul Aguilar to replace Mr. Clark.

During this time, Gregorio did not stop working, and he loved his job and relationships that he built with his customers. He did not ask for family and medical leave time, and he did not ask for short term disability. During the chemotherapy, Gregorio had to be hospitalized due to complications with blood clots in his left leg. At this time, he advised his new supervisor, Raul Aguilar, that the chemotherapy would be pushed back an additional month and that he would not be able to travel in any form during his chemotherapy.

Gregorio continued to work. Mr. Aguilar spoke to Gregorio and asked him to work even while he was in the midst of chemotherapy treatments, and the exact nature and prognosis of Mr. Reyes was discussed with both Mr. Aguilar and John P. Boland, on several occasions. Gregorio was asked direct questions about his illness and the treatment. On several occasions Raul Aguilar asked about the names of the medications that were being used for his chemotherapy and the type of procedures being used. He also inquired about Gregorio’s blood cell count and the time it would take for a full recovery. Upon being asked again, Gregorio told Raul he should contact his doctor if he needed further clarification, or if he preferred, Gregorio could ask for a letter from her explaining his condition. On April 6, 2011, Gregorio received an email from John Boland asking “I’m curious on your cancer diagnosis – I suspect you have a non-small cell variety and are Stage III” . Gregorio was also asked whether his health would prohibit him from continuing to work in the future. Gregorio continued to work, even during critical stages of his condition, and aspired to grow IDEX even more.

After his regimen of Chemotherapy was completed, Gregorio began traveling again, and made several trips from August 2011 to November 2011.

Without notice or cause, Gregorio was discharged on December 8, 2011. When asked why, Gregorio was advised that it was not due to his performance at all, but instead, due to a restructuring of the region. As one of the top producers, Gregorio was shocked as it did not make sense why his position would be cut. Gregorio made it clear that he was interested in moving to keep his job, as most of his career involved relocating for jobs, and travelling for my job. Gregorio was ignored. Gregorio Reyes came to Matthew Dietz of Disability Independence Group to assist him in enforcing his rights as a person with a disability.

Gregorio Reyes filed a complaint with the EEOC, and the EEOC found cause that he was subject to discrimination. On July 27, 2015, on the day after the 25th Anniversary of the Americans with Disabilities Act, the Equal Employment Opportunities Commission filed suit on behalf of Gregorio Reyes. Robert Weisberg, regional attorney for EEOC’s Miami Office, stated, “A longtime employee who continues to successfully perform his or her job responsibilities should not be fired because he has been diagnosed with a medical condition such as cancer. The ADA prohibits such conduct, and EEOC takes seriously its responsibility to enforce the law.”

A Note from Matt

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fsu accessibility symbol

Back to School – This graphic is the symbol of accessibility at Florida State University. It reflects the importance of a free and equal education for all persons with disabilities, which is essential to ensure that there are persons with disabilities who are leaders in society, including, lawyers, doctors, teachers, politicians, and every single other profession. 

According to the UN Convention on the Rights of Persons with Disabilities, the right to education is a cornerstone of full societal inclusion. The convention (of which the United Sates has not adopted) requires nations to ensure an inclusive education system at all levels and lifelong learning directed to:

  1.  The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
  2. The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;
  3. Enabling persons with disabilities to participate effectively in a free society.

Without education and inclusion, there will be no effective enforcement of Disability Rights.

The 25th Anniversary of the ADA – Accessible Living

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By: Zachary Trautenberg

zach in a wheelchair

On July 26th the Americans with Disabilities Act will be turning 25 years old. The Americans with Disabilities Act is a law designed to make the United States accessible for persons with disabilities. Originally enacted in 1990 it has been updated over the 25 year period.

The Americans with Disabilities Act is a great tool that has literally and figuratively opened many doors for persons with disabilities, but it is not perfect by any means. The biggest challenge for persons with disabilities is the fact that our abilities and inabilities are extremely unique. Each and every persons has certain strengths and weaknesses. The best accommodation for one person may not be the best accommodation for another. For example, I have recently been looking at refrigerators and many are rated accessible by the standards set in the Americans with Disabilities Act, but these refrigerators are still not accessible for me.

My advice is always follow the regulations in the Americans with Disabilities Act if for no other reason than for not getting sued. Just be there to assist a client, friend, and or family member that has a disability. Do your best to assist them even if that means going above and beyond the Americans with Disabilities Act. For example, if the door to your store is legally considered accessible by the Americans with Disabilities Act, but you see someone in a wheelchair struggling offer to hold it for them.

I see the Americans with Disabilities Act as a set of legal guidelines for us to follow. I also do not believe that it should mean we ignore what is right in front of us. We have a moral duty to try and provide the best services for everyone regardless of our abilities or inabilities.

I believe that the Americans with Disabilities Act has done some amazing things for persons with disabilities, but I believe that it should be a living document ever evolving and expanding. I feel that the United States and the Americans with Disabilities Act is amazing, but we can continue to learn and make things better.

If you like this article and want to read more by Zachary Trautenberg, check out his blog Independent and Accessible Living at http://www.independentaccessibleliving.com.

Casey Martin – Disability Accommodations in Sports!

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Casey Martin in his golf cartThe ADA has had an overarching impact on all aspects of life, including competitive sports. Casey Martin, a professional golfer, highlighted the true impact of the ADA in the sports world in 2001 when he won his lawsuit against the PGA tour under the Americans with Disabilities Act. The PGA Tour, the main organizer of professional golf tours in the United States, required the golfers to walk between shots in the third round of competition. Martin, who has a circulatory condition which affects his right leg, was unable to adhere to this rule, and therefore requested a golf cart as an accommodation for all rounds of the game. Through the ADA’s stipulations of accessibility and inclusion, the Supreme Court ruled for Martin in a 7-2 decision. This court ruling demonstrated the importance of complying to the ADA by providing reasonable accommodations for disabled athletes while still playing a fair game.

IT’S THE 25TH ANNIVERSARY OF THE ADA

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By: Lester Langer

OVER THE LAST SEVERAL editions of our newsletter we have discussed mediation. But did you know mediation is available under the ADA Mediation Program? This is an informal process but you have to request it after you file your complaint. Since its inception the program has mediated more than 4000 complaints with 78% being resolved successfully.

Complaints under tile II (state and local government services) and title III (public accommodations) can be mediated. There is NO COST to either party and it is not necessary to have an attorney. However as we have discussed previously it would be in your best interest at least to consult with an attorney or retain one to navigate the law and the process.

Remember the process is confidential, efficient and voluntary.

You can terminate the mediation at any time during the process but once you sign off on the settlement agreement you will be bound by it as well as the other side.

Should you decide not to mediate you will not give up any of your legal rights to pursue an appropriate legal action to redress your issues.

For more information you can visit the ADA web site at:

http://www.ada.gov/mediate.htm

In the next newsletter we will begin discussing Arbitration. Should you have any questions please contact me through this newsletter and I will try to give you and our readers a full answer.

Lester Langer, Florida Supreme Court Certified Civil and Appellate Mediator

Kids Crusaders

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By: Julie Fioravanti

Nick wearing his ADA shirtWelcome to this month’s edition of Kids Crusaders as we celebrate the ADA, a law that went into effect 25 years ago on July 26, 1990. My son was born in April of 1991. While we knew from the day he was born we were going to be faced with challenges, we had no diagnosis and no idea what his limitations would be. It wasn’t until he was 4 years old that the ADA even remotely entered my mind. Nick was diagnosed at 10 months of age with Cerebral Palsy and the first few years were spent all consumed with therapies and early intervention programs.

My very first experience where I actually gave any thought or research into the ADA was at a local amusement park. We had taken Nick there for the day to enjoy some of the rides and the waterpark. We paid to park and I do remember that there were parking spots that were close to the entrance that were designated handicapped parking.

nick, julie, and julie's husband with their ada shirtsUpon entering the park, we went directly to the section of the park for younger kids. We scoped out all of the rides, being careful to take note of any ride that would accommodate Nick and one of us, as he was unable to sit unsupported. The very first ride was a kiddie roller coaster (imagine more like a few wavy hills instead of “roller coaster”). We stood in line waiting with the other families and Nick was giggling and happy. I walked to the front of the ride to talk to the girl that was operating the ride. I wanted to make sure that one of us would be able to ride with Nick to support him; she assured me that would not be a problem.

After a short wait it was finally time for Nick to ride. I assisted my husband in putting him in the back seat of the ride and my husband got in and sat next to him. It was at this point that a different ride operator approached my husband and told him he would have to get off the ride. I explained to him that I had asked the girl working there before him if it was ok and she had said that it was. He said she was wrong and my husband would have to get off the ride. This was all transpiring in front of the other families. One father approached me and offered to have his 10 year old daughter ride with Nick. I thanked him but declined. It was at that moment that the letters ADA entered my thoughts. Not knowing what the law was, I knew that there was a law that had been passed and my interpretation of that law was that my son should have equal access to these rides just like anyone else. While the discussion started with the ride operator saying that my husband had to get off the ride, it had quickly changed to him saying that my son also needed to get off of the ride. That is where I decided to stand my ground. This was in no way acceptable to me and I honestly didn’t care what anyone thought. I refused to let my husband get off the ride and the ride operator refused to operate the ride. For 15 minutes the ride was full of kids waiting and parents now standing by looking on, some in support of what I was saying and others being extremely rude and saying hurtful things (not worthy of getting credit in my article). Finally the ride operator called the park manager. I explained the situation and he asked if my husband and son would get off the ride so that the other kids could enjoy the ride and I said “No, not happening.” He said he wanted to talk about this someplace other than at the ride attraction. I stood my ground. No. He called park security. The ride was still not operating and some parents had taken their kids off the ride, no longer wanting to wait. Some waited, probably mildly entertained by my refusal to comply. Park security said they were “escorting us out of the park.” That was going to prove to be difficult since my husband was still seated in the ride with my son. I stood my ground. No. The police were called. Ahhh, my ground was standing was starting to shake a little. They asked us to get off the ride and to take the conversation into the office with the park manager. Being asked to take my son off the ride by the police changed up my confidence a bit, so we agreed to go with them to the office to discuss the situation together. Trying to maintain some sense of calm and not sound ignorant, I explained in front of the police that the park was “breaking a law” by denying my son access to this ride. When asked what law they were breaking I quickly began pulling on what little information I truly knew about the ADA. I was informed by the park manager that the park was in compliance with the ADA because they had handicapped parking spaces and handicapped stalls in each bathroom. My response to that, which I would love to share (however the editor may not approve of the language involved), was something that made a huge statement and also got us escorted out of the park by the police. The park refunded our money for the admission but refused to refund our parking fee since we had parked in a designated handicapped spot.

The ride home was about an hour long and I spent most of it crying because I was so angry at what had taken place and at my lack of knowledge about the law and how it applied to our son. I did contact local legal advocates that contacted the park and the park owner called me to apologize. The apology was followed by a…”but” statement at which point I just became even more frustrated. Long story short, the park which was privately owned at that time, through mediation with the advocacy center, expanded their “kiddie” section of the park the following year to include rides and attractions that would accommodate having children ride with their parents. The owner sent a letter to the house with information regarding the changes that were made along with free passes to return to the park along with a cheap, “crunchy” stuffed animal for Nick that you would win at an arcade booth. Still feeling unhappy with our entire experience, I returned the package to the owner and we have not returned to the park with Nick. The theme park was subsequently bought out a few years later by a large well known company and has expanded and is operating to this day. We went to the park once without Nick to see what, if any changes had been made since the purchase of the park. Adequate changes had been made and accessibility is no longer an issue.

For us, that was 20 years ago. The changes that I have seen over the past 20 years have been huge. While I do not have a degree in law, our adventures with Nick over the years and accessibility issues have broadened my awareness and my knowledge base. I have a better understanding of the law and the impact that it has had for people living with a disability. Ten years ago one of our adventures with Nick led us to Matthew Dietz, which led to yet another adventure (but I will let Matthew share that one!)

Disability rights ARE civil rights. Stand your ground, even if it feels like it is shaking. I have always stood mine and will continue to stand mine, knowing that when I take a stand, I take it not only for my son but for others as well.

“A strong person isn’t the one who doesn’t cry. A strong person is the one who sheds tears for a moment, picks up her sword, and fights again.”

Thanks for continuing to follow me on my journey. Hopefully there will be a day when a sword will not be needed. There has been a lot of progress made in the past 25 years. Happy Anniversary ADA….

Until next month…live, laugh, love and know that you are never alone.

Julie     (Julie.kidscrusader@gmail.com)

“The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, by President George H.W. Bush. The ADA is one of America’s most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life — to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin – and Section 504 of the Rehabilitation Act of 1973 — the ADA is an “equal opportunity” law for people with disabilities.” (www.ada.gov)

Rotary Club of Harris County– Meeting their community’s needs

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By Sharon Langer 

The Rotary Club of Harris County Georgia has a 17 year history of service to their community. I was privileged to join them this month at a summer breakfast meeting and hear about a unique project they started for persons with disabilities. I am hoping that by writing about this project other Rotary groups might be encouraged to start their own project. In partnership with a local faith based non-profit called FOCUS, residents who need ramps in order to enter their homes house in the country with long wheelchair rampare identified. These folks are unable to afford to put in the ramps and the Rotarians provide not only the materials but actually come to the homes and build the ramps. They are beautiful and functional. Please see the picture of one they built this year. The creed of Rotary is that leaders from all walks of life are united to amplify their individual contributions to make the world a better place to live and work. The Rotary Club of Harris County puts that creed to work. I want to particularly congratulate Tom Cheatham who was the fundraising chair this year for raising over $10,000 towards these endeavors.

https://www.facebook.com/HarrisCountyGeorgiaRotaryClub

The Exceptional Theater Company

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The amazing performers of the Exceptional Theater Company - Josh and Laura!!!!

The amazing performers of the Exceptional Theater Company – Josh Goldstein and Lauren Barney!!!!

By Rachel Goldstein

The Exceptional Theater Company (“ETC”) is a remarkable 501(c)(3) non-profit organization, designed to teach theatre to individuals of all ages with physical and/or intellectual disabilities throughout Miami-Dade, Broward and Palm Beach Counties, with over 20 drama classes, and a summer program in Asheville, North Carolina. The ETC drama classes recently presented a wonderful show ‘Sound of Musicals’. Here are stars Joshua Goldstein and Lauren Barney on stage during their performance.

 

For more information on this unique organization and upcoming events, visit http://www.etcsouthflorida.org/.

Disability: The Market You’re Missing Part II

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By: Rachel Goldstein

Welcome back for part two of my series addressing some of the most commonly asked questions by businesses. In part two I am going to focus on the most frequently asked question, “What can I do so I do not get sued?” With such a complex question in mind, this article is by no means comprehensive and simply meant to provide a basic understanding of what businesses are obligated to do to ensure people with disabilities are not excluded.
Who/Where? Businesses that provide goods or services to the public are called “public accommodations” are covered by Americans with Disabilities Act (“ADA”), regardless of the size of the business or the age of their buildings. Public accommodations include stores, restaurants, bars, service establishments, theaters, hotels, recreational facilities, private museums and schools, doctors’ and dentists’ offices, shopping malls, and other businesses.
What? Public accommodations are required to (1) modify their business policies and procedures when necessary to serve customers with disabilities, (2) take steps to communicate effectively with customers with disabilities, (3) remove architectural barriers in existing buildings and (4) make sure that newly built or altered facilities are constructed to be accessible to individuals with disabilities. Businesses that do not provide goods or services directly to the public, such as commercial facilities like office buildings, factories and warehouses, are only subject to the ADA’s requirements for new construction and alterations and have to ensure any newly built or altered facilities are made to be accessible.
Business have to make “reasonable modifications” in their usual practice when it is necessary to accommodate customers who have disabilities. Typically accommodations involve making minor adjustments in procedures or providing additional assistance to a customer with a disability.
When? For reasonable modifications and accommodations- anything that would result in a fundamental alteration – a change in the essential nature of your business – or would cause a “direct threat” to the health or safety of others is not required.
Businesses have to remove physical barriers in existing facilities to improve accessibility where it is “readily achievable”- when it can be easily accomplished, without much difficulty or expense – to do so. Barrier removal is an ongoing obligation and the determination of whether barrier removal is “readily achievable” is usually on a case by case basis.
How? The ADA does not explicitly state what each business must do in every situation and leaves discretion to the business to determine what is reasonable based on how the business operates and what kind of accommodation the person needs because of his or her disability. Similarly, what a business has to do to communicate effectively with customers with disabilities varies based on the business. What is required to communicate effectively when discussing a loan application at a bank or buying a house will likely be different from what is required to communicate effectively at a gas station.customer shopping with assistance
An important and often disregarded factor of ensuring success is widespread and continuous training for staff. A business may have great written policies but if the staff who deals directly with the public is not aware of the policies or does not know how to implement them, a business can run into an array of issues. Business should incorporate training about the requirements of the ADA for their staff so they understand the obligations and are aware of the role they play in ensuring individuals with disabilities are included in everyday activities and throughout the community.

Disability: The Market You’re Missing: Incentives for Business

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By: Rachel Goldstein

Recently the Small Business Committee of the Coral Rachel Goldstein Gables Chamber of Commerce presented a seminar ‘Disability: The Market You’re Missing’. I was one of several panelists at the seminar who explained to small businesses how to best serve customers, clients and employees with disabilities. As an attorney, most of the questions directed to me were about the legal obligations of businesses with the underlying theme “What can I do so I do not get sued?” While that is certainly a loaded question, I am going to write a three-part series addressing some of the most commonly asked questions by businesses.

Oftentimes people as well as businesses approach things by thinking ‘what is in it for me?’ so I am going to start there. Individuals with disabilities are potential customers like everyone else however they are frequently overlooked by businesses trying to bring in new customers or develop their business. People with disabilities have often been excluded from everyday activities like shopping at a grocery store and going to a restaurant with friends and want to frequent businesses that welcome customers with disabilities as well as those that employ individuals with disabilities.

Businesses that not only comply with the Americans with Disabilities Act (ADA) but are welcoming and have features that are usable by individuals with disabilities will get new customers who become repeat customers.

In addition to the potential for new customers, there are tax incentives for businesses to help them cover the costs of accommodations and those costs associated with making the businesses accessible. There is an annual tax credit for small businesses that make their businesses accessible or improve accessibility for persons with disabilities (IRS Code Section 44, Disabled Access Credit) and there is an annual tax deduction for businesses of all sizes for expenses incurred to remove physical, structural, and transportation (barriers in their vehicles) for persons with disabilities at the workplace (IRS Code Section 190, Barrier Removal).

Small businesses that in the previous year earned a maximum of $1 million in revenue or had 30 or fewer full-time employees are eligible for the tax credit. The tax credit is available every year and can be used by small businesses for costs such as those incurred from obtaining sign language interpreters for employees or customers who are deaf or hard-of-hearing, printing materials in accessible formats, purchasing adaptive equipment and in the modification of equipment or from removing barriers by widening a doorway or installing a ramp. Businesses of all sizes may take advantage of the tax deduction, which is also available every year, and can be used for a variety of costs to make a facility or a vehicle owned or leased for use in the business more accessible to and usable by persons with disabilities. Examples of expenses that the tax deduction can be used for include those associated with providing accessible parking spaces, ramps and curb cuts and providing telephones, water fountains, and restrooms that are accessible to individuals who use wheelchairs.

For more information on tax incentives for businesses to help cover costs of accommodations and to make their businesses accessible for people with disabilities, visit http://www.dol.gov/odep/ietoolkit/publications/186.pdf.

Panelists Will Beckham, Bonnie Blaire, Rachel Goldstein, Brenda Lampon and Lieutenant Colonel Tony Colmenares pose for a picture at the Coral Gables Chamber of Commerce seminar.
Will Beckham, Bonnie Blaire, Rachel Goldstein, Brenda Lampon and Lieutenant Colonel Tony Colmenares.