Rights were violated in dispute

A Twin Cities-based disability services nonprofit likely violated a worker’s civil rights when a requested promotion was denied. Minnesota Department of Human Rights Commissioner Kevin Lindsay issued the ruling July 5, in the case of Bradford C. Teslow versus Opportunity Partners.

Lindsay’s finding that there is probable cause in Teslow’s case is considered groundbreaking insofar as how Teslow was treated, because of the national spotlight on workplace inclusion. It’s not a final ruling but allows Teslow’s complaint to proceed.

The ruling sets into motion a conciliation process to resolve the discrimination allegations, which were filed in July 2015.

While indicating that it disagrees with the decision, Opportunity Partners has stated that it will change hiring practices. Recipients of support services will be considered for “regular” jobs.

The ruling raises tough issues for agencies that provide job training, jobs and supportive employment services. The workers who come through the agencies are considered to be clients or persons served. Many want to be treated like “regular” employees. The difference is financial as hiring workers has a higher cost. Just 13 percent of Minnesotans with disabilities who received state services worked in integrated community settings, according to  the Institute for Community Inclusion at the University of Massachusetts Boston. That’s one of the lowest rates in the United States.

“This case is a poster child for why so many of these facilities are not a pathway to competitive, integrated employment but are instead a dead end,” Alison Barkoff, national disability rights advocate in Washington, D.C., for the Center for Public Representation, told the Star Tribune.

Teslow, 59, is a St. Paul resident. He has a cognitive disability and depression stemming from a brain injury. He works at Opportunity Partners’ NewSource Bloomington assembly plant, packaging parts. He receives state-funded job support services.

Teslow has received vocational services from Opportunity Partners since 2013. In June 2015 he sought a site supervisor position at NewSource. He was soon told that his application wouldn’t be considered because he is a “person served.” A phrase used to refer to clients. Opportunity Partners indicated that hiring an applicant who is a “person served” would result in a violation of that person’s privacy rights under state and federal law.

His application was reviewed by staff, including the vice president for human resources. The person who initially received Teslow’s application believe he was a “temp to hire” and not a “person served.”

Teslow’s job coach, who doesn’t work for Opportunity Partners, asked about the decision to not consider the application for employment. In an email it was explained that in the records program used, there was no way to block access to certain records, including diagnoses. That was seen as a violation of the Health Insurance Portability and Accountability Act (HIPAA).

“There are a number of professions, particularly in the health care industry, where employees have access to confidential medical records,” the ruling stated. In those jobs, employees are warned that they face discipline if they improperly access confidential records. “When asked if it would have been possible to implement this type of system if (Teslow) had been hired the human resources generalist stated, ‘I don’t know.’”

State officials said that evidence showed that Teslow was not considered for employment because of his disability, and they hired him as a “person served” would not have been a HIPAA violation. If Opportunity Partners has a policy that prohibits hiring based on an erroneous interpretation of HIPAA, state officials said that also could be considered discriminatory and could give rise to another claim.

Opportunity Partners staff indicated that had Teslow’s application been considered, he may not have met minimum qualifications. One qualification for the job is valid automobile insurance, which he doesn’t have. But state officials said the initial decision to not consider the application was based on Teslow’s “person served” status and not on his qualification. The state also questioned why Teslow was contacted in August 2015 about the position two months after he had filed the discrimination complaint.

The ruling shines a light on a controversial aspect of employment for people with disabilities. Many disability service providers, including Opportunity Partners, hold special U.S. Department of Labor certificate that exempt them from the federal minimum wage. More than 100 companies in Minnesota hold the certificates. The places of employment are sometimes referred to sheltered workshops.

Workers with disabilities are paid based on productivity, sometimes earning very little. About 228,600 individuals across the nation are being paid sub-minimum wages under these certificates. Proponents contend that the workplaces allow people with disabilities to develop skills they wouldn’t be able to nurture elsewhere. Critics say it’s unfair to expect people to work for such low wages.

Opportunity Partners President and Chief Executive Officer Armando Camacho said in a statement that Opportunity Partners disagrees with the ruling and is weighing an appeal. But the nonprofit is also changing its hiring practices.