|
TRENTON
– Acting Attorney General Paula T.
Dow and Division on Civil Rights Director
Chinh Q. Le announced today that the Division
has issued a Finding of Probable Cause against
the Board of Education in Winslow Township,
Camden County, for discharging a woman from
her job as Head Care Giver in a before-and-after-school
program because she was unable to lift more
than five pounds.
Joanne
M. DeMitri, of Monroe Township, Gloucester
County, worked as Head Care Giver in the
before-and-after-school program at Winslow
Township School #3 for about four years
starting in 2003. She returned from medical
leave for a ventral hernia in 2007 with
a physician’s order not to lift more
than five pounds. She was then dismissed,
allegedly because her inability to lift
more than five pounds made her unable to
perform essential job functions.
However,
the Division found probable cause that DeMitri
was discriminated against after interviews
with each of seven Head Care Givers employed
by the district – care givers with
experience levels ranging from two to 16
years – showed that the ability to
lift more than five pounds is not essential
to the work.
”The
law clearly requires employers to provide
reasonable accommodations for persons with
disabilities,” said Division on Civil
Rights Director Chinh Q. Le. “In this
instance, the employer discharged its employee
from a managerial position even though it
appears her disability may not require any
accommodation, and that she is fully capable
of performing the essential functions of
her job. Employees with disabilities have
a right to be treated with dignity, fairness
and equality, and we are committed to ensuring
that employers meet that standard.”
As Head Care Giver in the before-and-after
school program, DeMitri supervised five
Care Givers in carrying out education and
recreation programs for students from ages
three to eight. DeMitri also held –
and continues to hold – a second job
with the Winslow school district as a teaching
assistant.
In
August 2007, DeMitri was discharged from
her Head Care Giver position because, the
school board told Division investigators,
a Head Care Giver must be able to lift and
carry children when necessary, as well as
lift and carry materials and snacks weighing
more than five pounds.
However,
interviews with other Head Care Givers employed
by the district indicated that, when the
lifting of children, boxes, supplies, games,
milk cartons and other materials is required,
such tasks are typically carried out by
staff care givers under their supervision.
Only two of the seven Head Care Givers reported
ever having lifted children or carried boxes
or supplies. Based on interviews with all
of the school district’s Head Care
Givers, the Division’s investigation
showed that those two made the choice to
handle the lifting, but could just as readily
have assigned it to other staffers, as most
of the Head Care Givers did.
A Finding of Probable Cause does not resolve
a civil rights complaint. Rather, it means
the state has concluded its preliminary
investigation and determined there is sufficient
evidence to support a reasonable suspicion
the New Jersey Law Against Discrimination
(LAD) has been violated.
Investigation
of the DeMitri matter was conducted by Division
on Civil Rights Investigator Maurice Sykes
and supervised by John Beauchamp, manager
of the Division’s Camden office. Division
on Civil Rights Staff Attorney Estelle Bronstein
provided assistance in preparing the Finding
of Probable Cause.
The Law Against Discrimination (LAD) provides
that each Respondent found to have committed
a violation is subject to a penalty of up
to $10,000, provided he or she has not been
convicted of a previous violation within
the past five years. The LAD also provides
for other remedies, including compensatory
damages and injunctive relief, such as changes
in the employer's policies and management/staff
training.
Now
that the Division has issued a Finding of
Probable Cause, the case will be referred
for a process known as Conciliation. If
Conciliation is not successful, the matter
will be referred to an Administrative Law
Judge for a hearing on the merits, which
is a non-jury trial. The Administrative
Law Judge will then issue a written Initial
Decision.
### |
