In 1983, the company I was working for at the time of my accident, IBM, asked me to come back to work in a wheelchair. I was relocated to White Plains, N.Y., from 205 East 42nd Street in Manhattan, which was down the street from the United Nations building and across the street from the “Daily News.” (IBM is No. 8 in The DiversityInc Top 50 Companies for Diversity.)

I married the love of my life, Maggie, in 1988. Since then, we have raised two children, both now living in Boston: our daughter, who is now an attorney, and our son, who is finishing up college at Northeastern University.

In 1990, the Americans with Disabilities Act (ADA) became law. During the 20 years since the ADA was enacted, I have seen positive steps taken on many levels when it comes to changing attitudes regarding people with disabilities.

The ADA put the spotlight on a severely underrepresented group in our nation. Because of the ADA, people with disabilities are a group with a voice; we are now a legitimate constituency that has come of age. The disability community is a constituency that votes, that works, and that pays taxes. Human beings, who were once invisible, are now visible and can no longer be ignored.

The second prominent change I’ve seen in the last 20 years centers around the attitude of the American people and how our nation now perceives leaders. For example, the glass ceiling was symbolically and continually broken when women began to take on numerous leadership roles previously held by men.

You know these women as well as I do. In politics, regardless of political orientation, they include Secretary of State Hillary Clinton and former Speaker of the House Nancy Pelosi, holding powerful jobs previously held by men.

And I would be remiss if I didn’t mention another change in attitude we were all witness to: the historic election of our first Black president, Barack Obama. This attitude change in America bodes well for people with disabilities as we, as a community, aspire to similar leadership positions.

A New World

The third change I’d like to mention has to do with technology. For the first time in history, everything is connected—businesses, workflows and transactions.

There are 1.2 billion people, millions of businesses and perhaps a trillion devices connected to the World Wide Web today. In 2011, the Internet reached two billion people—nearly one-third of the world’s population.

Given the proliferation of technology, it shouldn’t be surprising that 70 percent of the computer chips produced today do not go into “computers.” They go into cars and planes, appliances, roadways, shipping containers, pacemakers, emergency rooms and every product with a radio-frequency identification tag … all “intelligent” and all connected.

With this technology revolution emerges a key point: Technology is the great equalizer for people with disabilities and will continue to play a major role in enabling people with disabilities to reach their full potential.

Between now and 2015, as the baby boomers retire, America will need between 10 and 15 million new workers. Add to that the demand for skills we see around the world and it becomes clear that businesses cannot afford to exclude any one constituency group from the talent pool.

This is especially true when it comes to people with disabilities, a large and under-utilized workforce that is employed at dramatically lower rates than the population of people with no disabilities, both in the United States and around the world. In August 2010, the U.S. Bureau of Labor Statistics reported that the unemployment rate of people with disabilities was 14.5 percent, higher than the rate for those with no disability, which was 9 percent.

Looked at another way, the employment-population ratio—the proportion of the population that is employed—was 19 percent for people with disabilities. Among those with no disability, the ratio was much higher: 64 percent.

The U.S. Census Bureau has previously reported that 51 million people, or 18 percent of the population, have some form of disability. Globally, the World Health Organization reports that between 750 million and 1 billion people have a disability. In addition, this constituency group controls $1 trillion in aggregate income and more than $220 billion in disposable income annually.

This data suggests that we should be able to leverage more of this under-utilized talent than we do today, if for no other reason than because it is good business—and people with disabilities are both customers and part of our talent base.

Global Challenges for People With Disabilities

The global environment argues against the exclusion of talent of any kind. Globalization, in my view, actually favors people with disabilities in the workforce, more than at any other time in history.

This is the new world of work, a world I believe is extending a hand to people with disabilities to not only participate but to lead. This is a time of great opportunity for people with disabilities to be a leader in business, government or other areas of employment. But more must be done to close critical gaps that will allow people with disabilities to become more fully integrated in society and the workplace.

To achieve this, we must strengthen partnerships with government and non-governmental organizations to help people with disabilities get to work as well as earn enough to wean themselves off our well-intentioned social programs. To accomplish this, three areas require attention: transportation, technology and inclusion.

First, transportation: According to a National Organization on Disability/Harris survey, people with disabilities are twice as likely to have inadequate transportation when compared with the mainstream population (31 percent versus 13 percent).

Lack of mobility is a major inhibitor if one aspires to a leadership role. The inability to travel, or the perception that one cannot travel easily, may even remove people with disabilities from consideration for a variety of jobs, making career advancement more difficult. Is this perception right? The answer is no. Does it exist? The answer is yes.

Government and business must continue to partner and look at transportation from the perspective of people with disabilities. A holistic approach must be taken, beginning with a person with a disability at home and mapping a route from home to work and back. The basic elements include: education and training, healthcare needs to get up and leave the house, appropriate transportation (public or private), and a workplace that is accessible, flexible and inclusive.

Second, technology: The Harris survey also reported that Americans with disabilities not only rely on assistive technology but a third reported they would lose their independence without technology.

Many assistive-technology accommodations cost as little as $500.00. The investment in technology to employ a professional with a disability may be less than the price a business pays for repeated costs of attrition, recruiting and hiring. Investments in technology can help make all employees more productive.

Finally, we can all do more when it comes to inclusion—that is, being comfortable with people who are different than we are.

Integral, Not Isolated

For some employers today, the inclination is to think that if an employee has a disability, the employment issue can be handled by just providing technology that enables an employee to work from home. In some cases that may be true or even necessary. But I think it’s critical for people with disabilities to be visible and in the workplace. To overcome basic misconceptions, a professional with a disability must be fully integrated into the workplace, not isolated.

I’m sure there are many organizations that will hire a person with a disability with the right skills for a job, but how many have the vision to consider that same person to run their company or organization? Take a look at people with disabilities who are professionals in your own organizations; they may just be the leaders you are looking for—right under your nose and ready to lead. I ask that you employ people with disabilities not just for a job but for a leadership career in your organization.

Although we have seen significant changes in the world, we still have a long way to go. As you reflect on this topic, consider these questions: What do you see when you look at a person with a disability? Do you see just a blind person, a person who is deaf, or a person who uses a wheelchair?

The next time you meet a person with a disability, I would like you to see a business colleague … possibly a person who could be your next manager or even the next CEO of your organization.

Until we change our perceptions and paradigms, we will never see what is possible. Until we see and act upon what is possible, we will never change the present.

– Jim Sinocchi, Director for Workforce Communications, IBM Corp.

The post What Is Possible for People With Disabilities? appeared first on DiversityInc.

Racial Discrimination

Racial names do not justify slapping customer. A white customer suspected of shoplifting was escorted to a security area for questioning. The customer’s white friend then barged into the area, cursing at the store employees, one of whom was Black. She used the N-word toward the Black store employee, who reacted by slapping the verbally abusive customer in the face. The police were called and both customers were arrested. The store then fired the employee for having slapped the customer, in violation of its no-violence policy and no-physical-contact-with-customers policy. The fired employee filed a Title VII race-discrimination case, alleging that Kmart was promoting a racially hostile environment and “ratifying hate speech” by firing the victim of harassment. The court ruled against the employee. The customer’s behavior was clearly harassing and improper. However, the store took prompt action to have the police remove the offender. The company had policies on how to deal with customers for these situations and how to raise complaints without escalating a situation. Slapping a customer was against policy and not warranted by a verbal situation. The employee’s escalation to the physical level was unwarranted and justified discharge. Lee v. Kmart Corp. (D. Minn., 2012).  For more on the discrimination and the N-word, read NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words.

Hostile supervisor loses discharge case. A Cuban-born manager filed national-origin and race-discrimination cases under Title VII and 42 U.S. Code §1981 after he was discharged. The evidence showed that the manager’s employees filed complaints about his supervisory behaviors. The evidence was that he yelled and swore at employees, used a “brutal and belittling manner,” demeaned them as they were dealing with customers, and generally “created a fearful environment.” When human resources met with him about these concerns, the manager refused to acknowledge any of the issues and expressed that he would not change his management style. He was fired as a result. The court found valid reason for the discharge and no evidence of any similarly situated non-Latino manager. The only other managers who were cautioned about rough supervisory behaviors had immediately recognized issues, expressed a sincere interest in change and corrected the behaviors, instead of digging in their heels and refusing to acknowledge the concerns. The manager’s case was dismissed. Martinez v. W.W. Granger, Inc. (8th Cir., 2012).

Religious Discrimination

Proselytizing judge loses case. A Michigan State Court administrator filed a complaint about the chief district judge’s use of the courtroom to proselytize. She alleged that he used his judicial position and authority to promote his particular religious beliefs, in violation of the Constitution. The judge then fired the administrator. She sued. The federal court jury awarded $734,000 in economic, compensatory and punitive damages. The appellate court confirmed the verdict, plus attorney fees. It found that the administrator’s complaint was clearly constitutionally protected; it addressed a matter of serious public concern. The chief district judge’s actions were clearly retaliatory against a citizen’s right to freely speak out against a government official’s alleged violations of the Constitution. Pucci v. Somers (E.D. Mich., 2012).

Disability Discrimination

Essential function can depend on number of other employees to bear the burden. A nurse suffered a stroke. She rehabilitated enough to return to work, but not full time. She could work limited hours with no on-call duties. This meant the other nurses had to put in extra duty hours and pull more frequent on-call nights, weekends and holidays. The nurse could not provide a return-to-full-time estimate and was ultimately terminated for inability to meet the essential scheduling requirements. She filed an ADA case and lost. There was no duty to convert a full-time job to part time. The court ruled that “A job function may be considered essential by virtue of the limited number of employees available to perform the work.” The ADA does not require accommodation by shifting essential functions and extra burden onto others. Azzam v. Baptist Healthcare Affiliates, Inc. (W.D. KY, 2012).

TSA immune from most employment suits. A diabetic Transportation Security Administration employee had a foot infection, took leave and returned with a fitness-for-all-duties doctor’s certification. His TSA supervisor refused to let him return because he “was too much of a liability.” He then, with EEOC support, sued under the Rehabilitation Act. The court dismissed the case. It ruled that the legislation creating TSA exempted the agency from liability under the Rehabilitation Act, FLSA, ADEA and several other employment laws. The court made a broad interpretation of the general clause in the Act giving TSA the power to set and enforce its employment standards “notwithstanding any other provision of law.” National security overrides all other interests. Field v. Napolitano (1st Cir., 2011).

Family and Medical Leave Act

Double damages for failure to give proper notice of change in FMLA policy. A company had an FMLA policy, providing 12 weeks per calendar year. So each January 1, there was a fresh 12 weeks available. It then changed to a “rolling” method, giving 12 weeks’ leave in a 12-month period measured back from the current usage. It did not send notice to employees about this change. In April, a 36-year employee requested and was granted FMLA. He had taken FMLA the prior calendar year as well. The company terminated the employment a month prior to his expected return because it now counted the prior year’s FMLA (pre-January 1) as part of the use in the past rolling 12 months. The effect was not only loss of a job; it also cut him off from retirement benefits he would have had in just two more years. In the FMLA suit, the court found bad faith on the part of the employer. It could not hold employees to a new policy that had not been communicated to them. (The FMLA generally requires a 60-day written notice of policy changes before they become effective.) The company’s actions were like springing a trap door without warning. The bad-faith interference with FMLA rights warranted double damages, an adjustment of the discharge date by two years to create eligibility for retirement benefits, and attorney fees, for a total of over $400,000. Thom v. American Standard, Inc. (6th Cir., 2012).

Click here to read more court cases on diversity legal issues.

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post Racial Discrimination: Black Employee Fired After Being Called the N-Word appeared first on DiversityInc.

In an era defined by an escalating “war for talent,” many employers are providing their workforces an environment that allows employees to better balance the competing demands of careers and personal lives. This is particularly important to Generation X and millennials, many of whom prefer greater control over their personal time. As an alternative to the Monday-to-Friday 9-to-5 schedule, these “work/life programs” have become increasingly popular. Examples of work/life program components include:

• Flexible work arrangements such as flex-time (e.g., flexible hours, compressed work week)
• Part-time schedules
• Telecommuting
• Discretionary or floating leave (e.g., paternity leave, educational leave, community-service leave)
• Job-sharing
• Shift-swapping

For more on work/life benefits and diversity management, watch our diversity web seminar on work/life.

Although the program is usually created at the headquarters level, programs must also be implemented locally, at field facilities or offices. The typical process requires an employee to approach her/his manager with a specific request for flexible or alternative work arrangements. The manager then must decide whether the request is consistent with the parameters of the company’s program and the needs of the business unit, since approval is not guaranteed. Often, human resources is involved in the decision-making, or review, process.

There are many positive reasons why employers initiate work/life programs. These include:

• Increasing productivity
• Retaining staff and decreasing turnover
• Expanding the talent pool, attracting and recruiting new employees
• Enhancing diverse recruitment and retention

See “Work-Life Balance and the Economics of Workplace Flexibility,” Executive Office of the President, Council of Economic Advisors Report, March 2010.

For more on diversity management and recruitment, watch Diversity Web Seminar on Recruitment: 5 Workforce-Diversity Strategies to Find, Engage & Retain Talent.

Properly designed and consistently implemented work/life programs can provide employers a competitive edge in attracting and retaining a diverse, highly productive workforce. (Here’s a comprehensive listing of diversity-management articles demonstrating the effectiveness of these programs.) Unfortunately, if improperly designed and inartfully or inconsistently implemented, these programs can backfire. They then may be an unintended source of depressed morale and possible legal exposure for the employer.

To begin, there is nothing per se unlawful or illegal about a work/life program. Indeed, the U.S. Equal Employment Opportunity Commission (EEOC) encourages employers to offer such benefits to their employees. Potential legal problems arise in the implementation of these programs. Similar to many other new workplace initiatives, these programs:

• Depend on local and individualized processing, deliberation and management
• Grant substantial discretion to field managers and human-resources representatives
• May implicate federal employment laws (e.g., Americans with Disabilities Act, as amended; Family and Medical Leave Act; and Fair Labor Standards Act) and state law.

Employers should identify potential problems in the design and implementation of work/life programs and take steps to minimize risks from the beginning. Some companies experiment with a pilot program. This allows them to further study program implementation before deciding whether to continue with it or make it available company-wide.
We describe below several instances where work/life programs may implicate certain federal (and state) employment laws, and we offer suggestions for minimizing potential legal complications and maximizing the benefits to the employer’s business and workplace.

Title VII of the Civil Rights Act of 1964: Preventing Discrimination

While the EEOC has strongly encouraged work/life programs, particularly in the caregiving context (e.g., for children, elderly parents, etc.), such programs present another potential source of discrimination allegations. Title VII of the Civil Rights Act of 1964 requires equal treatment and nondiscrimination with respect to the terms and conditions of employment—such as compensation, benefits and application of company policies—for covered employers regardless of race, color, religion, sex or national origin (“protected classes”).Most work/life programs empower local managers and/or human-resources representatives to determine whether employee requests for flexible schedules, for example, are consistent with the needs of the business and should be granted. Local discretion creates an opportunity for aggrieved employees to claim unlawful discrimination.

There is always a risk that such programs may be implemented in a manner that results in perceived—or actual—disparate treatment or disparate impact against one or more protected individuals. For example, if it appears that most flexible work arrangements have been granted to younger, or white, employees, the employer may be exposed to a discrimination claim.

Recommendations for Diminishing Discrimination Risks

Ensure that senior management exercises the same diligence, caution and oversight over the creation and implementation of work/life programs as it would with planning and launch of any other grant of managerial discretion over employment matters.

• Establish and disseminate clear policies and procedures to assure that supervisors make nondiscriminatory decisions based on sound and demonstrable business reasons.
• Document each decision with clearly articulated reasons. Decision making should be consistent and capable of serving as a potential precedent for future requests and decisions.
• Rigorously and regularly train all managers/supervisors and related human-resources personnel on the EEO/nondiscrimination/non-retaliation requirements of implementing work/life programs, making sure they understand that the programs are a central part of company policy.
• Ensure fairness in application of the rules by periodically reviewing the grants and denials for disparate treatment or adverse impact. Take appropriate remedial action based on the results of the analyses.

Family and Medical Leave Act

The federal Family and Medical Leave Act (FMLA) (and many state counterparts) requires covered employers to provide unpaid, job-protected leave to eligible employees for specified family or medical reasons. Since some employee requests for work/life flexibility, such as modified hours or compressed work week, might be prompted by medical or family concerns, employers should anticipate some overlap between flexible work arrangements and the FMLA.

Where an employee asks for a work/life arrangement because of caregiver issues and the manager does not know, or recognize, the implications of the FMLA, a legal issue could arise. Denial of such a request could inadvertently violate the act. Employers should incorporate safeguards to allow consideration of arrangements protected by the FMLA, where they are requested under the auspices of work/life programs. Read FMLA: What Employers Need to Know.

Recommendations

Requests for work/life flexibility based clearly on FMLA causes, such as where the employee expressly says she needs mornings off to care for an elderly parent, should be processed as FMLA requests. In addition, whenever a flexible work arrangement is denied under the work/life program in circumstances where the manager is unaware of the basis, employers should invite employees to request the same or similar arrangements under FMLA. These issues can be both technical and problematic. Managers should recognize and utilize expert advice whenever appropriate to avoid confusion by employees and missteps by management.

Americans with Disabilities Act Concerns

The Americans with Disabilities Act (ADA, recently amended by the Americans with Disabilities Amendments Act) generally prohibits discrimination against applicants or employees with defined disabilities and requires employers to provide reasonable accommodations where requested, except where doing so would cause undue hardship to the employer. Some work/life requests may be prompted by an employee’s medical or other covered disability. As with Title VII, employers need to be cautious that their actions do not result in disparate treatment or cause disparate impact for employees with disabilities as defined in the statute and regulations. Here, too, expert advice should be sought for challenging or complex scenarios.

Read Embracing Disabilities in the Workplace  and Disability Employment Awareness Month Facts & Figures for more information.

A cautionary note: Regarding the ADA reasonable-accommodation requirement, employers should be aware that granting work/life requests will make it more difficult to argue in a separate but similar ADA situation that the requested accommodation under the ADA would cause an undue hardship; if management has already granted the same request to one employee, how could there be “undue hardship” to grant a similar ADA request to another?

Recommendations

• If there is any reason to suspect that an employee is requesting a flexible work arrangement because of a personal medical or other covered condition, the employer should analyze that request as one for a reasonable accommodation under the ADA.
• Alternatively, the employer should provide employees who have been denied flexible work arrangements under the work/life policy an opportunity to renew the request as one for reasonable accommodation under the ADA if their need is prompted by a legitimate physical or medical condition that the business can appropriately consider granting without undue hardship to the business.

Fair Labor Standards Act Wage-Hour Concerns

The federal Fair Labor Standards Act (FLSA), along with analogous state and local laws, generally governs the wages workers receive and the hours they work, including minimum wage, overtime pay and record-keeping requirements for covered employees and employers. Telecommuting, flex- and part-time schedules, shift-swapping and job-sharing can trigger FLSA concerns. This is especially true where tracking hours becomes challenging, for example, with telecommuting or flex-time. Read about American Express’ virtual resource groups for telecommuting employees in Why Resource Groups Are Business-Resource Groups.

Compressed work weeks (e.g., four 10-hour days) may present overtime issues under state (but not federal) law, where working more than eight hours in a day (rather than 40 in a week) requires premium overtime compensation. While the full range of FLSA and state-law issues implicated by work/life–balance programs are complex and must be considered by legal counsel, the following recommendations address a few of these concerns. Read Successful Career Paths for Women in Corporate Sales for more on work/life benefits and women.

Recommendations

• Establish a process to maintain accurate time records for telecommuters, including strong policies requiring: employees to report all time spent on work-related duties and prohibiting “off-the-clock” work; daily reporting of hours worked; and supervisors to review time records frequently.
• Establish a process for maintaining accurate time records for flex-time employees, such as: requiring “badging” (secure electronic entry/exit) at the start and end of shifts; maintaining badge-swipe data; and periodically comparing badge data to employee time records, among other measures.

Cultural/Managerial Resistance

Although not strictly a legal issue, employers implementing work/life–balance programs often encounter resistance by managers accustomed to a 9-to-5 regimen. These managers may improperly deny meritorious requests for flexibility or evaluate an employee who has taken advantage of a work/life–balance initiative more harshly than one who has not. In most companies, managers hold the keys to the program’s ultimate success—or its failure. Their “buy-in” is critical if the benefits are to be achieved.

Recommendations

• Initial training of managers should communicate the importance of this program to the ultimate success of the company. Effective administration of the program should be an element of supervisors’ performance evaluations.
• Train managers to understand that employees should not be disadvantaged in performance reviews or career advancement because of participation in work/life programs.
• Conduct routine “audits” of employee-performance reviews, compensation and other personnel actions to discern any negative treatment or trends, and institute remedial measures, if necessary.
• Acknowledge and reward managers who demonstrate effective implementation and achievement of anticipated benefits of work/life balance in their business units, and share evolving “best practices” with other business units. Publicize such achievements.
• Encourage employee involvement through satisfaction surveys, group meetings and exit interviews to gain important workforce input on work/life initiatives. Read What Diversity Questions Should Be on Employee Surveys?

Conclusion

This article necessarily addresses only a few of the legal and practical considerations of work/life programs and provides recommendations to avoid legal claims and achieve the anticipated benefits. While work/life programs offer many advantages to employers and their employees, they also can raise thorny legal issues in areas where the law is constantly changing. Employers should work closely with their employment-law counsel to address and eliminate or reduce these concerns. This should take place prior to the introduction of the program and throughout its implementation. Employers may then proceed more confidently in winning their “war for talent.”

– Weldon Latham; John M. Bryson II, a Jackson Lewis partner, contributed to this article.  

Weldon Latham is a senior partner in the Washington, D.C., regional office of Jackson Lewis LLP, chair of the firm’s corporate diversity counseling group, chair of Jackson Lewis Diversity Committee, and counsel to the PepsiCo Global Diversity and Inclusion Governance Council and the Omnicom Group Diversity Development Advisory Committee. He is also a professor teaching corporate diversity at the Georgetown University Law Center.

The post Workplace Diversity: 5 Legal Challenges of Work/Life Programs appeared first on DiversityInc.

Disability Discrimination: 

Walmart manager’s unreasonable conditions for diabetic employee violated ADA. A Walmart meat-department employee with diabetes had always kept her testing kit close by at her desk in the work area. A manager ordered her to remove it to her locker, at a far end of the store. (There was no apparent significant reason for this direction.) The employee protested that she needed to frequently test her blood sugar, and she could not get to the locker soon enough to test and control her condition. Nonetheless, she was ordered to remove the test kit. Then she was told that if she left her work station to go to her locker, she would be fired. She could only test her blood sugar on breaks or lunch. Unable to effectively test and control, the employee soon had a major diabetic reaction while in the store’s meat cooler. She had a seizure and was hospitalized and unable to resume work at Walmart. Walmart defended by claiming she did not actually have a disability because she had always been able to perform all essential functions of her job. The court rejected this defense. The plaintiff had been able to do all functions until the manager’s direction and withdrawal of any accommodation made it impossible for her to successfully function. Berard v. Walmart Stores East LP (M.D. Fla., 2011). 

Employer should have waited a little longer. A route salesman experienced dizziness, memory loss and pain due to a heart condition. His doctor stated that he should not drive. Thus, he could not perform his job of driving the route. He took a leave under the company’s six-month short-term disability program, and others covered the route. The doctor had not provided any estimate of ability to return to work. The company sent a notice of inability to hold the job open indefinitely and its intent to have a replacement (as allowed under the ADA for an “indeterminate leave”). However, the employee promptly replied that he expected to be cleared for work in 30 days. The company replaced the driver. In 30 days he was cleared for return, but the job was now filled. He sued under the ADA. The court found the company had acted too quickly. Once the employee claimed a 30-day return possibility, the leave was no longer “indefinite.” The company should have continued the leave and engaged in the interactive process regarding the reasonability of holding the job for another 30 days. Hutchinson v. Ecolab (D. Conn., 2011). 

Uniform application and OSHA approval do not save overbroad medical inquiry. In response to a serious workplace accident, an employer created a mandatory certification process for all equipment drivers. This included a medical questionnaire form. One driver objected to the invasiveness of the questions. (Among other things, it asked for identification of any past illness or accidents, date of onset, all medications, etc.) He was fired for refusing to submit the form. In the following ADA case, the company defended by claiming: all drivers, whether with a disability or without, were uniformly required to submit the form; and OSHA had approved the questionnaire. Both defenses failed. The medical-inquiry sections of the ADA apply to every employee or applicant, not just to those with disabilities. A “uniform application” of an illegal form is still illegal. OSHA is not the agency with authority over the ADA. Any non-expert agency’s approval, whether OSHA, DOT or the IRS, means nothing regarding whether the form meets ADA requirements. Just as an expert plumber cannot certify a building’s electrical system, OSHA cannot certify anything for ADA compliance. The company may still present evidence to show the medical questionnaire was not overbroad and was consistent with business-safety necessity. Miller v. Whirlpool Corp. (N.D. Ohio, 2011).

Read “7 Things NEVER to Say to People With Disabilities” for tips on how to avoid disability discrimination charges.

Age Discrimination: 

Seventy-year-old employee fired for allegedly attacking 65-year-old supervisor. An employee was fired after 57 years of employment. He claimed in his ADEA case that he was subjected to age-discriminatory comments by his coworkers prior to the discharge; they called him “old sick man,” said he was “too old for the job” and told him he should retire. However, there was no evidence the coworker comments had any effect on management’s decisions. Instead, the court believed the company had a valid reason for termination. The employee had an argument with his supervisor and struck or attempted to strike the supervisor. Further, there was no indication the company had any age bias—the supervisor was older than 60. Igaravidez v. International Shipping Corp. (1st Cir., 2011).

Legislative and Administration Action:

Fair wages under Americans with Disabilities Act would eliminate special pay certifications. An act introduced by Reps. Cliff Sterns (R-Fla.) and Tim Bishop (D-N.Y.) would end the special sub-minimum-wage programs for workers with disabilities. Currently, employers who apply for special certification can pay certain workers with disabilities less. The sponsors of the act state that it is no longer valid to presume that workers with disabilities are less productive and warrant unequal pay.

Read more legal articles here.

 Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post No ADA Accommodation Leads to Seizure, Hospitalization for Diabetic Worker appeared first on DiversityInc.

Starbucks failed to accommodate server with dwarfism. A job applicant had short height because of the condition of dwarfism. A Starbucks store refused to place her in a barista job. She claimed she could do the job using a stool. However, the management did not even try this accommodation. It concluded, without facts, that she would “pose a danger to customers and employees.” When the ADA case was filed, Starbucks quickly settled for $75,000 and agreed to provide training on proper ADA procedures to managers. The EEOC praised Starbucks for its prompt resolution of the issue. EEOC v. Starbucks Coffee Co. (W.D. Tex., 2011). 

Employee’s clothing too modest for Catholic facility. A non-Catholic was hired to work in a nursing home operated by the Catholic Church. Because of her own Church of the Brethren beliefs, the employee wore very modest clothing, including long dresses, long sleeves and a hair cover. The nursing director informed the employee that her garb made her stand out in a way that bothered some residents and did not fit into the operation or its mission. When the employee insisted her attire was a function of her faith and that she would not modify the clothing, she was fired. She sued for religious discrimination. The court granted judgment to the nursing home based upon the First Amendment and the Title VII deference to religious organizations. The decision was based on what was appropriate for a Catholic service environment. A religious-based employer is not required to accommodate the religious practices of other faith employees when they even minimally conflict with the organization’s views of what is or is not a proper environment for its own faith. Kennedy v. St. Joseph Ministries, Inc. (4th Cir., 2011).  For best practices on religious inclusion, read Starting Religious Resource Groups.

Be sure you really hang up before you say what you really think―race and sex comments warrant discharge and union’s refusal to pursue grievance. A company manager gave training on its anti-harassment policy and zero-tolerance requirements. The next day, an employee present at the training left a voicemail for that trainer to complain about his supervisor. (So far, a protected act.) Then, failing to realize he had not actually hung up, he decided to “entertain” his coworkers by launching into a profane derogatory tirade of the manager and the anti-harassment training she had given. He used the N-word and made gross comments about her breasts. All was clearly recorded on the voicemail. He was fired, despite his 29-year tenure with the company. The union then refused to pursue his grievance process to the arbitration level and withdrew. The employee sued the company for unfair discharge, as well as the union for breach of its duty of fair representation. The court found against him on both grounds. He had clearly and intentionally violated the anti-harassment policy’s prohibitions on use of derogatory racial and sexual epithets and slurs. The union could validly consider this in its decision on which cases it should take to arbitration and was neither arbitrary nor unfair in its decision of non-representation. Robeson v. U.S. Steel Corp. (E.D., Mich., 2011). Read NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words for more on stereotypes and racism.

Excess skin was a serious medical condition. A city employee took FMLA for a gastric-bypass surgery. She then lost more than 150 pounds. This left large areas of excess skin that hung from her arms and abdomen. She requested FMLA to have surgery for this and was denied. The employer considered it only cosmetic. She was fired when she took time off for the surgery. A jury ruled for the employee. The medical testimony was clear that the excess skin was itself a serious condition which, if uncorrected, could cause serious infections. The employer should have considered the medical verification before denying the leave. Alcazar-Anseimo v. Chicago (N.D. Ill., 2011). For more on FMLA, read FMLA: What Employers Need to Know.

Car salesman has valid constructive-discharge claim for age harassment. In Dediol v. Best Chevrolet, Inc. (5th Cir., 2011), the court found a valid claim of age harassment and constructive discharge. A 65-year-old was hired as a car salesman. His manager allegedly began daily comments about age, never calling him by his name but always “old man,” “pop” and “you old motherf***er.” The manager steered customers away from him and then escalated to more profane statements and physical threats. The salesman complained to higher management, but nothing was done. The manager reacted to the complaint by threatening to beat up the salesman and “charged” at him. The salesman left and did not return to work. The court found ample evidence to support a harassment and constructive-discharge case. For ways to avoid age discrimination complaints, read Things NEVER to Say to Older Coworkers.

Company overreacts to workers-compensation disability determination. An employee with a work-related elbow injury received a permanent partial (30 percent) disability determination. There were partial restrictions on mobility and an evaluation for not doing “a lot of heavy lifting.” However, the company interpreted this disability determination as meaning the employee could do no lifting whatsoever and could not use hand tools, and it banned him from returning to his job. The company seemed to jump to unfounded conclusions with no assessment and no interactive process with the employee. In the ADA suit, the court found discrimination for “regarding” the employee as having a disability. Jones v. Nissan North America (6th Cir., 2011).

Wisconsin legislature proposes eliminating conviction-record discrimination protection. The Wisconsin Fair Employment Act currently prohibits job discrimination against those with conviction records unless the crime was “substantially related” to the job or the work environment. Assembly Bill 286 would remove that protection and allow employers to fire or not hire anyone convicted of a felony, without any assessment of relatedness to the work. Further, AB 286 would prohibit local governments from enacting their own antidiscrimination rules on conviction status and would void those that currently exist. The legislature believes that the state should set uniform standards, rather than allow local governments to exercise discretion or consider local needs. For more on fairly hiring applicants with criminal records, How to Fairly Hire Applicants With Criminal Records.

Read more legal articles here. 

Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

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