by Emily Sternberg, HR Consultant
Employers and HR Professionals face “difficult” employees all the time. We know who they are, they are those employees who are considered intimidating, demeaning, or even threatening to co-workers. The question is, can these employees, with an ADHD diagnosis, be considered disabled under the Americans with Disabilities Act? The US 9th Circuit Court of Appeals says no, overturning a jury verdict that awarded a former police officer more than $750,000 in damages, back pay, front pay, and attorney’s fees. The court stated that although the ADA forbids discrimination against “a qualified individual on the basis of disability”, the evidence presented in the case showed that the plaintiff’s interpersonal problems with co-workers did not amount to a substantial impairment of his ability to interact with others within the meaning of the ADAA. The court ruled that a cantankerous person who merely has trouble getting along with others is not disabled under the ADA. The court’s opinion also stated that one who is able to communicate with others, though his communications may at times be offensive, is not substantially limited in his ablity to interact with others within the meaning of the ADA.
The lesson in this case is that all employers must take all requests for disability seriously before making the determination that the employee or candidate is no longer “qualified” to perform the essential functions of the job. Simply arguing that an employee has no disability may no longer be applicable under the ADAAA interpretation. As always, be sure to consult with a labor law attorney before taking adverse actions against an employee who has requested accommodation under the ADAAA.
Source: Weaving v. City of Hillsboro, No 12-35726 (9th Circuit Court of Appeals 8/15/2014)
Can a one-armed security guard be effective? A jury recently found for the Equal Employment Opportunity Commission (EEOC) who sued an employer for unlawfully discriminating against a licensed security guard who lost his right arm in a car accident. The employee, Alberto Tarud-Saieh, was removed from his post because of a customer complaint about his disability. In fact, it was the president of a community association that stated, “This company is a joke. You sent me a one-armed security guard.” The company responded by removing Tarud-Saieh from his post and not reassigning him to another post, thus terminating his employment.
Treating a disabled individual based on customer preferences, stereotypes, and assumptions as to what the employee can and cannot do is a violation of the Americans with Disabilities Act (ADA). Instead, a disabled individual should have the opportunity to be considered based upon their actual abilities to perform the job. Tarud-Saieh was awarded $35,922. Besides the award to their former employee, the company must also engage in training and implementing anti-discrimination employment policies.
This is a good example of how sound policies and a little training can go a long way to protect your company from charges of discrimination. Training managers to understand what constitutes discrimination under the ADA is vital to ensure an equal employment opportunity for all.
A New Jersey healthcare provider will pay over $1 million to resolve claims before the Equal Employment Opportunity Commission (EEOC) that it committed disability discrimination. According to the EEOC, since the employer’s leave policy merely tracked the requirements of the federal Family and Medical Leave Act (FMLA), employee leaves were limited to a maximum of 12 weeks.
The employer’s policy meant that employees who were not eligible for FMLA leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks, all without additional consideration of whether the Americans With Disabilities Act (ADA) required some additional accommodation, including additional leave.
Managing both FMLA and the ADA can be quite tricky at times. Additional leave after FMLA is exhausted is considered a reasonable accommodation under the ADA guidelines and must be factored in to an employee’s recovery or health management resolutions. Whether an employer extends leave or not could be a million dollar question!
A federal appeals court has ruled that for purposes of assessing/providing accommodations under the Americans with Disabilities Act, employers must consider that attendance at the job may not mean physical presence at a specific place. The case involved an employee who asked to work from home when needed to accommodate her irritable bowel syndrome. The employer had allowed others to work at home, but not as frequently as was anticipated for the plaintiff/employee. The employer said that due to teamwork needs, physical attendance was an essential job function. The trial court agreed with the employer. The appeals court disagreed, however, and sent the case back for a jury trial. The appeals court said there was evidence that the plaintiff’s job could be adequately done from home and use of technology (e.g. Skype) could satisfy teamwork needs. The lesson? Employers who plan to insist on physical presence when denying an employee’s work-from-home accommodation request will have to prove that presence at work by technology will not work just as well.
The Equal Employment Opportunity Commission (EEOC) filed suit (for the fourth time!) against the nationwide auto parts retailer, AutoZone, for disability discrimination. This time its attendance policy which uses a “points” system for absences, did not permit any general exception for disability-related absences. Its policy required termination for employees reaching twelve points.
The complaint included an example of an employee with Type 2 diabetes who had to leave work early on occasion because of insulin reactions. The employee was fired because of an accumulation of attendance points. Another employee was fired in retaliation for objecting to the attendance policy and filing a charge with the EEOC.
The three other disability claims were described as follows:
1) Failure to promote a visually impaired employee and denying permission to use a guide dog; Employee awarded $140,000.
2) Refusal to accommodate a sales manager’s disability by insisting he mop floors, leading to greater injury; Employee awarded $424,000.
3) Refusal to accommodate a lifting restriction, fired the employee; Proceeding to jury trial.
The EEOC takes all discrimination and retaliation claims very seriously, which common sense would dictate that an employer should do the same. Conducting a self-audit of policies to ensure they are in compliance with the law and are not discriminating toward any individual or protected class of individuals should be a high priority in most organizations. As you can see from AutoZone’s examples, one charge is too much – four, well . . . .
Signed into law July 26, 1990, the Americans with Disabilities Act (ADA) turns 23 today! The ADA provides civil rights protections to individuals with disabilities ensuring equal opportunity in employment, public accommodations, public transportation, state and local government services, and telecommunications.
The current text of the ADA includes changes made by the ADA Amendments Act of 2008, which became effective on January 1, 2009. Another of the ADA regulations includes its ADA Standards for Accessible Design providing disabled individuals more physical freedom to access buildings, work sites, housing, transportation, and other places previously inaccessible to them.
Employers will find this website especially helpful for guidance on workplace accommodations for disabled employees and applicants, as well as programs to help them affirmatively recruit disabled individuals.
Check out the Disability.gov website that provides comprehensive information on disability programs and services in communities nationwide.
On September 19, 2012, a bill was introduced to help protect pregnant women’s rights in the workplace. What? You say there already is a law like that? Well, not quite!
Back in 1978, The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act, was passed with the intent to protect women from discrimination due to “pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.” It was made a part of the Civil Rights Act because it protects against sex discrimination, covered by that law. The Pregnancy Discrimination Act required equal treatment in employment for pregnant women. This meant that all policies that were applied to other non-pregnant employees should be equally applied to the pregnant employee. The law also said that an employer could not refuse to hire a pregnant woman on the basis of her pregnancy or any condition relating to it. And, it went further yet. Pregnant women were to be afforded equal health insurance benefits for all her pregnancy related expenses as with other medical conditions. However, pregnancy has never been considered a disability. . . until possibly now.
The bill mentioned above that was introduced by Sen. Robert Casey, Jr. (D-PA) proposes that pregnant women be given the same workplace accommodations that are afforded to persons with disabilities. The Pregnant Workers Fairness Act (PWFA) would require an employer to make “reasonable accommodations” as required by the Americans with Disabilities Act (ADA) for a pregnant employee, to allow them to perform the essential functions of their job.
If this bill passes, it will bring great relief to pregnant women who once feared disclosing their pregnancy to their employer for fear of being involuntarily transferred to another position, placed on unpaid leave, or even losing her job. It would permit a woman to have minor modifications to her job duties that would allow her to work as long as possible in her pregnancy without worrying about harm to herself or her unborn child. These minor adjustments could be as simple as an offer of light duty or even providing a chair in which to occasionally sit, when standing or walking is the norm. Affording such reasonable accommodations would also give the expectant mother a measure of economic security, knowing her pregnancy will not jeopardize her employment. The National Women’s Law Center reports that women make up half the workforce, so this bill, if it becomes law, will be a step in the right direction to keep the economy strong.
Keep your eye on this one because opposition is strong. Republicans who oppose this bill argue that it will bring lower profits and undue hardship on businesses. See the full text of the bill here.
This month we are blogging about the EEOC. I don’t think we could have picked a subject that has more media attention than this one. In one news feed this morning, there were four articles with “EEOC” in the headlines. One would think with all the attention, the number of cases would be decreasing as we more awareness of discrimination is created. That, however, doesn’t seem to be the case. As written in my blog on June 6, the number of cases reported has increased for three years in a row.
So what exactly does the EEOC enforce? In most cases, it is nothing new. In fact, most of them have been in force for years and, in some cases, decades. The most recent law is the Genetic Information Nondiscrimination Act of 2008 (GINA). Below are the other laws enforced by the EEOC:
- Title VII of the Civil Rights Act of 1964 (Title VII)
- The Pregnancy Discrimination Act (Amendment to Title VII in 1978)
- The Equal Pay Act of 1963 (EPA)
- The Age Discrimination in Employment Act of 1967 (ADEA)
- Title I of the Americans with Disabilities Act of 1990 (ADA)
- Sections 102 and 103 of the Civil Rights Act of 1991
- Sections 501 and 505 of the Rehabilitation Act of 1973
Stay tuned to future blogs as we explore each of the laws above, including what the EEOC’s requirements regarding compliance include.
The U.S. Equal Employment Opportunity Commission (EEOC) just issued revised enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. While it appears the guidance will tighten the criminal background screening process, employers will retain their right to consider criminal reports.
While SHRM has not fully reviewed today’s guidance, we are concerned that the EEOC guidance may conflict with state law requirements that employers must conduct criminal background checks on certain positions, such as health and child care employees and police officers. The guidance will apparently encourage (but will not require) employers to conduct an “individualized assessment” of the position in question. Furthermore, the guidance will not prohibit job applications that have a “check the box” for disclosing prior convictions (depending on how they are used). However, such boxes on applications may run afoul of the new guidance if they are used as a blanket screening tool on job applicants.
The Equal Employment Opportunity Commission (EEOC) has issued a new guidance for employers regarding the interplay between the ADA Amendments Act (ADAAA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The guidance explains how protections for veterans with service-related disabilities differ under the ADAAA and USERRA, and how employers can prevent disability-based discrimination and provide reasonable accommodations. You can read the new guidance here: http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm.