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The Salvation Army is a religious organization that has been feeding the hungry and ministering to the needy for more than 100 years. County sheriffs' departments serve the public and uphold the law. These are among the last places one might expect to find workplace discrimination. Yet two recent lawsuits claim that employees at the Salvation Army's office in Spokane, Wash., and at the sheriff's department in Morris County, N.J., were discriminated against - not because of race, creed or gender but because they had hepatitis C. John Cicchetti began working as a corrections officer for the Morris County Sheriff's Office in 1994. According to his attorney, Vincent Paragano, Cicchetti's work environment changed in 1998, when it became known that he had chronic hepatitis C. Paragano says Cicchetti was harassed by two other officers, who would spray disinfectant on his desk, spit mouthwash in his locker, hang dummies of him in effigy, call him names such as "Hep Boy" and refuse to touch things he had handled. "John Cicchetti's a good guy," Paragano says. "This should never have happened to him. This is outright bigoted. He just got hammered by these guys." The attorney says that Cicchetti did what an employee should do when harassed by coworkers - he went to his supervisor. "He submitted a 13-page, single-spaced, typed memo of the torture he got put through by these guys," Paragano says. "He sent it to his supervisor, and the supervisor said it was horrible and went to the upper boss. The upper boss said he sat down with the two guys that were tormenting him, and they just agreed to be nicer. And that was the extent of what they did." Another action by the department actually made matters worse, according to Paragano. In an attempt to educate officers about the disease, the department showed a video about hepatitis C. The attorney says the video made hepatitis C seem much more easily spread than it actually is. "What it did was, it scared the living crap out of the rest of the officers," Paragano says. "What they put this guy through, nobody should have to go through," Paragano says. "They basically treated the guy like a leper and made his life a living hell, and of course, here he is wondering - God forbid - if he gets shot or gets stabbed and he's bleeding, will any of his compatriots come by to help him?" Cicchetti stopped working at the sheriff's office in 2000 and officially resigned in 2002 when he filed the lawsuit claiming discrimination under the state's Law Against Discrimination. The case has moved through the appeals courts and finally went to the New Jersey Supreme Court in December. Paragano was awaiting a decision at the time this article went to press. The EEOC The decision whether to file suit in a federal or state court depends largely on which state you're in, says Jim Sacher, regional attorney for the Equal Employment Opportunity Commission's Houston field office. "Workers want to remember that they're very often protected by both the federal law, the Americans with Disabilities Act, and also by state laws," says Sacher, who received his law degree from Rutgers and has been with the EEOC for 19 years. The degree of protection against discrimination varies from state to state. Sacher explains that the ADA does not list specific conditions that are considered disabilities, but some state disability laws do. "For example, in the state of California, the state disability law lists conditions which are presumptively disabilities," he says. Generally speaking, a person can be considered disabled under the ADA if they have a condition that substantially limits a major life activity, if they have had such a condition in the past, or if they are considered disabled by their employer. "The word disability is bandied around a lot," Sacher says. "It means a lot of different things in different contexts. So to meet the definition of disability under the ADA is different than meeting the definition for disability to get short-term disability from a company or to get long-term disability from a company or to get federal disability benefits administered by the Social Security Administration." He says that an employee is not required to inform the company about a chronic condition such as hepatitis B or C, but he notes that the employer is not obligated to make any accommodations, such as a flexible schedule or time off for doctors' appointments, if they do not know about the condition. Sacher says that someone who believes they are being discriminated against at work can come and speak to an EEOC investigator. The EEOC's services are free of charge. "We have 50 offices around the country, and there are investigators in all of them," Sacher says. "It's important for people to understand that even if the investigator discourages them from filing a charge, if they believe they want to pursue this in court, they have to file a charge. The charge will be taken even if the investigator personally thinks that it may not be a strong case." He says that the charge can be filed either with the EEOC or with an equivalent state or local agency. Sacher says there is a time limit to filing a claim - in some states 180 days after the last action that the employee considers discriminatory, but longer in other states. However, he advises against waiting too long "because evidence disappears and memories fade." After the employee files the charge, the EEOC investigator will ask if they wish to try to reach a settlement before the investigation begins. "We will try to do that in most cases, if the company is willing also, by using a mediator," Sacher says. "If the case seems to be a very, very strong case to us, if it looks like there is a patent law violation, we really discourage mediation because we want to get to the bottom of that. We want the company to have a chance to explain why they took the action they did." Defining disability Lawsuits, however, do not always result in explanations. In 2006, former Salvation Army employee Donna Flint filed a federal lawsuit against the charity organization, claiming that her rights had been violated under the Family Medical Leave Act, the ADA and medical privacy laws. In the lawsuit, Flint alleged that after she informed her supervisor she had hepatitis C, her working conditions deteriorated, and she was the victim of discrimination. She claimed that she had been passed over for promotion because of her illness and that her supervisor at the Salvation Army's Spokane office had told other employees about her condition. The Salvation Army formally denied the charges. Flint's attorney, Donna Beatty, says Flint had to file suit in federal court because she worked for a nonprofit organization, and Washington's anti-discrimination law applies only to for-profit corporations. Beatty, who earned her law degree from the University of Washington, has been in private practice since 2000. She says Flint and the Salvation Army reached a confidential settlement agreement, but the organization has not admitted to any wrongdoing. Although the conclusion of the case was satisfactory for her client, the attorney is not pleased with the current state of disability law. Beatty says that court decisions have "totally emasculated" the protections given to people under the ADA. "It's horrendous, what's happening," she says. "I think the purpose of the ADA is certainly being ignored." One reason for the weakened protection, she says, is the requirement that a condition has to substantially limit a major life activity. "I am not sure, given recent interpretations of the ADA by federal courts, that most people with hepatitis C would have protection under the ADA. It's very concerning to me." One of the country's leading experts in anti-discrimination and disability law agrees. "I think (court decisions) have weakened people's rights under the ADA," says Samuel Bagenstos, associate dean for research and faculty development and professor of law at Washington University School of Law in St. Louis. "The Supreme Court's first decision about what a disability is under the ADA was a case involving a person with asymptomatic HIV disease, and the court there said that it was a disability even though there were no significant current symptoms. But ever since that decision, the Supreme Court's decisions have been narrowing the definition of disability." Bagenstos graduated at the top of his class from Harvard Law School in 1993. After serving a year as a clerk for a federal circuit court, he went to work as an attorney in the Civil Rights Division of the U.S. Department of Justice. "I started working on ADA cases at the Department of Justice when it was a new statute," he says. "We were kind of creating the law under the statute with the early litigation." He represented Mario Echazabal, who had hepatitis C, in the landmark case Chevron v. Echazabal. Echazabal had worked for maintenance contractors in a Chevron refinery for 20 years, Bagenstos says, when he applied for a higher-paying job with Chevron and was turned down after a physical found he had hepatitis C. "At that point, they said it wasn't safe for him to work there because there are chemicals in the atmosphere," Bagenstos says. Echazabal sued, saying he, not the company, should decide whether it was safe to continue working there. Bagenstos argued the case before the U.S. Supreme Court. "What the court said was, no - that if there is a significant risk of harm to him, the employer can refuse to hire him into this position. But then the case went back down to the lower courts on the question of whether it was in fact safe, and the 9th Circuit said that the evidence was sufficient to show that it was safe for him to work at the oil refinery." According to Bagenstos, federal judges reject many discrimination cases in the summary judgment stage before they get to trial. "The statistics on the success of ADA claims in employment are really sobering," he says. "Plaintiffs who sue under the ADA in the employment context are less successful than any other class of litigants in the federal courts except one, and that's prisoners who sue to challenge their conditions of confinement." The law professor explains that plaintiffs with chronic illnesses must first prove that they have a disability as defined in the statute and then prove that the employer failed to provide a reasonable accommodation for their disability. "There have been a ton of cases in both the Supreme Court and in the lower federal courts about what constitutes a disability for purposes of the ADA," he says. "The courts have tended to be very parsimonious in reading the ADA disability definition. In particular, if an individual's condition can be controlled by medication - if the symptoms can be controlled - it's significantly less likely that that condition will be held to be a disability." The requirement that a disability limit a major life activity is stringent, according to Bagenstos. "In that atmosphere, some people with hepatitis will be able to successfully prove that they have a disability, but not all will," he says. He adds that courts have "quite narrowly" defined what constitutes being regarded by one's employer as disabled, the other prong for disability under the ADA. "In states like California, Massachusetts and New York, the state anti-discrimination laws protect people with chronic illness against discrimination more broadly than does the ADA," he says. Bagenstos says that recent court decisions concerning the ADA do not reflect the intent of the authors of the legislation. "There's a bill pending in Congress that's sponsored by some of the folks who sponsored the original ADA that would overturn a lot of these judicial decisions," he says. "Overall, the trend is very much in a direction that supporters of the original ADA wouldn't have envisioned."
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