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Bryant Legal, LLC is pleased to announce that as of January 1, 2022, Matthew B. Bryant has successfully completed all requirements of the Ohio State Bar Association and is now an OSBA-Certified Specialist in Labor and Employment Law!

The Ohio State Bar Association is accredited to certify specialists in 11 practice areas. Attorneys who wish to become a certified specialist must meet the following requirements:

  1. Demonstrate a high level of substantive involvement in their specialty area.
  2. Fulfill ongoing education requirements.
  3. Be favorably evaluated by other attorneys and judges familiar with their work.
  4. Take and pass a written examination in their specialty field.

Not every employment lawyer can say they are a specialist in their particular field of practice, and Matt is excited to continue helping employees in all facets of employment law as a Certified Specialist!

What is National Disability Employment Awareness Month?

National Disability Employment Awareness Month (NDEAM for short) is held every October to celebrate the contributions of people with disabilities to workplaces in the United States.

What is the theme for National Disability Employment Awareness Month 2021?

Every year, the U.S. Department of Labor proposes a different theme for NDEAM. The theme for 2021 is “America’s Recovery: Powered by Inclusion.” This theme is intended to stress the importance of people with disabilities to be able to have access to employment opportunities as our country tries to recover from the ongoing COVID-19 pandemic.

What does disability awareness mean?

Disability awareness is intended to educate the general population about how we can be a more inclusive and equitable place for everyone, including those with or without a disability.

How can I participate in National Disability Employment Awareness Month?

Review policies

This month is a great time to review your company’s policies as well as take into consideration if there are things you can do to help create a more inclusive culture at the office or one that’s more accessible.

Educate yourself and others through disability training

One person cannot create an inclusive environment at their workplace. It takes a team effort, and if not everyone is fully on board, that can create serious issues at every level. One way to build that inclusive environment is to propose and/or host a disability training session. There are many local disability organizations out there and some of them may offer workplace training programs.

Be a mentor for a day (or longer)

Disability Mentoring Day is observed nationwide on the third Wednesday of every October, right in the middle of National Disability Employment Awareness Month. (This year, the exact date is October 13, 2021.) This day is used to further career development for youth with disabilities in a number of ways, including:

  • hands-on programs
  • job shadow opportunities
  • mentorships

Of course, you don’t have to be a mentor just on this holiday; you can offer mentorship programs and other opportunities throughout the month or throughout the year.

The American Association of People with Disabilities (AAPD) website has further information on how you can implement a Disability Mentoring Day event and make a positive impact on another person’s life.

I’m an employee with disabilities — what are my rights in the workplace?

Employees with disabilities are protected from discrimination by the Americans with Disability Act of 1999 (ADA), as amended (ADAAA). The ADA/ADAAA is a federal law that prohibits certain entities — including but not limited to private employers, employment agencies, labor organizations, or joint labor management committees — from discriminating against a qualified individual (including job applicants, employees and former employees, or participants in training or apprenticeship programs) because of their disability in any aspect of employment. An aspect of employment includes hiring practices, job application procedures, advancement or promotions, compensation, job training, discharge of employee, and other terms, conditions, and privileges of employment. In 2008, the Act was amended to expand coverage to the broadest extent.

Disability discrimination occurs when an entity covered by the ADA treats a qualified individual with a disability differently (that is, less favorably) because they have a disability. Qualified individuals can be employees or an applicant in the hiring process.

Disability under the ADA/ADAAA

Under the ADA, a disability is defined in 3 ways:

  1. a physical or mental impairment that substantially limits 1 or more life activities;
  2. having a record of an impairment; or
  3. being perceived as having an impairment.

A physical impairment can affect one or more body systems. Examples of physical impairments include a disorder or condition, cosmetic disfigurement, or the loss of a body part that affects one or more body systems.

Mental impairments include mental and psychological disorders, such as learning disabilities, intellectual disabilities, and emotional or mental illnesses (i.e., depression).

Importantly, to have a disability, it does not have to be a permanent condition. It also does not have to manifest negative symptoms on a frequent basis. For example, if you have a heart condition, but it is controlled through prescription medication, it can still be a disability.

Reasonable accommodation

To be protected under the ADA, you must be able to perform the essential functions of your position with or without an accommodation. What does that mean? Let’s assume an employee suffers from migraines at times. For purposes of this hypothetical, the employee’s job duties require him to be in an office setting. When migraines occur, dimming the lights and/or wearing sunglasses inside helps prevent and/or lessen the negative symptoms associated with migraines. Is this a reasonable accommodation for an individual? Generally, yes, so long as the individual can perform the essential functions of the position and does not cause the employer undue hardship.

Although no formal words are required, you must request a reasonable accommodation to your supervisor or the HR department. This request can be reported either verbally or in writing. When the request is reported, the employer has an ongoing duty to engage in an interactive process to determine whether there is a reasonable accommodation(s). This interactive process is individualized for each person. Here are some examples of reasonable accommodations:

  • job restructuring
  • additional medical leave beyond the permitted amount under FMLA
  • reassignment to an open position
  • light duty
  • modified work schedules and policies
  • flexible leave
  • specialized training
  • purchase and/or provision of equipment and devices such as readers, personal assistants, and communication access providers

As mentioned above, reasonable accommodation requires you to perform the essential functions of your job, and your employer cannot unilaterally determine that you are unable to perform your job. If your disability makes it impossible for you to perform those essential functions, however, you may not be protected under the ADA. Each situation is highly individualized, so it is best to contact an employment attorney who represents employees to discuss your options.

Speak to an attorney about your disability rights during National Disability Employment Awareness Month

National Disability Employment Awareness Month is about more than educating people about disabilities — it’s about ensuring your rights are not being violated in the workplace.

Disability discrimination is more common than you may be aware and it is possible your employee rights are being violated through discrimination.

If you believe you have been discriminated against because of a disability, actual or perceived, or from having a record of a disability, contact the Columbus, Ohio, and Toledo, Ohio, disability discrimination lawyers at Bryant Legal LLC.

June is Pride Month, a time when the LGBTQ community comes together to celebrate their strength in spite of the decades of hardship and discrimination they have faced for just being themselves and loving the people they love, from the Stonewall riots to the AIDS crisis.

Sadly, LGBTQ discrimination is still an issue even in 2021, but there have been many landmark improvements over the years that allow for legal recourse in the event you believe you have been discriminated against because of your sexual orientation.

Bryant Legal LLC recognizes the incredible resilience the LGBTQ community has and is here to help its members when they face certain types of discrimination. We hope to help you better understand your LGBTQ employment rights if should you ever experience discrimination in the workplace and would be honored to present you in a case if your employment rights are violated.

Can I be illegally discriminated against based on my sexual orientation or gender identity?

No. On June 15, 2020, the U.S. Supreme Court ruled that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex. 

The 1964 Civil Rights Act does not directly state that these characteristics were protected from sex-based discrimination, so the fact that the Supreme Court stated that these identities fall under the umbrella of sex discrimination is important

The federal and Ohio state governments are also considering passing laws that would protect the LGBTQ community from more types of discrimination.

What’s the difference between the Equality Act and the Ohio Fairness Act?

The Equality Act

The Equality Act is a bill that would amend that 1964 Civil Rights Act and make it so it is explicitly stated that discrimination based on sexual orientation and gender identity is illegal. This would apply to more than just employment discrimination and would ensure that LGBTQ people would have equal protection against discrimination, just as anyone else in the United States does.

The Equality Act would also trump the Religious Freedom Restoration Act (RFRA), which means people whose religious beliefs may not approve of same-sex couples or transgender people cannot deny LGBTQ people housing, goods, and services on the basis of their religion and use RFRA as a defense for doing so.

The U.S. House passed the Equality Act on February 25, 2021, but it faces an uphill battle in the Senate.

The Ohio Fairness Act

The Ohio Fairness Act, or OH SB 119, is a bill that would make it illegal to discriminate against gay, lesbian, and transgender people throughout the state of Ohio.

If that the Equality Act does not make it through the U.S. Senate, the Ohio Fairness Act would ensure that discrimination against LGBTQ people in Ohio would be illegal.

Compared to the federal Equality Act, the Ohio Fairness Act does provide greater protection for LGBTQ people as it would apply to employers with more than 4 people (federal anti-discrimination laws apply to businesses with more than 50 employees). However, there are religious exemptions to the Ohio Fairness Act, which would allow religious organizations to discriminate in certain situations.

Despite partisan support for the Ohio Fairness Act, it’s unclear if this bill will pass a chamber, as the last time a similar bill passed a chamber, it was in 2009, when Democrats were in control of the Ohio House

What are some examples of LGBTQ employment discrimination?

  • Being fired after publicly transitioning or coming out
  • The retraction of a job offer after an employer reviews social media posts that show you and your same-sex partner together or posts revealing your transition
  • Being asked inappropriate questions about your sex life or genitals, offensive remarks about clothing, inappropriate touching, etc., to the degree it affects your ability to work effectively; retaliating against you for reporting the sexual harassment to HR by passing you over for a promotion you’ve earned, being excluded from meetings that would improve your position, change in compensation, etc. (hostile work environment sexual harassment)
  • Being asked to transfer positions (i.e., being asked to move from your public-facing position to a different department after starting to transition)
  • Being treated unfavorably due to your sexual orientation or gender identity, such as being denied or deprived of opportunities that could lead to a promotion or better pay

Bryant Legal LLC is here to protect LGBTQ employment rights

If you believe you have experienced any of the above situations, contact Bryant Legal LLC today. We can help you determine whether or not you would be able to pursue legal action against your employer due to LGBTQ discrimination. Contact us today for a consultation or to request more information.

How to Prove Retaliation

written by Daniel Bryant

What is retaliation?

Retaliation occurs when an employer takes an adverse action against you because you participated in protected activity. In order to assert your rights, you need to protect them. The purpose of this blog is to generally explain what can constitute unlawful retaliation, how to prove that you have been retaliated against, and what damages you can potentially recover. 

“Protected activity” is very broad. A non-exhaustive list of protected activities includes, but is not limited to, the following:

  • Refusing to follow orders that would result in discrimination
  • Filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a similar agency
  • Assisting in an EEOC or agency investigation
  • Participating in any manner in an internal investigation, proceeding, or hearing involving allegations of discrimination
  • Filing or participating in a discrimination lawsuit
  • Witnessing an EEOC charge, complaint, investigation, or lawsuit
  • Communicating with a manager or a supervisor about employment discrimination
  • Opposing discrimination in the workplace (even if it is not you directly who has been discriminated against)
  • Resisting sexual harassment or stepping in to protect others from it
  • Talking about wages with fellow employees or supervisors, regardless of a union’s involvement

Retaliation can negatively impact the trajectory of your career, as it can result in the loss of your job, demotion or being passed over for promotion, job reassignment, or cuts in hours or wages. 

Proving unlawful retaliation can make sure you receive the compensation you deserve — but it is not as easy. It requires you to prove 3 components, and failure to prove just one of these items can end in your case being tossed out.

The 3 components of retaliation

In order to prove retaliation, you have to show the following 3 components to be true:

1. You participated in a protected activity or refused to obey an illegal act

There are 2 types of retaliation: retaliation to opposition and retaliation to participation.

Retaliation to opposition refers to retaliating against an employee who has refused to to obey a discriminatory order and can also be applied to employees complaining about alleged discrimination they have experienced or others have experienced, picketing to oppose discrimination, and threatening to file a discrimination charge.

Retaliation to participation focuses on retaliation against employees who have engaged in a protected activity, such as filing a charge of discrimination, opposing unlawful conduct (or testifying about said unlawful conduct), and participating in an investigation, proceeding, or hearing about the unlawful conduct.

If you have done either of these things, then you can continue to the next component.

2. Your employer took adverse action against you

You need to prove that your employer took adverse action against you. Adverse action can come in several forms, including but not limited to:

  • demotion
  • suspension
  • termination or firing
  • failure to promote
  • reassignment to a position with vastly different responsibilities or requirements
  • a decision that causes a significant change in benefits, such as a reduction or an increase in work hours

Verbally abusing employees who participated in a protected activity or refused to obey an unlawful act and thus creating a hostile work environment may also be constituted as an adverse action. 

3. There is a connection between your employer’s adverse action and your protected activity

Proving causation (that is, the proof that your participation in the protected activity triggered your employer’s adverse action) is one of the most difficult parts to prove, as these cases typically rely on circumstantial evidence.

It is rare for an employer to directly state or even admit that you were demoted, fired, or suspended because you engaged in a protected activity. Even if they have, it’s your word against the employer’s word, which was probably not recorded.

You must make the connection between the adverse action and the protected activity, even though there may not be a direct link. 

For example, if an individual who is qualified under the Americans with Disabilities Act requests a reasonable accommodation is transferred to a different job after making that request, this can be considered retaliation. Making that reasonable accommodation request is considered a protected activity, and transferring them to a different job is considered an adverse action.

While the employer never said why the employee in this example was transferred to a different job, it can be inferred that it was because of the employee’s reasonable accommodation request.

Likewise, when an employee files a sexual harassment complaint with the employer’s human resources department (a protected activity) and the managers reassign her to less favorable projects, stop including her in meetings, and tell coworkers not to speak with her, we can see that before the complaint was filed, the employee was not treated this way. We can infer that this is an adverse action (hostile workplace, failure to promote, and a decision that causes a significant change in benefits) and because we’ve established that connection, we can prove it as retaliation.

Bryant Legal LLC can help you prove retaliation

Although it may seem simple at first glance, proving retaliation is difficult to do.

That’s why it’s important to contact an employment lawyer at Bryant Legal LLC. Our employment attorneys can help you make the connection between the protected action and adverse action and gather evidence that is considered admissible in court. You need every piece of evidence to ensure the outcome of the lawsuit is in your favor, and we will do everything we can to tip the scales in that direction.

Speak to one of our attorneys today for more information and we’ll see what can be done about your case.