American Firm to pay $100,000 to Ashok Pai, an Indian-origin employee over Discrimination Lawsuit

New Delhi, 4th July 2018

Here is an important case law from USA wherein an American firm will end up paying $100,000 (One lac US Dollars) to settle a discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of an Indian-origin employee, the agency said on July 2. 

Federal contractor Camber Corporation was accused of violating federal law when it denied a transfer to employee Mr. Ashok Pai based on his son's medical condition and then fired him.  Such alleged behaviour violates the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), the EEOC said in its suit. Besides a $100,000 award for lost wages, the two-year decree entered by U.S. District Court Judge Anthony J. Trenga to resolve the case includes injunctive relief to prevent disability and age discrimination from occurring at the company in the future.

According to the EEOC, Pai's son sustained serious injuries in a car accident as a child, due to which he has been disabled for more than 25 years. Pai sought a transfer to work nearer to where his son lived and requested leave to assist with his care. However, after the management learned that Pai was seeking a transfer to take care of his son, Camber classified him as "resigned," began processing termination paperwork and ultimately fired him for pretextual reasons, the EEOC said. Pai, who was then in his mid-60s, was subsequently replaced by someone over 20 years younger than him.

Camber Corporation is headquartered in Huntsville, Ala. The discrimination against Pai took place in Falls Church, Va., where he worked. The EEOC filed its suit in U.S. District Court for the Eastern District of Virginia after first attempting to reach a pre-litigation settlement through its conciliation process.

"When employers violate the law, the EEOC will hold them accountable. We are pleased that the parties were able to reach a resolution to better protect the rights of employees under federal law," EEOC regional attorney Debra M. Lawrence said in a statement.

"The ADA not only prohibits employers from discriminating against people with disabilities, it also bans discrimination against employees and applicants based on their association with a person with a disability - for good reasons," Washington Field Office Acting Director Mindy Weinstein said. "Mr. Pai simply asked for a transfer to help deal with his son's severe disability, and the company made a bad situation worse by punishing him for trying to do the right thing and showing age bias at the same time. The EEOC is here to fight for the rights of people like Ashok Pai."

Other Media Reports:

1. NDTV 

2. Little India dot com

3. The Telegraph

Medical Board declares a teacher with 30% disability as medically unfit; denied Govt. job

Dear Colleagues,

We come across such cases pretty often as a result of biases & negative attitudes towards persons with disabilities & total lack of awareness about the legal provisions. This case is unique since the government or the medical board couldn't have declared the candidate as medically unfit for the post, even if she was visually disabled (exceeding 40% disability) since the post is also identified for persons with disabilities (visual impairment).

The visiting teacher has a 30% certified visual disability thus she is not a person with disability in terms of the Disabilities Act of 1995. The Act mandates a person with 40% disabilities to be eligible for the benefits / reservation available for persons with disabilities. 

In both cases whether the candidate has a visual disability of 40% or not, she couldn't have been rejected on the grounds of disability. The medical boards are woefully unaware of the enabling provisions of the disabilities Act and they mechanically declare candidates medical fit or unfit without even going in to the job requirements.

Here is the news from Times of India

Denied govt job, relief in sight for 25-yr-old

Ambika Pandit

New Delhi



Deemed Medically Unfit, Woman Secures Review

Her dream of becoming a teacher landed in jeopardy after the medical board of a government hospital declared her “medically unfit“. However, the Public Grievances Commission (PGC) and education department came to the rescue of the 25-year-old and sought a review of the medical report. She is likely to get the Delhi government school job soon.

The medical board rejected her due to a vision deficiency -absent left eye. The job aspirant has, however, been working as a guest teacher in a government school. The PGC and education department said that she has just about 30% sight deficiency in one eye. Moreover, the job for which she was selected was non-technical.

The woman has now been re-examined by a special medical board and her appointment by the state government is awaited. The effort by the education department and the PGC has opened a window of hope for others like her who may find themselves in the same position. Her father approached the PGC on May 24 after the joining order to the post of assistant teacher (primary) was not issued to her by the education department.

The first hearing was held by PGC in June. The education department filed a status report stating that the “candidate was declared medically unfit (absent left eye) by Babu Jagjivan Ram Hospital in April, 2016. At present, appointment to the candidate cannot be given by the directorate of education.“

The woman gave a submission that she has 30% sight deficiency since birth and, as per rules, she is not entitled to the handicap certificate. She added that she had finished her entire education and passed examinations without any hindrances.As such, she should not be prevented from her entry into government service as school teacher. She also informed that she is working as a guest teacher with Delhi government and performing her duties perfectly.

Hearing the matter, PGC member N Dilip Kumar observed: “The complainant can study and attend classes and can do all work perfectly . Her eyesight deficiency is in no way affecting her teaching work. As such, relaxation should be given in the rule in respect of complainant.“

The commission advised the director of education to personally look into the matter and ensure that suitable amendment is made to the rules to benefit not only the complainant but also similarly placed candidates. On July 20, the directorate of education informed the commission that it had written to the chairman of the Babu Jagjivan Ram Memorial hospital medical board stating that the candidate has requested for a review of the medical examination report.

“Chapter XIII states that if a candidate is declared medically unfit on account of visual acuity, an appeal should be dealt with by a special medical board, which should include three ophthalmologists. Ordinarily , the findings of the special medical board should be considered as final, but a second appeal shall be permissible in doubtful cases and under very special circumstances,“ it was observed.

The hospital examined her again and has submitted her fresh reports to the education department. The family now awaits the appointment letter that will set their daughter on the road to empowerment.

Source: Times of India 

Mutiple hurdles for disabled wanting to enter medicine

Disabled neglected in recruitment of doctors: Rights activists

Chennai, September 02, 2013

Applications for direct recruitment in Tamil Nadu this year have no reference to three per cent quota — a mandate stipulated by the health of the Persons with Disabilities Act, 1995.

The health of the Persons with Disability Act, 1995, in its implementation, is in need of resuscitation. Most in distress is the non-implementation of reservation quota guaranteed by the Act in the medical services sector.

Source: The Hindu

Section 33 of the Act mandates a three per cent reservation for the disabled in all government jobs. While two categories of disabled persons that usually can take advantage of this reservation are automatically excluded from joining medical services - visual and hearing impaired persons - those with disabilities in the lower limbs are allowed to qualify as medical professionals.

Technically, they should be allotted the three percent seats while the State hires doctors for its medical services.

All this is fine, in theory. While a Government Order in 2005 identified 117 posts that were reserved for the disabled; in 2013, an additional 170 posts were identified under the Tamil Nadu Medical Service, Tamil Nadu Subordinate Medical Service, Tamil Nadu Public Health Service and Tamil Nadu Public Health Subordinate Service. These include the posts of Assistant Surgeon in the specialties of physiology, radiology, radiotherapy, Siddha, Ayurveda, Unani, speech therapist, dietician, and health officer. However, implementation is quite another issue.

Earlier this year, the Differently Abled Welfare Department Secretary wrote to the Tamil Nadu Medical Services Recruitment Board (MSRB), making these points. He was writing to point out that despite these orders, MSRB’s communication of March 2013 calling for applications for direct recruitment had no reference to the disability reservation quota.

“The MSRB specifies even the percentage of disability, and the posts reserved on its website, but does it become invisible to the Board when it comes to actual recruitment?” asks S. Namburajan, State secretary, Tamil Nadu for the Rights of all Types of Differently Able and Caregivers (TARATDAC).

TARATDAC has written to the Chief Minister to intervene in the issue and ensure that the three percent rule of reservation is implemented in the medical services recruitment in Tamil Nadu.

It has also asked for a status report on the actual percentage of disabled persons hired in medical services recruitment in the State.

But reservation is just one aspect that is being raised by differently abled medical practitioners. There is also a further aspect of discrimination that doctors are alleging. A disabled doctor who applies for the reserved posts must appear in front of a medical board which will certify that the handicap will not affect his or her performance on the job, in order to be appointed.

A senior government medical doctor who is disabled says, on condition of anonymity, “Already, only those with lower limb disabilities (up to a certain percentage) are allowed to even take up the MBBS course. To gain admission, they have to appear in front of a medical board which will certify the candidate based on disability norms specified by the Medical Council of India. Only if this certificate is given can a student even take up medicine.”

He argues that once they undergo this test, they should only be judged on their professional skills and not be subjected to further “humiliation” by appearing in front of another medical board to certify physical fitness with reference to disability, over and above what other candidates are subject to.

“The government must do away with the second appearance before the medical board for disabled persons; it is quite unnecessary. It was tough when I was forced to go through the process,” says a lady doctor serving in the districts currently.

Health officials said that the department would definitely examine the request, and try to work towards a discrimination-free recruitment process.

Source: The Hindu

The World "Handicapped" is banned in Haryana

Dear Colleagues,

In the recent past Govt. of Haryana  initiated a network of social infrastructure in every district that includes old age homes, special accessible school infrastructure for four major disabilities to include persons with disabilities in the mainstream. Several quarters who advocated inclusion in all spheres of life including education etc were quite critical of this step while the State Government's decision was more in line with providing better infrastructure in specialized and state of the art institutions which could become pivotal institutions to empower the disabled people to inclusion. In addition to this, other educational institutions are also being made inclusive.

Now in yet another positive step towards a rights based and inclusive society where marginalized segments are accorded full respect and dignity, it has come out with an official announcement banning the usage of the word "Handicapped" in the State since it violated and undermined the dignity of persons with disabilities. Not only  that, it went on to even discourage the world "differently abled" since this focuses on differential dimension hence not inclusive. This is a very positive step and the officials responsible for this remarkable step must be congratulated. 

The larger issue is now to implement this and I am sure State had already done its bit to a good extent by highlighting this in the media and through various means so that the state machinery at all levels understand the "persons first approach" or People-First Language.

As per Wiktionary the word  "Handicap" means-  An allowance of a certain amount of time or distance in starting, granted in a race (or other contest of skill) to the competitor possessing disadvantages; or an additional weight or other hindrance imposed upon the one possessing advantages, in order to equalize, as much as possible, the chances of success.  Eg. 

• The older boy won, even though his opponent had been granted a handicap of five meters.
• A handicap in chess often involves removal of the queen's rook.

It also means a race, for horses or men, or any contest of agility, strength, or skill, in which there is an allowance of time, distance, weight, or other advantage, to equalize the chances of the competitors.

Thus,  person may have a disability  and not handicaps and it is derogatory to refer to an individual with the a noun "handicapped".  This announcement is in line with Article 8 of the UN Convention on the Rights of Persons with Disabilities which is reproduced below:

Article 8 - Awareness-raising

1. States Parties undertake to adopt immediate, effective and appropriate measures:

1. To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities;
2. To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life;
3. To promote awareness of the capabilities and contributions of persons with disabilities.

Measures to this end include:

1. Initiating and maintaining effective public awareness campaigns designed:
   1. To nurture receptiveness to the rights of persons with disabilities;
   2. To promote positive perceptions and greater social awareness towards persons with disabilities;
   3. To promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market;
2. Fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities;
3. Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention;
4. Promoting awareness-training programmes regarding persons with disabilities and the rights of persons with disabilities.

Here is the news coverage of the announcement in Indian Express:

Haryana bans use of word 'handicapped'

Wednesday, April 18, 2012, 

Chandigarh: Haryana government has banned the use of expression 'handicapped' saying it violates and undermines the dignity of persons with disability. 

An official spokesman said the expression 'handicapped' was against the spirit of the Constitution, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and, the United Nations Convention on the Rights of Persons with Disabilities to which India was also a state party. 

He said the use of such other expressions as 'differently abled' would also be discouraged as such an expression harps more on the differentiality dimension whereas there was a need to promote equality dimension. 

Wherever such description was both necessary and relevant, such persons would be described as persons with disability or as persons with blindness, persons with speech and hearing impairment or persons with locomotor disability. 

He said national institutes like National Institute for the Visually Handicapped and National Institute for Hearing Handicapped should also be renamed appropriately. 

PTI 

Thalassaemic finally gets job he was denied

Dear Friends,

I am surprised as to why each time the Prime Minister's Office (PMO) has to intervene and take a credit to give the persons living with disabling conditions their basic dues such a government job at their own merit?

Why can't we have ministries and babus using their brains to implement laws and rules themselves and stop discriminating on the grounds of disabilities. This is ridiculous that for each right, a person with disability in India has to face discrimination and then he is forced to knock the doors of judiciary or some political leader. Are they doing a favour to persons with disabilities by agreeing to give them a job which the person has otherwise earned through his own merit?

So much so, that many government departments have started illegally adjusting those persons with disabilities in the disability quota seats who have passed the recruitment exams on their own in general merit. This amounts to reducing the persons with disabilities to maximum 3% rather than minimum 3% reserved seats as mandated by the Act of 1995! Is the Government listening?

Thalassaemic finally gets job he was denied

By Vikas Kahol in Chandigarh

AFTER over a year of blood, sweat and tears, Sukhsohit Singh’s efforts have borne fruit. The first thalassaemic in the country to clear the civil services examination but declared unfit because of the rare genetic disorder, he is finally set to be inducted into the Indian Defence Accounts Services ( Group A).

An observation by the medical board at Vardhman Mahavir Medical College and Safdarjung Hospital in New Delhi had jeopardised Sukhsohit’s career. The board had declared him “ unfit for all services” as he suffers from thalassaemia major. M AIL T ODAY highlighted the issue in its June 13 issue under the headline ‘ Thalassaemic man denied a job that was rightfully his’. On Friday, a beaming Sukhsohit stated that he received an official communication from the department of personnel and training ( DoPT) informing him about the assignment. The formal offer of appointment would be sent by the defence ministry, the cadre- controlling authority. The DoPT has also requested the ministry to allow Sukhsohit to join by September 13 and exempt him from attending the foundation course.

“I am happy that my dream is fulfilled. I am also thankful to the government authorities, including the Prime Minister who intervened to help me bag the civil servant’s job. The media’s effort, too, was commendable as it made out a strong case for me,” he said.

Sukhsohit had listed three preferences: The Indian Defence Accounts Services, Indian Railway Accounts Services and Indian Railway Personnel Services. All the three come under Group A civil services. “ I had deliberately opted for non- police services that were commensurate with my rank.

Sukhsohit, who lives in Panchkula near Chandigarh, was diagnosed with thalassaemia major in 1985 when he was only one and a half years old. The doctors advised his parents — his father Wing Commander ( retired) M. S. Bawa and mother Gursharan Kaur — to take good care of their son and assured them that he would be able to lead a “ normal” life. Regular medication and blood transfusions were their prescriptions for his good health.

Sukhsohit braved the disease for about 25 years and did not face any mental or physical disorder. Not only was he regular at school, his attendance was exceptionally high. He topped in the 10+ 2 examination in the Chandigarh region Kendriya Vidyalayas. After completing B Com ( Hons) in Business Economics from Panjab University, he secured the first rank in the income tax examination.

His disease did not deter him from securing the first position in MA in public administration, and he qualified for the UGC’s junior research fellowship ( JRF). Currently, Sukhsohit is pursuing PhD in public administration.

He said clearing the civil services exam had been his sole dream and he opted for non- technical services.

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