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Investigation don’t: do not promise to release your report

Back in January I blogged about a Minnesota Vikings investigation into allegations made by former player Chris Kluwe that he was let go based on his pro-gay marriage stance (here).  I commended the Vikings for responding swiftly to a blog post by starting an investigation.  Apparently, the Vikings promised to release the report to Kluwe.  They then decided not to release the report, and a settlement between Kluwe and the team has fallen apart.

What’s the lesson?  Don’t make promises you might not be able or willing to keep.  An investigator should never promise a complainant (or any other witness) that the report will be shared.  Quite the opposite – investigation reports are often maintained confidentially.

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The EEOC’s new Enforcement Guidance on Pregnancy Discrimination

Yesterday the EEOC released a new Enforcement Guidance on Pregnancy Discrimination (see here).  The Guidance covers issues ranging from the Pregnancy Discrimination Act’s (“PDA”) application to women with past pregnancies and the potential to become pregnant; the application of Title VII to discrimination based on caregiver responsibilities; and the intersection with the ADA when it comes to the duty to provide reasonable accommodations.

While pregnancy in and of itself is not a “disability” under the ADA, many medical conditions associated with pregnancy are covered.  Thus, employers must be mindful of their duty to engage in the interactive process and provide reasonable accommodations where appropriate.  In its Questions and Answers document that accompanies the new Guidance, the EEOC also states that employers are required to provide light duty work for pregnant employees, if they provide light duty for non-pregnant employees.  The agency elaborates that “An employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries” (emphasis added).

I’ll be blogging more about the new Guidance, but it’s worth your time in checking it out.


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An NLRB Update

A couple of weeks ago the U.S. Supreme Court decided the Noel Canning case, which undid a slew of NLRB decisions (I blogged about it here).  How is the NLRB responding?  The Board’s general counsel gave some answers in an American Bar Association webinar last week.  While the cases decided by the improperly constituted Board do not have precedential value (meaning the Board cannot rely on them in future cases), the reasoning behind those cases still stands and should be considered persuasive in future cases before the Board.  In other words, employers can expect the NLRB to maintain its positions on issues pertaining to non-union workplaces, including social media policies.  Thus, while the Noel Canning decision was huge news, the Board intends to aggressively pursue its agenda of enforcing NLRA rights in all workplaces.

In the meantime, President Obama has renominated an NLRB candidate who was nixed by the Supreme Court in Noel Canning.


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Two tips for managing employee performance issues

For business owners, HR professionals and managers, dealing with employee performance issues is an inevitable part of the job.  There are two guiding principles to follow when it comes to managing employee performance: communication and documentation.  They are fairly simple concepts, but the hard part is putting them into practice consistently.

Communication:  If an employee is not meeting your legitimate performance expectations, let him or her know.  Even if you think the lapses are beyond obvious, don’t expect your employees to be mind readers.  In fairness to them, they can’t improve if they don’t know they’re not meeting your standards.  Also, open communication prevents (or at least mitigates) an employee from later claiming the performance issue was just a pretext for some unlawful motive, like discrimination.

Documentation:  Anytime you have a conversation with an employee about a performance issue, put it in writing.  It does not need to be a formal part of the personnel file (though sometimes it will be).  But it should be clear and concise so that if a judge or jury were somehow looking at it down the line, they would understand what the issue was and your need to address it.

These two tips can save employers time, money and stress down the road.  But they can’t work if your managers aren’t trained on them.



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Remember the case of the employee fired for stealing a bag of chips?

Back in May I blogged about an employee who was fired for stealing a bag of chips from Walgreens.  The employee was a diabetic who typically carried around candy in case she suffered a drop in blood sugar.  On one occasion she started to shake and sweat, a sure sign she needed to ingest some sugar.  But she had none on hand.  She took a bag of chips (valued at $1.39) and tried to pay for it, but no one was at the register.  Thus, she went about her duties and forgot about the chips.  When Walgreens discovered the “theft,” it fired her.  An EEOC-initiated lawsuit followed, alleging Walgreens violated the ADA by failing to accommodate the petty theft.  The case was set for trial after the court denied Walgreens’s motion for summary judgment.

Last week the EEOC obtained a settlement of $180,000 with Walgreens.  In addition, Walgreens agreed to provide training to employees on the ADA and reasonable accommodations.  The EEOC attorney captured the agency’s view of the matter, stating “[p]eople may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.”  Framed this way, the outcome seems pretty darn reasonable.

What’s the moral of this story?  Make sure all managers understand their duties when it comes to reasonable accommodations.  Consider having a centralized decision-making process for accommodation issues.  And above all, be reasonable.


Bag of Potato Chips


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Breaking news: US Supreme Court decision throws thousands of NLRB decisions into question

Many of us HR and employment law types have been waiting for the Supreme Court’s decision in the Noel Canning case, in which the D.C. Circuit Court of Appeals help that President Obama’s January 2012 recess appointments to the National Labor Relations Board were improper (not because recess appointments are improper in general, but because Congress was not actually in “recess” when the appointments were made).  The Supreme Court upheld that decision today.

This is huge news.  It almost certainly means that thousands of Board decisions over the past couple of years are invalid.  The NLRB’s activist stance in inserting itself into all workplaces, not just unionized ones, has been the subject of much commentary and criticism, including on this blog.  What does this mean for employers?  Stay tuned.

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Have you conducted a wage and hour audit recently?

If not, now would be a good time.  FLSA suits are at an all-time high, according to the Federal Judicial Center.  What does a wage and hour audit entail?  Primarily, reviewing employee classifications of exempt and non-exempt employees.  And then fixing the mistakes you are bound to uncover.  Inadvertent misclassifications are rampant.  It’s almost impossible for employers to get this right, as the legal standards can be nebulous.  The liability, though, can be astronomical.

So what are you waiting for?

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What happens when a CEO lets an employee post naked pictures of a former employe who sued him for harassment?

He’s out, especially if his name is Dov Charney and he founded American Apparel.  According to a workplace investigation commissioned by the company’s Board of Directors, Charney knew about the employee’s intent to post naked pictures of a former female employee who happened to sue Charney in 2011, claiming he forced her to have sex over a several month period.  Though Charney did not himself post the pictures, his acquiescence in the matter was enough for the Board, who fired him last week.  (The investigation also uncovered misuse of company funds, adding to the Board’s upset).

The takeaway is simple: Social media and sex don’t mix, especially when it comes to work.

dov charney

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Do your managers know the rules on third party harassment?

If not, it may be time for some training.  The basic rule is that an employer has a legal obligation to protect its employees from harassing behavior from anyone, even third parties such as customers and vendors.  If an employer knows (or should know) about such conduct, it must take some action.  The appropriate action will depend on the circumstances, but some options include banning the third party from interacting with employees, shielding the particular employee from the offender, and speaking to the third party.  The standard is that the employer’s reaction should be “reasonably calculated to end the harassment.”  And with all harassment issues, the employer’s response must be prompt.

A recent Fourth Circuit case illustrates the point nicely.  The plaintiff customer service representative had to interact almost daily with an outside sales representative.  The sales rep repeatedly engaged in inappropriate conduct to the plaintiff, including making comments about women with whom he had sex, showing the plaintiff pictures of naked women, and referring to the plaintiff (who is African American) as a “black bitch.”  The plaintiff’s supervisor heard this last comment and the plaintiff complained to her about it.  The supervisor’s responded that the sales rep was, indeed, a jerk but “I don’t think he will do it again.”  When the plaintiff complained to her supervisor about the sales rep on another occasion the supervisor rolled her eyes and shook her head.  But she did not take any action to stop the harassment.

THIS WAS THE BIG MISTAKE – Once the supervisor was on notice of harassing conduct towards her employee, she had a duty to report and take action.  She should have gone to HR, but she didn’t.  When the plaintiff herself eventually went to HR, the sales rep was prohibited from interacting with the plaintiff.  The problem, though, was that this action did not occur for about three years after the plaintiff initially complained to her supervisor.  That is not what the courts mean when they use the word “prompt.”

Thus, the case will move forward to a jury trial.  This could have been easily avoided had the supervisor understood her responsibilities.

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Religious accommodations: not necessarily the accommodation of the employee’s choice

The duty to reasonably accommodate religious beliefs does not mean the employer must accept the employee’s proposed accommodation.  A recent Eleventh Circuit case makes this point.  In Telfair v. Fed Ex, the plaintiffs were Jehovah’s Witnesses.  Their work schedule changed from  Monday through Friday to Tuesday through Saturday.  Because this change conflicted with their Saturday religious obligations, they offered to work Tuesday through Friday.  The employer said no but offered them different Monday through Friday positions, though at a lower pay rate.  They plaintiffs refused.  The employer suggested they take a 90 days leave to apply for other positions that would accommodate their religious obligations; again the plaintiffs refused.  They were subsequently terminated.

The employer fulfilled its obligation to reasonably accommodate, held the court, even though it did not grant the request to not work Saturdays in the plaintiff’s current job.  The court was persuaded by the fact that the employer offered alternatives and tried to work with the plaintiffs.

Courts want to see employers trying to work with employees on accommodation issues.  Make sure your managers understand this, and who to reach out to in the event of a religious accommodation request.


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Decision-maker’s ageist remark leads to jury trial, despite evidence that the employment action had nothing to do with age

Earlier this month the D.C. Circuit Court of Appeals sent an age discrimination case to a jury, despite the fact that the employer had a legitimate, non-dscriminatory reason for its employment action.  Why is this significant?  A jury trial can be a scary proposition, as juries have awarded large verdicts and tend to be very unpredictable.

In Wilson v. Cox, the 69 year old security guard plaintiff worked at a retirement home for about a year before his position was eliminated.  The employer’s Chief Operating Officer (COO) made a couple of remarks to and about the plaintiff around the time of the position elimination.  He stated the plaintiff “didn’t come here to work, you came here to retire.”  He also referred to plaintiff and other older guards being prone to falling asleep on the job.

When the plaintiff sued, the district court tossed the case out on summary judgment, holding there was a legitimate reason for the position elimination (saving money).  The age-related comments were, per the court, simply commentaries on the plaintiff’s performance.  The D.C. Circuit reversed the case, and it will now head to a jury trial.

According to the appeals court, the age-related comments were evidence of age bias – exactly the type Congress sought to eliminate in passing the ADEA.  Based on those statements, it is for a jury to decide, not a judge, whether discrimination motivated the position elimination.

Takeaway: Make sure all decision-makers know how dangerous age (or any protected category) related comments are.  If a position needs to be eliminated, or any other employment action needs to be taken, it should not be shadowed by off the cuff remarks that could evince discrimination.



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Leaves of absence under the ADA: how long is long enough?

The ADA requires employers to provide reasonable accommodations, including leaves of absence, to qualified individuals with disabilities unless doing so would result in an undue hardship.  A question employers repeatedly struggle with is, how long is long enough?  According to a recent Tenth Circuit decision, six months, generally speaking.

In Hwang v. Kansas State Univ., the plaintiff sought and received a six month leave of absence.  Thereafter, per her doctor’s advice, she requested additional time off.  The employer denied the request and terminated her employment, applying a policy that provided for a maximum of six months leave in all cases.  When the plaintiff sued under the Rehabilitation Act (which basically tracks the ADA for entities that receive federal funding), the court held the initial six month leave was all the employer needed to do to fulfill its duty to provide a reasonable accommodation.

The following idea was central to the court’s holding: “After all, reasonable accommodations – typically things like adding ramps or allowing more flexible working hours – are all about enabling employees to work, not to not work.” (emphasis added)

While the case provides some useful guidance for employers struggling with the question of how long is long enough, please remember a few key points when it comes to accommodating employees with leaves of absence:

  • “No fault” attendance policies or inflexible leave policies are still pretty risky, just ask the EEOC.
  • The employer’s obligation is to engage in the “interactive process” with the employee in question — that means have a genuine dialogue.
  • Before terminating an employee with a disability on a leave of absence, consider consulting with counsel.
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Employer to applicant: “Come back after you had the baby”

Can you guess what happened?  An EEOC lawsuit followed by a settlement, that’s what.  A Chick-fil-A franchise owner interviewed a pregnant applicant.  He asked her all kinds of questions about her pregnancy, didn’t hire her, but told her to come back and talk to him after she had the baby.  RUH ROH.  This is a classic example of what not to do when dealing with a pregnant applicant.

Learning points/reminders:

1.  Applicants are covered by the anti-discrimination laws, just like employees.

2.  Pregnant employees/applicants cannot be treated any differently than others, even if they come to you nine months pregnant!


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The latest NLRB craziness: swearing at your boss is “protected activity”?!

Nick Aguirre was a car salesman in Arizona.  He met with two managers and the dealership’s owner to voice his concerns over wages, commissions, and break times.  When the owner told him that if he did not like the conditions he could find work elsewhere, Mr. Aguirre unleashed a string of obscenities at his superiors (including a few f-bombs and an a-hole).  Not surprisingly, he was fired.  Earlier this week, the NLRB ordered Mr. Aguirre reinstated.

According to the 2-1 ruling by the Board, Mr. Aguirre is entitled to the protections of the NLRA notwithstanding his behavior, because he was discussing working conditions and was responding to “extremely provocative acts” by the owner.  The Board further noted Mr. Aguirre did not touch anyone during his outburst, nor did he threaten to physically harm anyone.  The dissenting Board member pointed out that the decision implies “that the Act mandates tolerance of [misbehavior] whenever it is connected to protected activity.”

This decision is pretty much the height of ridiculousness IMO.

So what is a proactive employer to do in response?  Not much.  It’s always wise to check with counsel before terminating someone.  Or have your seasoned HR professional do a risk assessment.  But I don’t believe employers should feel hamstrung by employees who engage in  insubordinate, disrespectful behavior.  Sometimes, the lesser of two evils is the better choice (firing the offender and risking the wrath of the NLRB versus letting a cursing employee run roughshod over an organization).


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Do Ohio employers have to provide breaks for non-exempt employees?

No.  There is no requirement under either federal or state law that requires employers to provide break periods (except for minors).  However, most employers do provide breaks for non-exempt workers.  Is this a good idea?  Absolutely – why not give people some time to recharge, fuel up, and relax.  We’re people, not computers.  Assuming you do provide breaks, there are a few rules you need to know.  If a break is 20 minutes or less, it needs to be paid.  If a break is over 20 minutes, it can be unpaid so long as employees are free to leave the premises and do not do any work during the break.  If an employee works during a break, though, they must be paid.


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Avoiding claims for assault and battery in the workplace

There has been an increase in state law claims for assault and battery in the workplace.  Employers should understand these claims and know how to best avoid them.  Civil assault is generally defined as an incident where a person shows an intent to harm another, and the “victim” believes that s/he will be hurt.  No actual physical contact is necessary for a civil assault claim.  Because of the fact-intensive nature of this claim, it is a hard one for an employer to win on summary judgment.  So too with civil claims for battery, which is generally defined as some kind of offensive touching of another person.  It is easy to imagine how this kind of claim could arise in the workplace.

What should HR do?  Be aware of these types of claims and be sensitive to situations that could implicate them.  For example, an employee complains she was afraid her manager was going to hit her.  Or she complains a manager actually touched her in a way she found offensive (picture a light jab to the shoulder).  If these situations arise, investigate them and take appropriate disciplinary action.  In other words, treat them the way you would a harassment or discrimination complaint.

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Things that make you go hmm: female HR rep gets male employee fired because he rebuffed her sexual advances

Sometimes facts are more interesting than fiction.  Take the recent case against Beachwood-based DDR Corp.  A male employee claimed he was sexually harassed by a human resources rep, who hit on him repeatedly, to no avail.  She even allegedly tried to force her way into his hotel room on a business trip.  As a result of the rejection, she sought to persuade the decision-makers to fire the employee; they complied.  In  Velazquez-Perez v. DDR, the First Circuit sent the employee’s claims to trial, reversing the trial court’s grant of summary judgment.

Lessons learned (or reiterated): Women can be harassers.  This is a classic case of quid pro quo (tangible employment action) harassment.  All managers (especially HR!) need to understand the anti-harassment rules (i.e., training).  Finally, when it comes to termination decisions, decision-makers need to make sure they have all the facts, and the facts really support the decision.

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DOJ gets big settlement in LSAT discrimination case

The Law School Admissions Council (LSAC) administers the LSAT – the prerequisite to aspiring lawyers everywhere to get into law school.  The Department of Justice (DOJ) sued LSAC for violating the ADA in administering the infamous test in a discriminatory manner.  According to the lawsuit, LSAC routinely denied accommodations to disabled test-takers, and also flagged the scored of test-takers who got more time for the test as a reasonable accommodation.  The result: a 7.73 million dollar settlement.  Ouch.

Reasonable accommodations are no joke.  Take this ADA legal requirement seriously by having a policy, training on it, and being ready to engage in the interactive process when the need arises.


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NLRB judge tells employer it cannot require employees to be respectful

A recent NLRB case stretched the limits of my credulity (and I’ve been pretty stretched out by the Board’s rulings the past couple of years).  The case involves a Hooter franchise in California.  An employee (we’ll call her Employee A) got in a verbal fight with another employee.  Employee A hurled obscenities and got so agitated that the manager called the police.  Not surprisingly, the employee was fired.  She then brought an unfair labor practice charge to her local NLRB.  The judge ordered Hooters to reinstate her with back pay.  It also ordered the restaurant to post a sign stating: “WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits employees from being disrespectful to the Company, other employees, customers, partners, and competitors, posting no offensive language or pictures and no negative comments about the Company or coworkers of the Company.” (emphasis added)

So having and enforcing a rule requiring employees to be respectful – not only to one another, but to customers now violates Section 7 rights to engage in “protected, concerted activity”?  I’m hoping the ruling is an anomaly.  Most employers I know have Codes of Conduct and the like, wherein they set forth behavioral expectations of employees.  Requiring respectful behavior should be a n0-brainer, not the target of an unfair labor practice charge.

What should you do in response to this recent ruling?  Nothing, yet.  Except cross your fingers that it does not stand or spread.



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As part of a harassment prevention plan, consider an employee hotline

You probably know you are legally required to have a “harassment prevention plan.”  This plan must include, per the courts, a solid anti-harassment policy that tells employees where to go if they have concerns about harassment.  This reporting mechanism has to be specific and clearly communicated to employees, and they have to have more than one option (in other words, they should not be told they must report harassment to their supervisor, who could be the alleged harasser).

A great option for many employers is an employee hotline.  This would be a number employees could call at any time where they could leave a message indicating their concerns.  This type of hotline is often used for the reporting of suspected fraud, but it’s a fantastic option for harassment reporting as well.  Once they leave the message, the company operating the hotline will communicate directly with the employer, relay the concerns, and even offer resources for addressing them.

BTW, other essential parts of the harassment prevention plan are Training and Investigations.


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Bosses behaving badly – does it matter if they are women or men?

When it comes to the whirlwind surrounding New York Times Executive Editor Jill Abramson’s abrupt firing, it seems to some that the answer is “yes.”  Times Publisher Arthur Sulzberger Jr. has come out defending his position and vehemently denying claims of sexism.  He stated her termination had nothing to do with her gender but was instead based on her management style.  This may well be true.  Maybe, as he has stated, he gave her ample warning and plenty of time to improve the management style issues that were troubling him.  I’m not in any position to judge this, and I won’t try.  But one aspect of the media frenzy surrounding Abramson’s termination that I find worthy of comment is the notion that she was, well, a bitch.

Forgive my language, but isn’t that the sense we get?  I’ve heard Abramson called “pushy” and “mean.”  I can’t help wonder why those terms seem only to be applied to female leaders.  When’s the last time you heard a male leader called “pushy”?  It’s not that there aren’t any; that’s a given, right?  But it seems that society accepts (and maybe even expects) these traits in male leaders, while women are still expected to be warm and fuzzy.  I’m not saying this is the case.  I’m saying it’s interesting food for thought, and the Abramson situation provides an opportunity to consider the issue.

abramson, jill


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Is permitting employee theft ever a reasonable accommodation under the ADA?

While it seems like the answer to this question should be a resounding “no,” a recent case against Walgreens shows that sometimes, permitting employee theft may actually be a reasonable accommodation.  But wait – the facts of the the case make this outcome seem more reasonable than it would, at first, appear.

Josephina Hernandez was a long-term Walgreens employee.  She had diabetes and was permitted to carry around candy while she worked, in case of a precipitous blood sugar drop.  One day, however, she did not have any candy nearby when she began to shake and sweat.  Recognizing the symptoms of her diabetes acting up, she knew she need to ingest some sugars, and fast.  So she grabbed a bag of potato chips (valued at just over $1) and dug in.  She tried to pay for them, but no one was at the register.  When the half-eaten bag of chips was discovered, Josephina explained the situation to her supervisor and again tried to pay.  But it was too late.  Pursuant to Walgreens no-exceptions policy against employee theft of any amount, she was terminated.

The EEOC is now taking the case to trial (they just survived a motion for summary judgment filed on behalf of Walgreens).  According to the court, it is for the jury to decide whether permitting the “theft” would be a reasonable accommodation of Josephina’s disability.

Takeaways: this is a case where the facts very much determined the outcome.  I would not suggest that a blanket rule of “permitting employee theft can be a reasonable accommodation.”  But what this case shows very clearly is that reasonable accommodation issues are intensely fact-specific.  Uniform application of company policy is not a surefire way to beat an ADA claim.  Employers should proceed with caution and analyze disability issues carefully and deliberately (and ideally, with counsel).


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ADA trap for the unwary: Don’t label employees’ problems

When employees exhibit behavior problems, it can be tempting to label them with psychiatric terms (e.g. bipolar, narcissistic, OCD, schizophrenic).  This can be extremely dangerous from an ADA perspective, so put away that armchair psychology degree.  The ADA not only covers “disabilities,” but also individuals who are “regarded as” having disabilities. Thus, an employee who is perceived as being disabled and subjected to an adverse action based on this perception can have a solid claim under the statute.

So what should employers do?  Focus on the behavior, not the cause.  Instead of “It seems like James’ OCD is interfering with his ability to focus on his long-term assignment” say something like “James has consistently failed to focus on and make progress with respect to his long-term assignment.”

It’s a simple solution, but an easy mistake to make.  Make sure your supervisors understand this “regarded as” prong of the ADA.


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Do you know: An employer’s obligation when a customer harasses an employee

If a customer harasses an employee, the employer’s obligation is essentially the same as it would be if another employee were the harasser: take action to stop the harassment.  Fred Meyer, a subsidiary of The Kroger Company, recently learned this lesson to the tune of half a million dollars.  The facts of the case are a perfect example of what NOT to do if an employee complains of harassment at the hands of (in this case, literally) a customer.

A man in his early 80s came in to Fred Meyer’s Milwaukee store almost daily.  According to the lawsuit filed by the EEOC, he would fondle employee’s breasts and buttocks, make lewd comments, and rub up against them.  He would even sit by their time clock so they would have to be near him when they punched in.  Several employees complained, but managers dismissed the complaints as “hearsay,” even though there was a video of a harassing incident.  The harassment stopped only when the employees went to the police; the customer was convicted of sexual assault.

Takeaways: If a customer harasses an employee, an employer must take action.  The duty os to provide a harassment-free workplace, regardless of who is doing the harassing.  Also, the age of the harasser is irrelevant.  Don’t get trapped by stereotypes of “he’s harmless” and the like.  Finally, include these lessons in your harassment training.



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EEOC to employers: be careful your ADA forms don’t violate the ADA

The EEOC recently released an informal discussion letter to an employer who inquired about the legality of its ADA forms.  While the letter is not binding, it is noteworthy in that it reveals the EEOC’s position on this issue.  What are ADA forms anyway?  The employer in question apparently got a sample ADA policy and reasonable accommodation request form from a state agency’s website.  These forms delineated employee’s rights under the ADA, but also outlines circumstances where the employer would NOT provide an accommodation.  For example, the form stated that unscheduled or excessive absences would not be considered a reasonable accommodation.  The EEOC took issue with this provision.  While that may sometimes be the case, the point of the reasonable accommodation process is to engage in a case-by-case, individual-specific, interactive process.  Barring some accommodations from the get go was at odds, per the EEOC, with the reasonable accommodation obligation itself.

The other aspect of the form that the agency commented on was its request for information related to the alleged disability.  Remember, the ADA limits employers’ ability to request medical information.  Thus, questions such as “describe your treatment plan” cannot be asked across the board.  Employers can ask for disability-related information if necessary to determine whether the employee has a disability and/or needs a reasonable accommodation, such questions must be individually tailored to the situation at hand.

Takeaway: It’s great to have an ADA policy.  But it should be a general statement about the employer’s participation in the reasonable accommodation process where appropriate.  It should not delineate specific instances of accommodations that will not be granted, nor should it accompany a form requesting medical information.  ADA issues should be handled on a case-by-case basis.

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