Bankruptcy Code Prohibits Employer Retaliation

Given the the numbers of personal bankruptcy filings in America, it is likely that a greater number of U.S. workers face the possibility of losing their jobs because of an employer’s bias against people who resort to bankruptcy protection. 11 U.S.C. §525(b) of the Federal Bankruptcy Code states that “no private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is a debtor under the Bankruptcy Act solely because such debtor is or has been a debtor under the Bankruptcy Act.” In many instances, employer retaliation may be based on a fear or belief that anyone who files bankruptcy is not trustworthy or financially responsible. In reality, the majority of people who file bankruptcy do it for reasons that were beyond their control.

The National Association of Consumer Bankruptcy Attorneys (NACBA) published a survey of bankruptcy lawyers which revealed that in the vast majority of cases, consumers are forced into bankruptcy by major and unforeseen expenses (joblessness at 39.6 percent and medical expenses/other medical costs at 33 percent) or combinations of factors (mortgage/home-related debt at 64 percent and increased credit card interest rates at 41.1 percent). Fewer than one in 10 cases (8.1 percent) handled by bankruptcy attorneys were linked to “discretionary spending” habits. According to the American Bankruptcy institute, U.S. consumer bankruptcy filings totaled 675,351 nationwide during the first six months of 2009. This represents a 36.5 percent increase over the 494,610 total consumer filings during the same period a year ago.

The law is clear, employers may not fire or otherwise retaliate against an employee because they filed bankruptcy.  The effect of an unwarranted termination on an employee who is already struggling under the weight of overwhelming debt is catastrophic. Unfortunately, many employers are not even aware of the existence of this law. If you know someone going through bankruptcy, make sure they are awate that their job cannot be legally taken from them because they seek bankruptcy protection. The Gomez Law Group represents and advises individuals affected by this rule.

The Americans with Disabilities Act

The ADA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important ADA definitions to know who is protected by the law and what constitutes illegal discrimination:

INDIVIDUAL WITH A DISABILITY
An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working.

QUALIFIED INDIVIDUAL WITH A DISABILITY
A qualified employee or applicant with a disability is someone who satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.

REASONABLE ACCOMMODATION
Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids.

UNDUE HARDSHIP
An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer’s business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business’ size, financial resources, and the nature and structure of its operation.

PROHIBITED INQUIRIES AND EXAMINATIONS
Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.

National Origin Discrimination

It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.

A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to assure that employees hired are legally authorized to work in the U.S. However, an employer who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign, may violate both Title VII and IRCA; verification must be obtained from all applicants and employees. Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.