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I have been facing on going issues with my current employer.

Hello, I have been...

Hello, I have been facing on going issues with my current employer. I have explored every avenue when filing a reasonable accommodation form, and I still can’t move to a different job classification because of my weight.

Lawyer's Assistant: Have you discussed this with a manager or HR? Or with a lawyer?

Yes I have, i feel as if I am being discriminated against because of my weight, and singled out. I am not the only heavy person working for my company and others of equal size were able to move to different positions

Lawyer's Assistant: Are you an "at will" employee? Do you belong to a union?

I belong to a Union, I am considered “at will” I believe... and the union has not done anything for me on this matter. Anything HR says they just agree and go with their decisions

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

That I have applied to over 50 jobs, within my company... and I have been told they can’t hire me every time.

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Answered in 9 minutes by:
3/15/2018
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,123
Experience: Employment/Labor Law Litigation
Verified

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance. (The system will automatically generate a phone call request to you. Unless I specifically state, during our discussion, that a phone call is possible, I intend to just use this chat format as I am not in a position to accept a phone call).

The ADA does not typically require the employer to move a person to a new job as a reasonable accommodation, only calling for accommodations within the job that you presently have.

Furthermore, if they have been moving others with a similar accommodation request and not you, that really suggests a different motivation for not moving you other than them not wanting to accommodate people with weight issues. Instead, it seems more personal. While that is certainly unfair, it actually cuts against any claim that you would have that this has anything to do with perceived disability discrimination based on weight. So yes, singled out but not because of your weight because they moved others of equal weight.

Just being singled out, by itself, does not legally establish a claim. You cannot just say "I was singled out and I fit into a protected class." You have to show that you were singled out because of your race, religion, gender, age, or perceived disability and these facts don't support that.

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Please DON’T rate my service until after you have asked any follow up questions that you have, so that I have the best opportunity to earn all 5 stars. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 1 month ago
I am currently in a surplus pool since my plant has shut down, meaning the company is giving us one year to move into other positions within the company. I am the only person left in the pool. This position I have tried for is exactly the same position I am currently in. It is a lateral transfer and not a promotion. They only have me on a weight restriction, and not others of equal weight. Do I have any leverage? Even with the undue stress this has caused me.

Not unless you can argue that the basis for their differing treatment of you is your race, religion, gender, age or perceived disability.

Clearly, they are singling you out, but you've not given any indication that it is for one of those illegal factors I mentioned.

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Customer reply replied 1 month ago
Morbid obesity is not a disability? I am able to do the work, clearly they are perceiving me disabled.
Customer reply replied 1 month ago
My doctor has even submitted clearance that I am able to do the work.

It is a perceived disability, but if you are the only one of weight that they are treating that way....then it suggests that your weight is not specifically their issue.

Otherwise, they would be treating every other person of that weight or similar in the same way. Does this make sense?

It's like a woman saying she was not promoted because the workplace discriminates against women, when the employer doesn't appear to discriminate against any of the other women and promotes them. That fact really calls into question that gender has anything to do with their singling out that particular woman.

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Customer reply replied 1 month ago
I suppose it is legal to assume the risks of other employees that are over weight, whether they place restrictions on 1 or 2 out of 300?

Yes, they can do that. That's not the issue.

The issue is painting this as disability discrimination when that does not appear to be what they are doing. Instead, they appear to be singling you out specifically. I don't know why, but unless you can allege some other form of discrimination, there isn't anything to be done here. They can show favoritism, unless based on race, religion, gender or age here.

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Customer reply replied 1 month ago
Ok last question, if the companies medical department places you on medical restrictions, but your primary doctor medically clears you, who’s ruling supersedes who’s.

The employer can choose to go with their doctor's recommendation on restrictions over your own.

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Customer reply replied 1 month ago
Understood, if I am terminated because I can’t be placed in a position, at the end of the agreement for the surplus letter, will I have leverage or that’s just the way the cookie crumbles?
On these facts I just really don't see you having any leverage based on a claim of discrimination if you were not placed in the position and they ultimately ended up terminating your employment. You would be able to claim unemployment because it would be termination based on no fault of your own. Of course I would certainly consider in your instance filing a claim with the EEOC alleging perceived discrimination. I understand what the argument would be against it but they may not understand what their argument and may not in fact make that. Just the filing of the EEOC complaint may give you some leverage to work out of severance agreement if you were let
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Customer reply replied 1 month ago
Would contacting my local EEOC branch help me with moving into a lateral position?

It might, but then again, if the employer argues the same point I have been explaining to you, it will result in no assistance.

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Customer reply replied 1 month ago
Understood, there just has to be some sort of resolution to this issue, I’m even going for weight loss surgery next month. I’m doing everything I can on my part.

I think that contacting the EEOC can at least give you some chance of arguing with the employer about options, unless they stone wall.

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Customer reply replied 1 month ago
This is true, I know stupid question but is stone walling illegal? I have been filed a reasonable accommodation form just for the company to provide me with a different ladder... This is a major utility company worth billions, I don’t see why it would be an issue.

No, it is not. Nothing in the law says that they have to talk with you and negotiate after you file an EEOC complaint. They can simply refuse and stand by their position, at which point it will have to through the regular EEOC investigation process.

Now, you are saying something a little different than I've seen you mention before. A different ladder should be a reasonable accommodation within your job. An entirely different position, that is not considered a reasonable accommodation.

If they won't even give you the ladder, you should file with the EEOC.

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Customer reply replied 1 month ago
it’s all a big confusion, but yes they refused to provide me with the equipment to lift my restrictions. I guess I’m looking for any leverage because I do feel discriminated against but you clarified that by distinguishing what is and isn’t discrimination.

I think that the refusal to accept your request for a ladder is something different, and I think you should file a complaint with the EEOC immediately.

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Customer reply replied 1 month ago
I will absolutely I thought it all coincided, and that law stated they do not legally have to accommodate anyone, and could claim hardships or whatever else be the case, resulting in zero leverage for me.

No, they must reasonable accommodate unless they can show that the accommodation request is an undo hardship. A ladder that differs isn't going to be considered an undue hardship for a company of that size.

They can get away with the failure to transfer, because the ADA doesn't require transfers. The ladder is another issue.

File with the EEOC.

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Customer reply replied 1 month ago
Understood thank you so much.

Take care. Good luck going forward.

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Customer reply replied 1 month ago
Thank you again, if I need further assistance or advice just reach out via this chat forum?

Yes, you can put my name in the subject line.

You can even reopen this question after you have rated my service.

Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,123
Experience: Employment/Labor Law Litigation
Verified
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Allen M., Esq.
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,123
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Experience: Employment/Labor Law Litigation

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