Proactive Employment Practices
According to the sports agent of Kyle Love, a former defensive tackle for the New England Patriots, Love was recently cut from the team. Why? Because he was diagnosed with Type 2 diabetes. Again according to his agent, Love is still fully capable of performing his duties (as are many other professional athletes with diabetes). Will Love complain to the EEOC or the Massachusetts Commission Against Discrimination (MCAD)? Time will tell. It certainly seems like a potentially viable claim to me.
The Americans with Disabilities Amendment Act of 2008 (ADAAA) breathed new life into the ADA by dramatically expanding the definition of “disability.” As HR folks are no doubt aware, the emphasis has shifted to the question of reasonable accommodations and away from the question of whether an employee is disabled to begin with. The EEOC’s settlements between Congress deliberating the ADAAA and the end of 2012 reveal this trend clearly. Here are a couple of examples:
Settlements related to claims of disability discrimination based on anxiety disorders went from 1.6 million in 2007 to 6.4 million in 2012. Settlements related to claims of discrimination based on cardiovascular impairments went from 1.6 million in 20076 to 4.5 million in 2012. The list goes on and on, and the upward trend is obvious.
So what does this mean to you? Make sure you have a clear process in place for handling requests for reasonable accommodations. Add an accommodation policy to your handbook. Don’t let supervisors make these calls on an individual basis. Centralize the process, and TRAIN supervisors on spotting and responding to these issues.
Really. Maria Waltherr-Willard, a Cincinnati school district french and spanish teacher, resigned after 35 years of teaching after she was transferred from the high school to the junior high. The reason? She has a rare phobia of young children (pedophobia, in case you were wondering). Teaching children of junior high school age triggers anxiety, chest pains, vomiting, and elevated blood pressure for Ms. Waltherr-Willard, according to her doctors. She is fine, though, around high school age children. The suit alleges the school district failed to accommodate her disability by refusing to reassign her back to the high school. While this seems to be one of those cases that leaves us scratching our heads, it will be interesting to see what the court does with her ADA claims. Especially in light of the ADA Amendments Act, which broadly expands the definition of disabilities. Stay tuned.
The first step to ensuring compliance with the ADA is making sure supervisors understand the duty to provide reasonable accommodations. Step two? Centralize the decision-making process when it comes to handling accommodation requests. The last thing you want is supervisors making their own individualized determinations about how to respond to such requests. If they do, you can be sure you will run into problems (consistency being only one of them).
A recent Ohio case proves this point. In Peirano v. Momentive Specialty Chemicals, the plaintiff requested accommodations for irritable bowel syndrome and colitis. In particular, she asked for a flexible start time and more frequent restroom breaks. Following her close-in-time termination for poor performance, the employer stood by the supervisor, who had wanted her to call in — from the bathroom, where it was suggested she keep a clock and a phone — if she would be late due to her condition. The court was not crazy about this accommodation. Making an employee call in from the toilet? Not reasonable (at least, a jury could so find). Presumably (hopefully at least), had HR been involved, the accommodation process would have been handled differently.
Takeaway: make sure the right hand knows what the left is doing. Even well-meaning and educated supervisors will have a hard time navigating the accommodation waters. So don’t ask them to.
The Tenth Circuit recently upheld the firing of a deaf employee who cold not perform the essential functions of her job. The employee worked at The Picture People, where a critical part of her job was communicating with customers. She communicated by writing notes and gesturing. A new supervisor deemed her communications “awkward, cumbersome, and impractical.” She was eventually terminated. The EEOC sued on her behalf, claiming the employer should have allowed her to communicate nonverbally with customers as a reasonable accommodation. The court found, and the Tenth Circuit agreed, that the employee could not establish she was qualified for the position, with or without a reasonable accommodation. It bought the employer’s argument that strong verbal communication skills were essential.
I have to admit – I’m a little surprised by this case. But the employer did a very good job explaining why it considered verbal communication skills to be an essential job function. It was listed in the job description and based on a particularized analysis of the job in question (which involved efficiently recruiting and registering customers for photo shoots and instructing young children during the shoots). In short, the employer showed the requirement was job-related, consistent with business necessity, and uniformly applied.
This is definitely one of those situations where a call to counsel is critical. Don’t make these “close calls” on your own. I can easily picture another court going the other way on this one.
and that means you may have employees suffering from seasonal affective disorder. In case you don’t know, SAD (so dubbed by the Diagnostic and Statistical Manual of Mental Disorders, aka DSM IV) is a kind of depression that strikes only at certain times of year. People can actually have it during any season, even summer, though it typically occurs during the cold, gray winter months. What does this have to do with HR? Be on the lookout for requests for reasonable accommodations.
A jury recently held, and the Seventh Circuit affirmed, that a school district in Wisconsin violated the ADA by refusing to transfer a teacher with SAD to a classroom with external windows, which she claimed would help relieve her symptoms. To support her request, the plaintiff submitted a doctor’s note indicating that natural light was critical to her recovery. See Ekstrand v. School District of Somerset.
Does this mean anytime an employee cries SAD you need to provide a workspace with natural light? Not necessarily, depending on the circumstances. But you should definitely be engaging in the interactive process and talking with counsel before you deny such a request.
Last week the Seventh Circuit reinstated a case brought by the EEOC against United Airlines. The case stemmed from a United policy that provided employees who could not longer perform their jobs to a disability could be considered for (but not automatically given) vacant positions for which they were qualified. The policy further provided for any such employees to be given “preferential treatment” in the selection process. The EEOC’s challenge was based on its belief that United had to actually place disabled employees in these jobs to comply with the ADA; preferential treatment was not enough. The Seventh Circuit agreed, holding the only way for an employer to avoid doing so was to establish an “undue burden.”
The Seventh Circuit joins two other Circuits with this holding (the Tenth and D.C. Circuits). The upshot for employers is, if an employee can no longer perform his or her job due to a disability, see if you have any vacant spots that meet their physical limitations. If so, the safest bet is to offer those positions.
Earlier this week the Seventh Circuit Court of Appeals sent an ADA case to a jury. In Feldman v. Olin, the plaintiff was diagnosed with fibromyalgia. To deal with the pain and fatigue, his doctor limited him to working straight shifts only (meaning no overtime). The employer accommodated this request for a couple of years. But then it realigned the workforce and turned the plaintiff’s shift into a rotating one that required overtime on a regular basis. When the plaintiff could no longer perform it (two weeks into the job), he was laid off.
Per the Seventh Circuit, a jury will decide whether the ability to work overtime was an essential job function. The employer insisted it was, but the court noted that the plaintiff’s job description contained no such requirement.
Takeaway: If you need employees to be able to work overtime or nights, make sure you say so in their job descriptions.
According to a recent article in the Washington Times, the number of lawsuits filed under the ADA has nearly doubled in the past five years and has seen a sharp uptick in recent months. As us HR-types know all too well, the ADA Amendments Act of 2008 drastically broadened the definition of “disability” under the Act. The result, not surprisingly, is a “flood” of new claims, many of them baseless. Last year, for example, the EEOC determined the highest number of charges had “no reasonable cause.” According to the U.S. Chamber of Commerce Executive Director Mike Eastman, “employers are facing a barrage of frivolous cases, and each one costs $30-, $40-, $50,000.”
With these somewhat terrifying figures in mind, employers would be wise to be proactive on this one. Check your policy on reasonable accommodations. Is it good enough? Are there any potential pitfalls during the hiring process (such as requiring a high school diploma, a la an EEOC letter drafted in December)? And are managers trained on understanding these rules and at least spotting potential disability-related issues? If not, what are you waiting for?
Starbucks was recently reminded of this critical rule when it failed to even consider an accommodation for a job applicant. The applicant wanted a barista job (the latte-makers behind the counter). She had dwarfism and was thus very short. She suggested she could do the job using a stool. The interviewing manager, however, did not take her seriously and moved on to the next applicant. When the EEOC got involved Starbucks claimed the applicant would pose a danger to customers and employees. The EEOC proceeded to file an ADA lawsuit. Starbucks, apparently seeing the error of its ways, quickly settled the suit and agreed to provide training on ADA procedures.
Assumptions about people’s disabilities will always get you into legal trouble. Not to mention, they are just that – assumptions. For all Starbucks knew, the applicant could have been the best cappuccino-creator it ever met. One more point: supervisory employees typically do not know all the intricacies of the ADA. Don’t expect them to. Instead, educate them.
A federal district court recently held that an employer’s attendance policy — which required employees to provide a doctor’s note describing the nature of an absence — violates the Americans with Disabilities Act. In EEOC v. Dillards, an employee missed a few days of work for health-related reasons. Upon her return she provided her supervisor with doctor’s note simply stating she was unable to work; the note did not state the nature of the condition requiring time off. In accordance with Dillard’s policy requiring more detail, the supervisor did not excuse the absences and the employee was then fired for excessive absenteeism. Not ok under the ADA, held the court.
Dillard’s policy stated that a health-related absence would only be excused if the employee submitted a doctor’s note stating “the nature of the absence (such as migraine, high blood pressure, etc ….” Dillard’s subsequently reaffirmed the policy, clarifying that the doctor’s note “must state the condition being treated.” According to the court, this policy violates the ADA on its face, as it permits and even encourages supervisors to make disability-related inquiries, which is prohibited by the ADA.
This case is noteworthy for a few reasons. First, it is probably a common occurrence for well-intended supervisors to ask for such information to ensure employees are not abusing sick leave. Or simply even to check up on employees by trying to show they care. But, doing so is risky. Because this is not an intuitive proposition, supervisory training is a must. Second, the courts have not often weighed in on the ADA’s prohibition against disability-related inquiries. So this case – even though it was decided in California – could impact employers everywhere. Third, employers should pay attention to the fact that the EEOC took this case to trial. As the agency has stated, it is placing a tremendous priority in pursuing potential ADA violations, in light of the ADA Amendments.
We know that morbid obesity is on the rise across the U.S. It follows that lawsuits alleging disability discrimination based on morbid obesity are also on the rise. Other than in Michigan, though, being obese is not a protected category. But a recent federal court decision held that severe obesity (defined as body weight 100% over normal weight) is covered by the ADA. The EEOC takes the same view. As case law continues to develop under the ADA Amendments Act, expect to see more agreement on this, as more and more physical conditions qualify for protection under the Act. So play it safe and tread carefully when dealing with severely obese employees.
According to the EEOC it received just short of 100,000 charges of discrimination in 2011, the most ever. It also collected over $455 million from private employers. And, the Commission resolved more charges than it took in, demonstrating the productivity of its increased staff. The most popular variety of charges? Retaliation, followed closely by race discrimination. Disability and age discrimination claims were on the rise, with alleged ADA violations resulting in the most monetary relief for claimants. The EEOC also saw a fair share of cases under the Genetic Information Nondiscrimination Act (“GINA”) — 245, to be precise — though none of these charges have yet proceeded to litigation.
So what does all this mean for employers? Now is not the time to let up on your legal compliance efforts. If anything, double down on training your workforce (particularly supervisory level employees). A couple of comprehensive sessions on preventing workplace discrimination and harassment are a great place to start.
Unlike most of the other employment discrimination laws, the ADAA (and its state counterparts) requires what some might consider preferential treatment for covered employees. While many employers find this concept counterintuitive, a 2010 case (that I blogged about here) makes it clear. The plaintiff in Colwell v. Rite Aid Corp. asked for a shift change as a reasonable accommodation. The employer denied the request, claiming the change would be unfair to other employees. Too bad, said the Third Circuit Court of Appeals in reversing a grant of summary judgment on the ADA failure to accommodate claim.
So what should an employer do when faced with a cry of “it’s not fair”? First, remember to respect the privacy of the individual. Not everyone needs to know why Susie needs an accommodation. Second, make sure managers understand their obligations, so they can politely tell the inquirers that it’s none of their business. Finally, keep your eye on the reasonable accommodations ball – the EEOC and the courts are doing just that.
Updating job descriptions tends to be one of those tasks that always seems to sit on HR’s back burner. But it’s more important now than ever, in light of the Amendments to the ADA. The Amendments, and the ensuing EEOC regulations interpreting them, significantly broadened the definition of what constitutes a disability under the ADA. Thus, the focus is now on whether the employer reasonably accommodated the individual with a disability (whereas before, the focus was on whether the individual was covered by the Act in the first place). A litmus test of this determination is whether the individual can perform the “essential job functions,” with or without a reasonable accommodation. So how do courts decide what constitutes an essential job function? You guessed it – job descriptions. Courts give a tremendous amount of deference to employer’s job descriptions, and this can either work for you or against you, depending on how accurate your job descriptions are.
The task of updating job descriptions or even creating them from scratch can seem daunting. Here are a few tips. Talk to supervisors and employees, and observe the job in question, when drafting descriptions. Also, be sure to include physical requirements (e.g., lifting, walking, standing, etc) and mental requirements (e.g., the ability to work productively in a loud factory environment). List attendance requirements, including weekend and/or overtime work. Still can’t imagine how you will get it done? Call me – I can help.
Many employers require applicants to have a high school diploma. Could this be an ADA issue? Yes, according to an informal discussion letter posted on the EEOC’s website earlier this month. If an individual has a learning disability which prevents him or her from earning a high school diploma, a uniform requirement for such a diploma could violate the ADA. As with all disabilities, according to the EEOC, a qualification standard that screens out certain individuals with disabilities must be “job related and consistent with business necessity.” This standard can only be met if the diploma requirement accurately measures the applicant’s ability to perform the job in question. Even if this standard is met, the employer has a second hurdle to jump, namely establishing that the individual could not perform the essential job functions even with an accommodation. In other words, if an applicant could perform the essential functions of the job with a reasonable accommodation, the employer cannot discard the candidacy based on the lack of a diploma.
While an informal discussion letter does not carry the weight of law or regulation, it is noteworthy insofar as it demonstrates the EEOC’s position on the issue. Do you have jobs that require a high school diploma? If so, give them a close look to see if the requirement is really necessary. If it is, be prepared to consider exceptions and accommodations based on the ADA.
Last year’s ADA amendments broadened the definition of what constitutes a disability under the law, making it harder for employers to defend lawsuits. But a recent Sixth Circuit decision reminds us that employers still have discretion in determining the essential functions of a job and whether a reasonable accommodation exists to perform those functions. In Johnson v. Cleveland City School District, a teacher with cervical myelopathy, a condition with symptoms similar to those of a stroke, became unable to control her classroom. In particular, she could no longer yell at students (referred to by the school as “verbally controlling resistant students”). The court accepted the district’s argument that yelling during class was an essential function of the job. It further deferred to the district’s decision to terminate Ms. Johnson, based on its determination that no reasonable accommodation existed. Ms. Johnson’s insistence that she could control her classroom in some alternate way notwithstanding, the court gave the employer wide latitude in ascertaining how the job needed to be performed.
This case is good news for employers. But, they need to remember that the key in dealing with employees with disabilities is engaging in the “interactive process” and trying to come up with a workable reasonable accommodation. Here, the employer did just that.
ADA cases are so fact-specific it can sometimes be hard to make valuable generalizations. When it comes to figuring out if a reasonable accommodation exists, though, it’s pretty safe to say it’s almost always about the process. A recent Ninth Circuit case, FEHA v. Lucent Technologies, is a nice example of a process done right.
The case involved a product installer whose duties required physical strength and stamina (as was appropriately spelled out in his job description). When the employee suffered a back injury at work, he received a year of paid leave under the employer’s policies. He kept trying to come back to work, submitting various doctor’s notes stating he could come back with significant lifting restrictions. Each time he contacted the company, his supervisors debated whether there was a position that could accommodate his limitations. Each time, they concluded there was not. Eventually, the employee underwent a couple of work-sponsored functional capacity examinations to determine his lifting abilities. The results: he could not lift the requisite amount (per the job description). Accordingly, he was terminated.
The Ninth Circuit — typically known for its employee-friendly stance — held the employer met its obligations under the ADA (and state law) because it interacted with the employee, time and time again, to determine whether there was a position that could accommodate his restrictions.
The case is good news for employers who grapple with accommodation issues, as it demonstrates that at some point, enough is enough and you can terminate. The key is to not pull the trigger too soon and to engage in a comprehensive interactive process first.
But you already knew that, right? Hopefully this post simply serves as a timely reminder. Why timely? Because as Jon Hyman over at the Ohio Employment Law Blog points out, disability claims have got the EEOC’s attention, big time. And sometimes, the preferred reasonable accommodation of the Commission (and the courts) is additional leave.
No fault attendance policies basically state that after a certain number of absences, regardless of the reason, the employee will be terminated. These types of policies used to be very common. Now, though, they are extremely problematic under the ADA. Say an employee is absent due to a physical or mental disability. Before counting that absence against him or her, the employer needs to consider whether a reasonable accommodation can enable the employee to perform the essential job duties. Maybe, the employee just needs more time off without worrying about being fired as he or she tends to the disability.
This is a tricky area because it is rife for employee abuse. At the same time, it’s a potential legal landmine for employers. If in doubt, check with your employment counsel.
It’s common for employers to tell employees that upon returning from a medical leave of absence, whether covered by the FMLA or otherwise, they need to be ready to return “without restriction” or for “full duty.” According to the EEOC, these terms may well run afoul of the ADA, as they do not leave room for employees requiring reasonable accommodations. Instead, employers should advise that returning employees must be able to perform the essential functions of their jobs, with or without an accommodation.
This may seem like a minor technicality, but an employer who failed to do so recently settled a lawsuit with the EEOC for over $3 million. So take the time now to check your return-to-work paperwork. The EEOC (not to mention plaintiff’s lawyers) may be watching.
It’s relatively easy to spout off about the legal do’s and don’ts when it comes to dealing with employees with disabilities (well, easy may be the wrong word, but you catch my drift). But what about the day-to-day interactions between co-workers? Are your employees equipped with knowledge that will make for smooth, comfortable interactions? Most likely, most employees have had little or no interaction with disabled individuals. A little practical training on appropriate communication skills can go a long way.
Here are just a few examples. When talking with an employee with a mobility impairment, it is generally best to converse at that person’s eye level. Employees should be mindful of the person’s personal space as well (meaning don’t touch their wheelchair or other assistive device). When first meeting an employee with a disability, it is appropriate to offer to shake hands. When speaking with a visually impaired person, employees should identify themselves by name at the beginning of the conversation and tell the person when they are leaving. When communicating with a deaf person, employees should speak clearly and at a normal volume, and keep their hands away from their faces. If an interpreter is present, they should speak to the deaf person, not the interpreter.
Training should direct employees to focus on what the individual with a disability can do, as opposed to what they can’t do. Just a small amount of education can go a long way to building respect and harmony in the workplace.
Last month, the Sixth Circuit upheld the dismissal of an ADA lawsuit filed by a medical resident with Asperger’s syndrome. In Jakubowski v. Christ Hospital, the plaintiff struggled with his communication and organizational skills. Accordingly, he was informed his residency was being terminated. Shortly thereafter, he was diagnosed with Asperger’s syndrome, and requested the defendant hospital accommodate him by increasing the knowledge and understanding of the doctors and nurses who worked with the plaintiff. The hospital refused, saying it lacked the resources to do so, but offered to help the plaintiff obtain a residency in a field that did not require patient interaction. The plaintiff sued under the ADA.
The court noted that the requested accommodation would not have helped the plaintiff perform the essential functions of his job. Accordingly, he was not “qualified,” as defined by the ADA. The court also noted it was persuaded by the hospital’s expressed concerns over patient safety with respect to the plaintiff.
The moral of the story is a good one for employers. Not all accommodations work, and not all requests need to be granted. Still, employers must engage in the interactive process.
Saturday morning, outside a grocery store in Tucson, Arizona, a lone 22-year old college dropout opened fire at a town meeting held by Congresswoman Gabrielle Giffords, killing six bystanders and wounding twenty others, including Rep. Giffords, whom he shot in the head. The tragedy has captured the national spotlight, as authorities try to put together the pieces of this grizzly puzzle. As human beings, we all stop to reflect and keep the victims and their loved ones in our thoughts. As employers, there is another layer to think about.
How do you prevent such a tragedy from unfolding in your workplace? There are two legal angles here. The first is workplace violence prevention. Have a policy in place, and train on it. Make sure upper management has an idea of how to deal with a violent outburst (this can be as simple as appointing specific people to contact the police, etc. Just have a discussion about it, for starters.) The second issue is how to deal with an individual who threatens violence. This involves an analysis of the ADA’s “direct threat” provision. In a nutshell, if an employee poses a direct threat in the workplace, the employer does not need to retain that employee. For an excellent and thorough analysis of this legal point, see Jon Hyman’s post on this topic.
In a post earlier this month, we wondered about the applicability of the ADA to employees’ use of medical marijuana. The issue has become a lot starker for Arizona employers, with the recent passage of the Medical Marijuana Act. The law provides that citizens can apply for an identification card from the state’s Department for Health Services, which, if granted, permits the card holder to obtain the drug for medical use. It specifically addresses the employment relationship, providing that employers cannot discriminate against registered card holders, unless the employer would lose a monetary benefit under federal law if it did not discriminate. So, for example, if an employee tests positive on a drug test, the employer cannot simply terminate the employee, but rather must ascertain whether the employee is a registered card holder. If she is, she cannot be terminated. The law does not protect marijuana use in the workplace, however. If you have operations in Arizona, check with counsel for more specifics to make sure you’re in compliance.
In July we predicted the EEOC might pursue weight-based discrimination as being prohibited by the Genetic Information Nondiscrimination Act (“GINA”). Well, the recent lawsuit filed by the EEOC against Resources for Human Development (“RHD”), a national non-profit human services organization, shows we had the right idea, but thought about the wrong law. In its suit, the EEOC alleges RHD fired childcare worker Lisa Harrison because she was obese, thereby violating the ADA. According to the EEOC, the termination was based on RHD’s erroneous perception that Harrison was unable to perform her job due to her weight. Remember that perceiving someone as disabled is just as illegal as treating someone adversely because of an actual disability under the ADA.
Prior to the ADA amendments, case law had pretty much established that obesity was not a covered disability. But, as we all know by now, the amendments changed the landscape considerably. It’s also worth noting that Ms. Harrison passed away prior to the filing of the lawsuit. The fact that the EEOC is moving forward with its claim shows it wants to make a point: obesity can be a covered disability under the ADA. Stay tuned; we’ll be watching this one closely.
We should be connected!!!
