Company Refused to Permit Disabled Worker to 'Bump' in a Layoff, Federal Agency Charges
ATLANTA - GAF Materials Corporation, a roofing materials manufacturer headquartered in Wayne, N.J., unlawfully terminated a disabled worker from its Savannah facility when it refused to allow him to exercise his seniority rights to "bump" junior employees, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed recently.
According to the EEOC's lawsuit, GAF's contract with the United Steelworkers Union included a provision that allowed senior employees to remain employed by "bumping" less senior employees in any layoff situation. Bumping refers to a senior employee removing a less senior employee from a position and assuming the position for himself. It is a common practice in unionized settings, and many times is allowed where no layoff is pending. For example, a more senior worker may want to move to the day shift and bumps a less senior worker out of the job.
Irvin Carter, who had lost his right hand in an accident at the facility nine years earlier, was denied the right to bump junior employees when the company performed a reduction in force in 2012. According to the EEOC, the reason was Carter's disability and/or his record of disability. The lawsuit alleges that GAF refused to permit Carter to bump into other positions based on an 11-pound lifting restriction contained in Carter's nine-year-old medical evaluation. The EEOC said that at the time of the layoff, Carter's lifting restriction had been increased to 90 pounds, and he would have been able to perform the jobs which only had a 50-pound lifting requirement.
Because Carter was told that he couldn't perform any jobs for which he had bumping rights, he lost his job, the EEOC said.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from making employment decisions based on a disability, perceived disability or record of a disability. The EEOC filed suit in U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking back pay and compensatory and punitive damages for Carter. The lawsuit also seeks injunctive relief to stop and prevent any future discrimination.
"Companies should not rely on severely outdated information to take adverse actions against employees with disabilities," said Robert Dawkins, regional attorney for the EEOC's Atlanta District Office. "Instead, the employer must take into account the actual job duties and the employee's present ability to perform the job."
According to Bernice Williams Kimbrough, the EEOC director in Atlanta, "GAF simply decided, on its own, that Mr. Carter could not do the jobs without consulting with him or his physicians. The result was that a 16-year employee lost his employment because of lifting requirements which were well within his abilities."
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency's web site at www.eeoc.gov.