About 8 years ago when i was 13, i had spine surgery which placed a steel rod at the base of my spine. After the surgery, my spine doctor informed me that the surgery had went well and that i was on the road to recovery. About a year later, he cleared me to basically do whatever i wanted meaning i had no limitations in terms of what i could and couldn't do.
Im 21 now and recently applied to become a bagger for a local grocery store in my area. I turned in all of my paperwork and was going to be hired. The final step before actually starting the job was to take a medical test at a designated medical place they used for hiring which included an x ray. Thats when they saw the steel rod in my back. I informed them before hand that i had surgery so after the x ray was taken, the pulled me aside and had me do a series of tests to make sure everything was ok such as reaching for my toes and things like that. After the exam, the doctor i spoke to informed me that everything looked ok. So i head on my way expecting to be hired within the next few days.
A few days pass with no word so i call back to the grocery store and they informed me that due to my limitations they couldn't hire me for the position. I hanged up not knowing how to take the call.
My spine doctor who i have seen for a very long time has informed me over the years many times that i had no limitations as to what i could do. Hell i asked him if i could join the marines and he said that i could since my back was fine.
I called back the next day saying to the grocery store that my doctor has cleared me for the past 8 years to work in whatever capacity i could without limitation but they said they could only go by what their own doctor said. I called the medical place i went to wanting to speak to the doctor who wrote i had limitations when in fact i didnt. I spoke with him and he informed me that he wouldnt allow me to carry anything more than 50 lbs worth. I told him that my own spine specialist doctor said i had no limitations but, he said that in his professional opinion, my back was perfectly fine but he couldnt write that i had no limitations.
Now my question is how is this legal? How is this even right? I mean my own doctor who i have known for many years says i could do whatever i wanted with no limitation but, this one doctor wouldnt clear me to work for a freaking bagger position. I certainly dont understand it. My father is pushing to me sue but, im not so sure i even have a case at all, so i figured i would ask. Is there anything I can do here? Thanks
2 Answers from Attorneys
Unfortunately, you probably have no 'legal claim' for this. You clearly state and argue to the employer that you are not 'disabled' and have medical reports stating you are not disabled or limited. That takes you out of the class of people protected as 'disabled' under ADA [Americans with Disabilities Act]. If you're not disabled under the law's definitions, you can't sue for 'disability' discrimination.
What you face is an employer's right to bar from employment anyone that could pose a Workers Comp risk of injury due to job demands and requirements. The employer is entitled to rely on independent medical opinion for that judgment. You can argue all you like, but their doctor is entitled to his opinion, and the employer to rely on it. They did. A different employer might decide differently.
In reality, your own doctor probably overstated your condition and lack of risk. Any medical device implanted carries some potential for underlying failure, risk of 'weakness' or susceptibility to injury. This company doctor recognized that, and you should too, concerning severe strain and stress on your back.
With all due respect, I think Mr. Nelson strongly overstates the likeliness that you do not have a claim. First, in California, the Fair Employment and Housing Act (FEHA), not the ADA, governs disability discrimination. Second, both the FEHA and the ADA protect not only people with ďactualĒ disabilities, but also those who are perceived as disabled and those with a history of being disabled. There are arguments to be made that you fall into either or both of these categories and are therefore protected by these laws.
I am not saying that you absolutely have a case, that an attorney would take your case, or that you would win in court. However, I also donít think it is fair to leave you with the impression that you simply donít have a case and thatís the end of the analysis. I suggest that you contact an employment attorney and/or the Department of Fair Employment and Housing (DFEH) for an individualized assessment of your legal rights. Please feel free to contact my office by phone at (213) 536-4236, by email at [email protected], or you can fill out an online questionnaire on our website, www.sarnofflaw.com.