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Jim Kenyon: Disabled worker forced out of the market

  • Jim Kenyon. Copyright (c) Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Valley News Columnist
Published: 5/1/2021 9:57:06 PM
Modified: 5/1/2021 9:57:03 PM

After two interviews and a couple hours of job shadowing, Beth Baras was offered a full-time position behind the deli counter at Woodstock Farmers’ Market, an upscale grocery on the west side of town (not the open-air farmstand-fest the name implies.)

Five days later, Woodstock Farmers’ Market, which began as a family-owned business in 1992, notified Baras via email that it was withdrawing the job offer.

What changed?

For starters, Baras, who was in her early 60s at the time, disclosed that she had a disability. In the same email to the market’s human resources manager before beginning her new job, which was to pay $12.50 an hour, Baras sought two accommodations:

Could she bring an ice pack to work and wear it under her clothing periodically throughout the day? Also, could she have a 10-minute break when business was slow during her shift to stretch and put her feet up?

For years, Baras has suffered from lower back pain, which doctors diagnosed as osteoarthritis. In 2014, she sustained a shoulder injury that required surgery and continues to limit her range of motion. But she can manage her conditions with physical therapy and exercise.

Baras, now 65, rents a small house 5 miles from Main Street in Norwich. At the time she applied at Woodstock Farmers’ Market in early 2018, she had just finished a seasonal job at a clothing store. She’d also worked as a deli clerk in the past.

After Woodstock Farmers’ Market took back its job offer, Baras filed an employment discrimination complaint with the Vermont Attorney General’s Civil Rights Unit in April 2018.

In its investigation, the AG’s Office found the market had failed to consult a health professional to help determine whether Baras’ disability would interfere with her job duties. Instead, after hearing about Baras’ physical condition, the company decided she was “not the right person for the job,” Brandon Little, the market’s culinary director, later told a state investigator, according to the AG’s report.

The investigator pointed out in the report that Little, a minority partner in the company, didn’t distinguish how a “brief break to replace an ice pack or sit down would operate any differently than an employee’s lawful request for a bathroom break.”

In December 2020, the AG’s Civil Rights Unit found “sufficient evidence” to sustain Baras’ allegations. (Under the Vermont Fair Employment Practices Act, it’s unlawful for any employer to discriminate against a “qualified individual with a disability.”)

The case went to mediation, but an agreement couldn’t be reached. In March, Baras filed a civil suit in federal court under the Americans with Disabilities Act.

For an older person with a disability, full-time jobs with benefits can be hard to come by, said Marilyn Mahusky, a staff attorney with Vermont Legal Aid’s Disability Law Project who is representing Baras.

“We believe the law is on our client’s side and she was treated badly,” Mahusky, who works out of the nonprofit’s Springfield, Vt., office, said in a phone interview. “It’s also an opportunity to apprise other employers of their obligations under state and federal anti-discrimination laws.”

Woodstock Farmers’ Market, which opened a second store in Waterbury, Vt., two years ago, has “never had anything like this in its 30 years,” said Chief Operating Officer Rob Korhonen, who joined the company after Baras’ job offer was rescinded. “It has built a reputation of being a very compassionate company that does right by its staff.”

According to its website, the company generates more than $9 million in annual sales and is currently offering new employees a $500 hiring bonus.

From my reading of court documents, the two sides seem to agree on the basic facts. They just have different ideas about what disability rights entail.

“Due to the physical demands of the job, (Woodstock Farmers’ Market) could not accommodate (Baras’) demands,” attorney Kaveh Shahi wrote in the company’s response filed last week to the lawsuit.

After learning she wasn’t wanted at Woodstock Farmers’ Market, Baras worked for a while in auto sales and later as a temp in the mail processing department at the U.S. Postal Service plant in White River Junction. But she’s been unemployed since the COVID-19 pandemic hit last year.

People with disabilities are always having to “show they belong and can do what others can,” said AJ Ruben, a supervising attorney for Disability Rights Vermont, who later this month will take over as executive director of the nonprofit that advocates for people with disabilities and mental health issues.

Ruben was good enough to read the AG’s report before we talked. This case appears to be a “lack of understanding rather than malice-based discrimination,” he said. “It seems like a teachable moment.”

I’m not sure Woodstock Farmers’ Market is in the mood to learn. In the company’s initial court filing, Shahi chastises Vermont Legal Aid for assigning two attorneys to “prosecute this rather simple claim involving a deli position that paid $12.50 an hour.”

Along with an unspecified amount in damages for Baras, Vermont Legal Aid is seeking attorneys’ fees if it wins, a common request in civil lawsuits.

Laws designed to prevent people with disabilities from being discriminated against are not means to “run up fees that are unreasonable and/or disproportionate to the amount in controversy,” Shahi argued.

To paint a public interest law firm that works on behalf of low-income Vermonters as the bad guy is a stretch. “We’re not pursuing this case so we can rack up fees,” Mahusky said. “We want to help people with disabilities exercise their legal rights.”

Mahusky and Shahi are “well-respected lawyers,” Ruben told me. Bringing up potential attorneys’ fees shows Shahi is “very concerned that his client is going to lose,” Ruben said. “He’s working proactively to limit the amount that his client will have to pay.”

For a high-end grocery store trying to defend what strikes me as the indefensible, that’s food for thought.

Jim Kenyon can be reached at jkenyon@vnews.com.




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