Americans with Disabilities act and older workers

[Content1]

     I was asked by an employer recently if I had any limitations prior to being offered a job in this business.  That question seems innocent enough, as you don't want a job you cannot perform.  The only problem with it is it is illegal, at least according to the website under the US Equal Employment Opportunities commission.
     The problem with the question is it is too general.  It is seeking a revelation of a person's disabilities pre job so the employer may reject such an individual even if the employee can perform the core duties or functions of the job, even if the cannot perform some incidental duties. 

Quoting the website:  US Equal Employment Opportunities commission:

     If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability.  An employer can ask if you can perform the duties of the job with or without reasonable accommodation. .  .
     The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.   

I guess the proper question should have been, "Can you perform the essential core duties of your job?"  I wonder if anyone else has experienced this end around the American with Disabilities Act?  As the HP workforce continues to age, maybe we cannot climb the 100 foot ladder anymore carrying 50 lbs, but should our lack of youth be the new excuse to exclude us from the workforce?

[GLW]

     I was asked by an employer recently if I had any limitations prior to being offered a job in this business...... 

.....I guess the proper question should have been, "Can you perform the essential core duties of your job?".........

you guessed wrong,...

the employer is trying to gauge what reasonable accommodations you may require,...

the employer is not a mind reader,...

if you do not tell the employer that you require reasonable accommodations to perform the job then the employer is left in the delicate position of ascertaining those accommodations, and so they must ask you without tripping over any of the "don't ask" criterion,...

there is no cut and paste government supplied question format to ascertain those answers, just a short list of prohibited specifics,...

quite frankly, old people who cannot keep up have never had it so "fair" when it comes to employment in the dam near 40 years I've been working for a paycheck,...

technology and pc sensitivity have relegated the younger and fitter to a much longer apprenticeship than was previously the norm,...

intellect need not be backed up by stamina as it once was,...

the slow old farts just don't get moved aside like they did once upon a time,...

nowadays they are "reasonably accommodated",...

and with a shrinking base of commercial units needing support those decades of individual experience coupled with reasonable accommodations makes it tougher and tougher for the younger and fitter to get a wide range of experience, and so they remain less competitive for longer than it was once upon a time,...

as posted earlier today, those days are long gone:

   Sorry to see VY go it was my first commercial plant out of the Navy in 79'. It had a bad batch of fuel and I got the opportunity to operate the fuel sipping panel and draw samples for analysis, do Rad coverage on a real nasty refuel floor, operate the GeLi and other count room equipment, and ship radwaste. There is no way in the current regulatory environment that it would be possible for a green ex-navy nuke do that today when you are only in for a short outage. VY made my transition to commercial very easy there was a very good group of techs there.

most of that is just my opinion, I could be wrong,....

but I'm not,....

if you feel aggrieved I guess you can always file a lawsuit,...

[Content1]

That is why these discussion boards are helpful to let people know of their rights.  I spoke with an assistant to the employer I spoke of and she said for 17 years they had been asking the question of a person's limitations for years.  She also said that if you have any limitations you could be let go upon discovery at an outage.  That is in direct violation of the ADA and you mentioned if a person feels their rights are violated, to seek legal action.  I would like to point out to people there is some teeth in the law. 

According to the same EEOC website, if a violation can be proven:

Q. How are the employment provisions enforced?

A. The employment provisions of the ADA are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991. Complaints regarding actions that occurred on or after July 26, 1992, may be filed with the Equal Employment Opportunity Commission or designated State human rights agencies. Available remedies will include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.
Damages Recoverable under the ADA
The damages under the Americans with Disabilities Act (ADA) are the same as those available under Title VII. The recoverable damages are as follows:

Back Pay. This consists of wages, salary and fringe benefits an employee would have earned during the period of discrimination from the date of termination (or failure to promote), to the date of trial.

Compensatory Damages. These are future losses, emotional distress, pain & suffering, inconvenience, mental anguish & loss of enjoyment of life. It is important to note that the law places caps on compensatory damages according to the size of the employer. The limits on damages are as follows:

Up to 100 employees: $50,000
101-200 employees: $100,000
201-500 employees: $200,000
500+ employees: $300,000

Attorney's Fees. If the employee wins, he/she may be awarded the fees the attorney generated in handling the claim.

Punitive Damages. Those meant to punish the employer for the adverse actions. They are limited to cases where the "employer has engaged in intentional discrimination and has done so with malice or reckless indifference to the federally protected rights of an aggrieved individual." Kolstad v. American Dental Association, 119 S.Ct. 2118 (1999). These damages are also capped according to the size of the employer and are the same as those listed above:

Up to 100 employees: $50,000;
101-200 employees: $100,000;
201-500 employees: $200,000;
500+ employees: $300,000

Front Pay. This is designed to restore victims to their "rightful place". It compensates the victim for anticipated future losses due to discrimination.

Injunctive Relief. Available when there is an intentional discriminatory employment practice. For instance, an employee can be reinstated and an employer can be ordered to prevent future discrimination.

[GLW]

That is why these discussion boards are helpful to let people know of their rights.  I spoke with an assistant to the employer I spoke of and she said for 17 years they had been asking the question of a person's limitations for years.  She also said that if you have any limitations you could be let go upon discovery at an outage.  That is in direct violation of the ADA and you mentioned if a person feels their rights are violated, to seek legal action.  I would like to point out to people there is some teeth in the law....

I would be cautious about getting dollar signs in your eyes because of a single question,...

"Upon discovery at an outage" implies a utility,...

In my experience, utilities are very accommodating of a persons limitations,...

It is not the body shop that is denying the work upon discovery at the outage, it is the utility, is it possible there is a utility which is violating the ADA?

Well, while anything is possible, I surmise it is improbable that utilities are violating the ADA,...

[Content1]

We always have to watch for the slippery slope of people trampling on our rights.  If people are aware what a utility can and cannot do they will act accordingly.  The next time I am asked about any limitations I have, I will answer I am able to perform the core functions of the job and leave it at that.  I just wanted others to know their rights and to stand up for them.

[retired nuke]

I'm not sure, but I believe that the utility can specify the duties (e.g. lift 50 lbs, climb a ladder, work standing on hard surfaces, work in elevated temps, etc) to the contract company and require that the company certify that workers could perform to those requirements, or list any accommodation that would be necessary. The utility specifies the requirements that the contract must meet regarding number of personnel able to do specified work. They are all part of the RP Tech job, but if not specified, can be misinterpreted. The contract company is responsible for meeting those needs. The utility doesn't "fire" supplemental workers. They inform the contract company if something specified in the contract isn't being met, and request that the contract company correct the deficiency.

It will cut down on the wheezers and chair ballast that "can't do that survey" or "can't cover that work"

Reasonable accommodation does not mean everyone gets an air conditioned office and a computer to use for ebay. (unless you are ALARA, then it's definitely a requirement -  )

[surf50]

At this point I may remind people that the terms 'old' and 'disabled' and 'slow' are not synonymous.

I see younger techs who need 'accommodation' all the time, many times due to their poor lifestyle choices.

Usually, the refuel floor techs I end up working with are the older, more experienced, AND physically capable crew.

[Content1]

I'm not sure, but I believe that the utility can specify the duties (e.g. lift 50 lbs, climb a ladder, work standing on hard surfaces, work in elevated temps, etc) to the contract company and require that the company certify that workers could perform to those requirements, or list any accommodation that would be necessary. The utility specifies the requirements that the contract must meet regarding number of personnel able to do specified work. They are all part of the RP Tech job, but if not specified, can be misinterpreted. The contract company is responsible for meeting those needs. The utility doesn't "fire" supplemental workers. They inform the contract company if something specified in the contract isn't being met, and request that the contract company correct the deficiency.

It will cut down on the wheezers and chair ballast that "can't do that survey" or "can't cover that work"

Reasonable accommodation does not mean everyone gets an air conditioned office and a computer to use for ebay. (unless you are ALARA, then it's definitely a requirement -  )

When I worked at one DOE site they had no engineering controls so everyone had to use a respirator.  Most sites it is rarely used in most of the jobs.  If the company made a request you must qualify and a respirator is a prerequisite, they that would apply to everyone and you would say so in the advertisement. 

That is not the same as asking a fishing expedition question asking for your disability without a context.   Under the ADA that is illegal.  This law was passed to prevent disabled people from being considered for jobs when they could otherwise perform the job with reasonable accommodations.  This is in the pre-hire stage. 

With so many workers in their 50's or 60's, many cannot do what they did in their 20's and 30's.  These are the most experienced workers and they can do their core functions at the job.  Their experience and collective knowledge comes in handy for situations that are not part of the training the new people get.  When they reach retirement age they drop off the system naturally.  Some companies, especially those hiring for permanent workers are concerned older folk will cost the company more.  I am not sure if that is true anymore under Obamacare, as they can't deny you insurance anymore for pre-existing conditions nor charge a higher premium.  That was one positive thing older workers should thank Obama for.

Whether you may personally like the law under the American with Disabilities Act, it is the law and workers should be aware of their rights and if companies start to try to circumvent its intent, we have a right to speak up. 

[HeatherB.]

Just a week ago I was told by a recruiter that the XYZUtility was REFUSING to employ ANY contractors from having ANY type of health restrictions at all! I was told it was an industry-wide change that was happening, Liability issues & risk assesments, the Utilities were not paying for desk jockeys anymore, Blah, Blah, Blah. Said that some utilities are leading the zero-tolerance charge & would no longer accept "health restricted" contractors (regardless of experience level).

I'm looking forward to our first day at training when a good number of techs are asked to leave. UNLESS.... the company actually only confirmed able-bodied workers, all of whom can climb the 468 stairs in CTMT, climb all over the AUX blgd., pass a respirator fit test & then have to USE one on the job, be dressed out in PC's in the heat for hours on end, etc.  We shall see.....!

[Chimera]

It's almost as if the Americans with Disabilities and Fitness For Duty were designed to conflict with each other.

[jezibel]

This post is extremely useful to my situation at the moment. Thank you for posting so much information. At least now, I have an idea of what I can do, legally.  (long story, not going to post unless there is a positive outcome. then I'll share my experience)


(God, I love these emoticons)

[Content1]

Just a week ago I was told by a recruiter that the XYZUtility was REFUSING to employ ANY contractors from having ANY type of health restrictions at all! I was told it was an industry-wide change that was happening, Liability issues & risk assesments, the Utilities were not paying for desk jockeys anymore, Blah, Blah, Blah. Said that some utilities are leading the zero-tolerance charge & would no longer accept "health restricted" contractors (regardless of experience level).

I'm looking forward to our first day at training when a good number of techs are asked to leave. UNLESS.... the company actually only confirmed able-bodied workers, all of whom can climb the 468 stairs in CTMT, climb all over the AUX blgd., pass a respirator fit test & then have to USE one on the job, be dressed out in PC's in the heat for hours on end, etc.  We shall see.....!

The reason you called it XYZ Utility is because it is a fairy tale, you left out the "Once upon a time."  It would cause one of the biggest class-action lawsuits in history.  Utilities are barely getting by with competition from Natural gas.  The cost of defending civil rights action would be the nail on the coffin.

[Content1]

It's almost as if the Americans with Disabilities and Fitness For Duty were designed to conflict with each other.

There is no real conflict.  FFD usually involves choices like when to drink before work.  Disabilities vary with a spectrum usually not involving choice.  They do not give you "cushy" jobs if you have trouble somewhere.  They give you hard jobs that if you cannot perform you can still get laid off.  I was recently in that situation and the replacement job was much harder mentally with standards allowing 0 errors.  Luckily I had been in the industry so long I was able to draw on others skills not coming from the utility and found a way to perform nuclear documentation with zero errors.  Newer younger folk whom I replaced had lasted only a couple of days.

[BetaAnt]

The reason you called it XYZ Utility is because it is a fairy tale, you left out the "Once upon a time."  It would cause one of the biggest class-action lawsuits in history.  Utilities are barely getting by with competition from Natural gas.  The cost of defending civil rights action would be the nail on the coffin.

I know of a federal contractor in the southern states with over 10,000 lawsuits. Their lawsuit strategy is to continue, and continue and continue, ad nauseum. The original plaintiff will either die, go bankrupt, or settle for pennies. Remember the golden rule...

HE WHO HAS THE GOLD MAKES THE RULES. 

Who is the court going to believe, the utility that gives millions to the community or some lowlife road-trash that can't hold a job for more than a few months at a time???

Just try to get the rent-a-tech companies to send you a confirming email for a job (EB this is your cue to sound off). Nepotism runs throughout this industry and no one (HR or the utility) gets involved.

BA 

[Content1]

I know of a federal contractor in the southern states with over 10,000 lawsuits. Their lawsuit strategy is to continue, and continue and continue, ad nauseum. The original plaintiff will either die, go bankrupt, or settle for pennies. Remember the golden rule...

HE WHO HAS THE GOLD MAKES THE RULES. 

Who is the court going to believe, the utility that gives millions to the community or some lowlife road-trash that can't hold a job for more than a few months at a time???

Just try to get the rent-a-tech companies to send you a confirming email for a job (EB this is your cue to sound off). Nepotism runs throughout this industry and no one (HR or the utility) gets involved.

I don't think you have any concept of what goes on in a real lawsuit.  There is probably about a 1,000 actual rad tech traveler in the entire country, with a few real lawsuits in progress.  There is a higher rule then the golden one, he who has a good case wins.  The fact your refer to fellow workers as "Low life trash" shows your lack of respect for the profession.  It also shows you have a tendency to manufacture your argument based on unsupportable assertions.  10,000 lawsuits with one company?  that would take 10 lawsuits per traveler, a fairy tale indeed.

[Content1]

Just a follow up on the outages this spring.  I am working for the same recruiter, going to sites run by the same company and amazingly nobody asked about my limitation pre-job as last fall.  I am diabetic and I do have some limitations, but I am stable and there was plenty of work to do.  At my last outage, for my first time in my career, got an "A" overall evaluation.  Yes, I may have trouble climbing a ladder to the top of the pressurizer when the temperature is 110 degrees for a six hour jump.  My 20 years experience allowed me to do many tasks and I had the ability to do what my supervisors requested without coaching.  I found most sites are cooperative to the needs of the handicapped with the exception of Clinton which chose to eliminated about 20 handicapped spaces for most of the outage for INPO parking spaces.

[Content1]

An informal non-scientific poll of another posting demonstrated about 1/2 the workers are over 50.  If they took the short-sighted view to eliminate the non-perfect older workers they would lose 1/2 the workforce.  It is kind of hard to fully staff outages now for senior techs, let alone cutting out 1/2 of your experienced people.