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  1. #1
    Join Date
    May 2008
    Posts
    20

    Default Getting Reassigned As A Job Accommodation

    I live in California and work for a very large well known company. As my alias implies, I feel like I am in the middle of a nightmare!

    I was diagnosed with ADD/Bipolar about 8 years ago and have been actively in treatment ever since. I also have a high IQ and am a high performer, which is why most managers accommodate whatever I have needed, unofficially.

    I'll spare you the details, but let's just say that last year, I got a new manager who is a control freak and he refused to acknowledge my limitations. It was like he wanted me to become a "yes, sir" person and he was going to beat me down until I did. Unfortunately, as he was doing this, he was exacerbating all of my ADD/Bipolar symptoms in the worst way and I pleaded with both him and HR to stop. My doctor provided a multitude of job accommodations aimed at preventing him from causing adverse reactions, thus impacting my performance.

    I finally went on leave because I was ready to break. My boss gave me a review of "unsatisfactory". In 20 years, I have always had B+ reviews (exceptional in most areas). He gave me an F. What's wild is that in May, he (his boss, really) gave me a large bonus for my performance in turning the org around. His F came in August (shortly after I refused to move to a project manager job, BTW, because I would die that slow, miserable death).

    My doctor has now requested reassignment to a different job. I am highly qualified in many areas, but my employer refuses saying that they don't do that just because someone doesn't like their boss. I have been off work for 7 months now and hate it. I do not want to give up my unvested stock options (A LOT) and all that I have built up at my current company. I also love the company I work for.

    My lawyer isn't doing anything. She's just working to get me a job, but my employer wants me gone. They don't want to deal with me. I also filed a gender bias claim against him, which is the point where HR turned their backs on me. My employer told me my only option was to come back and work for my boss (he'll fire me) or take 30 days to find another job (never happen with an unsatisfactory review). They have now posted for my position, so basically when my disability leave is over, I will be terminated.

    The EEOC doesn't seem supportive of mental illness. My lawyer seems to have blown it with the DFEH by filing a right to sue letter. My boss was difficult and insensitive to my mental disability, which is why I am asking for reassignment. Does anyone know if there are any cases justifying this as a reasonable accommodation (when the manager is clearly non-supportive)? My employer has cited many cases where the person just didn't like their supervisor, among other irrelevant reasons. Any advice as to whether I should go directly to the EEOC? Will that hurt my chances for a lawsuit later?

  2. #2
    Join Date
    Dec 2005
    Posts
    200

    Default Re: Mental Disability Discrimination

    Is your doctor requesting reassignment to another job to enable you to perform the essential duties of a job, or to provide you with a new supervisor because of the problems you are having with him?

    If it is the latter, EEOC's policy is against you. EEOC answers

    Does an employer have to change a person's supervisor as a form of reasonable accommodation?

    No. An employer does not have to provide an employee with a new supervisor as a reasonable accommodation. Nothing in the ADA, however, prohibits an employer from doing so. Furthermore, although an employer is not required to change supervisors, the ADA may require that supervisory methods be altered as a form of reasonable accommodation.(99) Also, an employee with a disability is protected from disability-based discrimination by a supervisor, including disability-based harassment.
    http://www.eeoc.gov/policy/docs/accommodation.html

    Instead, your doctor should be addressing the supervisory techniques that should be used to supervise you because of your condition. Your supervisor might need training to work effectively with your condition.

    Of course, all of this assumes that you are a QUID and your employer is required to attempt to accommodate you.

    Was the notice of right to sue from both DFEH and EEOC?

  3. #3
    Join Date
    May 2008
    Posts
    20

    Default Release Of Medical Information

    I just posted a minute ago regarding a mental disability, but wanted to add one other issue that continues to keep me up at night. First, I work for a large, well known company in California.

    I'm sorry this is so long, but I couldn't figure out what was not important!

    When my employer realized they could not get my manager to change his nazi management style, they decided to go on the offensive and have their disability consultant work with my doctor to see if I could actually perform the essential functions of the job. My boss provided a new job description (4 out of the 7 bullet points could be considered limitations, 2 out of the 7 were the low end of my job and only 1 out of the 7 were actually main functions of my job). Nowhere in the job description did he list the elements that go along with my job title. I was very upset with this, sending examples of other companies from Monster.com to show the disparity. He created another one, but the damage was done.

    The disability consultant required me to sign a medical release form allowing access to all my medical records. This was disturbing to me, but I was not given a choice. Prior to anything happening, I went on short term disability.

    While on disability, my employer did not believe I was disabled even though my doctor is one of the foremost experts in the country and HR even recommended that I go on leave (I was a wreck). They again required me to sign a medical release form and set me up with an independent medical examiner (IME)

    He pulled all of my medical records from my general physician, my psychiatrist and even my gastrointerologist!! After meeting with me for 2 hours, the IME put together a 22 page report that detailed everything from devastating (and EXTREMELY PRIVATE) things that happened in my childhood to some poor decisions I made in my adulthood to STD's that I had (or worried that I had). Many of these comments were by themselves with no link or tie or need to be in the report whatsoever. He went on to say that I was definitely disabled and should in no way go back to work for my boss (good).

    But, he attempted to diagnose me and clearly had no clue about adult ADD. He referred that to my doctor who was a specialist. He discussed depression and personality disorders and other things. Fine. He said it was important to get a diagnosis and recommended psychological testing, past MMPI tests, etc.

    The disability coordinator required me to get these additional tests in order to get paid the incremental disability pay, even though my disability had been approved based on the IME's recommendation. I've sought treatment over 8 years confirming ADD (2 doctors).

    I feel so violated it isn't even funny. I talked to my doctor about things that I haven't opened up to any other doctor about. Things in my childhood that only a few people know about. There was a minor indiscretion I had (think I was drugged) and now my employer knows about it. It's like their Dr. made it a point to pull out all the negative facts, but excluded all the positive facts (like when things were going well with me).

    Can an employer really do this? I thought their ability to test an employee was limited, but because I accepted their additional STD benefits, does that mean they can legally do this? Isn't that really blackmail? My lawyer has said NOTHING. I actually had to point out to her that they were attempting to test AFTER the disability was approved.

    Please, any insight?

  4. #4
    Join Date
    May 2008
    Posts
    20

    Default Re: Mental Disability Discrimination

    In order to perform the essential functions of the job, my manager would need to change his management style. We attempted to list some accommodations to help that (i.e. don't overwhelm with negative feedback) to which my supervisor ignored. HR said, "he is unable to say anything nice about you because of the way he feels about you." HR then said changing a manager's style is not a reasonable accommodation. This manager has discriminated against me in terms of gender, too. He doesn't like women in the front lines. I filed a complaint, which of course came back in his favor (what are they going to say to me, "yes, he discriminates?"), so the guy is clearly retaliating. I had to do it because I saw him honing in on me like a fly on .... (LOL)! You know what I mean!

    My employer is using the wording exactly as you have noted. I am not asking for a new supervisor. There is only one in the org and thus, that would not be reasonable. I am asking to be reassigned to a vacant position. I have identified a few of them, which I believe I am qualified for. Many have been open for a long time. New challenges are my specialty anyway, and I would have many witnesses that would be able to attest to the fact that this would be an advantage to the company. I have been with them for 8 years and had 14 different managers. Through it all, I have always been considered a "significant contributor".

    Both my doctor and theirs have said that I cannot go back to work for him. If he refuses to acknowledge that I have a disability, then nothing we do is going to help the situation. However, training and helping him "learn" will only anger him more because he is very arrogant. In the meantime, his attacks will continue and I'm already close to being out the door. I wouldn't be able to withstand him going through a trial and error period. I have always worked 10-12+ hour days and taken on the most daunting jobs. My ADD + OCD type traits are a benefit to many managers (but I can be a pain, too, I know). I just want to work and with a little support I do very well. This is so horrible it's like my whole world is caving in on me. If I didn't love this company so much and didn't have so many $'s at stake, it wouldn't be so hard.

    Thanks much for taking the time to read and respond! It means a lot!! BTW, the right to sue was only through the DFEH. Nothing has happened with the EEOC yet.

  5. #5
    Join Date
    May 2008
    Posts
    20

    Default Re: Mental Disability Discrimination

    FYI, if I told you my faults, there would be no question as to my QUID status (although the EEOC has done wonders with that definition)!!!!

  6. #6
    Join Date
    Dec 2005
    Posts
    200

    Default Re: Mental Disability Discrimination

    It is not the administrative agencies such as EEOC that ultimately determine who is a QUID, it's the federal judiciary and it's not a secret that they think the ADA is interpreted too expansively.

    It's not your faults that determine whether you are qualified disability. It is your physical or mental condition and how it affects a major life activity or activities. And, that's determined on a case-by-case basis for most medical conditions.

    Sorry, case law is not on your side. How an employee is supervised does not determine whether s/he can perform the essential duties of a job. Of course, case law and EEOC assume that an employer can either control the work related behavior of its supervisors/managers or remove them from the job. Both doctors might be doing you are disservice by stating that you can't work for a particular individual. And, an employer is only required to consider a QUID for reassignment to a vacant position for which s/he qualifies if the "employee . . . , because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation . . ."

    How do you know your complaint is before the EEOC and nothing has happened yet? Are you/your attorney sure that requesting a notice of right to sue from DFEH will not prompt EEOC to also issue you a notice of right to sue if it has your matter?

  7. #7
    Join Date
    May 2008
    Posts
    20

    Default Re: Mental Disability Discrimination

    As far as the EEOC and DFEH, I know nothing. That's why I'm here. My lawyer is only fighting to get my job back and is not involving either organization. If my employer is discriminating and trying to get rid of me, then getting my job back is only going to prolong my suffering. She says, "one step at a time", but this means nothing to me. I will go back to work in the same condition as when I left.

    I am pretty sure I qualify as QUID. ADD/ADHD is a recognized disability by the ADA (although as you say, the federal judiciary may frown on this). I am an ADD poster child. My communication, social and concentration skills limit my ability to work in a very broad range of jobs (any that require me to talk or concentrate). For those jobs that I don't have to talk or concentrate, I would go insane from the lack of challenge (repetition/boredom) and become OCD/borderline psychotic. I can perform the essential functions of my job with or without accommodation. I cannot, however, perform my job when under highly stressful, untenable conditions, which is the case with my current manager.

  8. #8
    Join Date
    Dec 2005
    Posts
    200

    Default Re: Mental Disability Discrimination

    You need to talk with your lawyer and determine her strategy, including involving DFEH and/or EEOC, if she hasn't already involved them.

    Changing your supervisor is not a reasonable accommodation required by the ADA. Your employer probably knows that and is acting accordingly.

    I don't think that you should assume that an unsatisfactory rating from your current supervisor will prevent you from finding another job with your company. You can point to your recent bonus, your prior good ratings and satisfactory relationships with other supervisors. You can honestly say that your supervisor's management style is toxic to your health and everybody realizes that a new supervisor/job change may be the best solution. Will any of the supervisors/managers with whom you worked previously consider giving you a job?

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