Gender Discrimination

Food company settles OFCCP charges of adverse impact hiring discrimination. A national food distributor has agreed to pay approximately $200,000 and change its hiring practices. The Office of Federal Contract Compliance Programs (OFCCP) charged that the company’s hiring practices discriminated against women. In a nine-month period, the company hired only six out of 90 qualified female applicants (6.6%) for “order selector” positions at one of its facilities. Out of the male applicants, the company hired 40 of 150 qualified applicants (26.6%). The OFCCP considered this disparity too great to be random and too great to avoid a conclusion of gender discrimination. The situation was heightened by evidence that a number of the rejected female applicants had experience and credentials which were equal to and greater than the men who were hired. The settlement monies will go to women who were not hired, and a number of those will also be offered jobs. This was a no-fault settlement because it was reached in a conciliation process, before the OFCCP proceeded to the enforcement stage. OFCCP v. Nash Finch Co. (Administrative Settlement, 2012). 

Religion/National Origin Discrimination

Offensive mannequin and one comment were not enough to create harassment case. A Jewish hospital employee of Mexican origin filed a case on religious/national origin’ harassment and for retaliatory discharge after he complained about the harassment. The harassment consisted of three incidents. There were mannequins in one area of the hospital. The supervisor noticed that one had a “Hitler-style mustache” and thought it would be funny to position the arm in a Nazi salute. The Jewish-Mexican employee saw this, was offended and put the arm back down before the end of the day. He then called the internal complaint hotline about the offensive incident. During the call he also stated that he heard that the same supervisor had previously referred to the hospital’s cleaning crew as “those Mexicans,” allegedly in a negative tone. The employee then transferred to another location. At that location he was critiqued for performance issues and complaints by patients about his work. This critique eventually led to discharge. He filed a Title VII case on religion, national origin and retaliation. In the case, he added the evidence that the supervisor who posed the mannequin had also once noticed the large Star of David necklace worn by the employee and said, “That’s gaudy!” This was further evidence of anti-Semitic animosity.

The court granted summary judgment, dismissing the case. The incidents were not sufficiently severe or pervasive to constitute illegal harassment. Neither the mannequin pose nor the Mexican comment were directed at the employee. Though insensitive, there was no indication the less-than-a-day mannequin pose was intended to be anti-Semitic. Not every Hitler reference or parody has such an intent. The jewelry comment had no religious reference attached. It was a large piece of jewelry, and the court would not interpret a religious meaning to an otherwise neutral comment. Finally, the performance critique and discharge were by a different supervisor, in a different location. The evidence was that this supervisor had no knowledge of the employee’s prior hotline complaint and so could not have acted in retaliation. De La Rosa v. Hanger Prosthetics and Orthotics, Inc. (D. Ariz., 2012).

National Origin Discrimination

Deputy sheriff can maintain retaliation case for investigation of her citizenship status. A 13-year veteran deputy sheriff of Mexican descent made an internal written complaint about alleged improper treatment of and derogatory and discriminatory comments made to and about Mexican inmates in the county jail. The following day, she was suspended pending an investigation of her own status—was she a U.S. citizen or legal resident? The deputy was able to produce the evidence of citizenship and was reinstated. However, the court validated her ensuing suit for retaliation under 42 U.S. Code § 1983, against the county, the sheriff and two other personally named defendants. The judge found a substantial foundation that the reason for the sudden investigation of the deputy’s legal status was her complaint about improper treatment and national origin discrimination, a matter of public concern. Garcia v. Arapahoe Co. Sheriff’s Office, et al. (C.D. Col., 2012).

Disability Discrimination 

Failure to confer with coach/guardian can violate interactive process. Some disabilities render the person less capable of communicating without assistance. This may be true for visual and hearing conditions and is often the case with intellectual disabilities. A kitchen worker with an intellectual disability was capable of doing the job if his supervisor was reasonably sensitive to his understanding abilities and manner of direction. His accommodation plan included a request to consult with a third-party job coach or his guardian regarding accommodation requests and before any tangible employment decisions. The employee did make requests for accommodation, which seem to have been ignored. There was no communication with the designated third party. He was then fired, again with no consultation with the designated third party. This violated the established accommodation plan and the ADA-required interactive process. The company agreed to settle the ensuing case for $255,000 plus a series of compliance requirements. EEOC v. Bannes Health (Administrative Settlement, 2012).

State employee cannot sue under ADA-Title II. The U.S. Supreme Court has ruled that state agencies are immune from suit under the ADA’s Title I employment sections due to the 11th Amendment’s “sovereign immunity” clause. (Employees can file cases under the Rehabilitation Act if the agency takes federal funds for a program they work under.) Title II of the ADA, however, specifically applies to state and all other government agencies. Title II prohibits discrimination by any public entity “in any public services, benefits or activities.” A university employee alleged she was discharged due to failure to accommodate her spinal conditions. She sued under Title II, claiming the language covered any discrimination, including employment actions, by an entity which provided public services. The court disagreed. It ruled that Title I and II are mutually exclusive. Title II is limited to those who are recipients or participants of the public services and not the employees of those services. Ewell v. Bd. of Regents of the U. of Oklahoma (10th Cir., 2011). This is the fourth court to make this finding (also the 3rd, 6th and 9th Circuits). However, the 11th Circuit has allowed a Title II employment case. So other cases may be brought to test the waters in other circuits.

History of drug use vs. current drug use. The ADA does not protect an employee from the consequences of current drug use. However, there is a “safe harbor” for those who have a “history” of use, have completed a treatment program and are no longer using. Where is the transition point? In Shirley v. Precision Castparts Corp. (S.D. Tex. 2012), an employee was abusing prescription painkillers at work. Instead of discharging him, as it could have, the company allowed a leave for treatment with the condition that he complete treatment. After two days, the employee checked out of the program, against the doctor’s advice. He was fired. He sued under the ADA, claiming he had a protected disability as a “former user.” The court disagreed, finding “current use” means “recent use.” The employer could infer the use was current, especially since the person failed to complete treatment and checked out after only two days. There must be a “sufficient time” after the last use to qualify for the “safe harbor” protection.

One year is enough time, and college perceived employee as drug dependent and disabled. A mailroom supervisor at a private college became dependent on prescription pain medication following a series of back surgeries. He tested positive for an “excessive amount” of opiates. He entered and completed a treatment program for addiction. He continued to take a different prescription medication for his continuing surgeries and pain, monitored by his physician, along with opiate-blocking medications. A year after the completion of the drug-treatment program, the college again ordered a drug test. It again showed the presence of prescription pain medication. The college fired the employee. In this case, the employee did qualify under the ADA’s “safe harbor” as a person with a record of past treatment. Further, the college did not establish that the prescription medication level was “excessive.” It did not ascertain that he was taking the medication under his doctor’s monitoring and treatment advice. Thus, the termination violated the ADA, based on the employer’s perception of drug addiction, instead of a valid foundation. The jury awarded $300,000, plus attorney fees and costs. Fowler v. Westminster College (D. Utah, 2012).

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 Poor Workforce Diversity Practices Result in Gender Discrimination appeared first on DiversityInc.

“The difference between the right word and the almost-right word is the difference between lightning and the lightning bug.” —Mark Twain

As diversity leaders, we understand that disability is just another kind of difference, like culture, ethnicity, gender or sexual orientation. We recognize that diversity is a valuable source of insight and adaptability, generating better business ideas and high-quality service. Differing abilities are a part of that healthy diversity. It’s our business to promote inclusiveness throughout our organizations and to advocate for policies and programs that support it.

In building an inclusive culture, we’re on the front lines and need to be visibly living our organizations’ values every day. It’s important that we set the tone not only in what we do and say, but how we say it—in formal messaging as well as everyday conversation. This is where even diversity leaders can get stuck.

Sometimes inclusive language can seem a bit cumbersome, but with a few simple changes each of us can make a significant difference—helping to promote an inclusive culture while setting an example both inside and outside our organizations.

Here are six ways never to talk about disabilities:

1.     Never say “a disabled person” or “the disabled.” Say a person or people “with disabilities.”
Put the person first. A disability is what someone has, not what someone is. For instance, “mentally ill” is less respectful than “person with mental-health issues.” “Retarded” is never an appropriate term. Say “intellectual disabilities” or “cognitive disabilities.”

2.     Never use the term “handicapped parking.” Use “accessible parking” instead.
Handicapped parking is still in use (e.g., when referring to parking placards), though the word “handicapped” is offensive and has been virtually eliminated in most other contexts. Remove it from your organization’s vocabulary completely by using the term “accessible parking.” (It’s also more accurate, as accessible describes the parking and handicapped does not.)

3.     Never use the term “impaired.” Use terms such as “low vision,” “hard of hearing” or “uses a wheelchair” instead.
Though it may be used in legal contexts, the word “impaired” can be offensive, as it implies damage. Many people with disabilities do not see themselves as damaged, but simply as different.

4.     Never say “hidden” disabilities. Say “non-visible” or “non-apparent.”Many disabilities are not apparent, such as serious illnesses or chronic health conditions, sensory limitations, or mental-health and learning disabilities. When referring to these disabilities, avoid using hidden, as it has negative connotations, implying purposeful concealment or shame.

5.     Whenever possible, don’t say “accommodations.” Say “adjustments” or “modifications.”This can be tricky, as accommodation has a specific legal meaning and must be used in certain contexts, like policy or government communications. However, accommodation suggests doing a favor for the person who has a disability. An accommodation is a workplace or work-process modification made to enable an employee to be more productive. It is necessary and not a preference or privilege. The terms adjustment and modification capture this idea without suggesting a favor or special treatment, so are preferable whenever specific legal terminology is not required.

6.     Never use victim or hero language; describe situations in a straightforward way.
Don’t use language that portrays people with disabilities as victims, such as “suffers from,” “challenged by,” or “struggles with.” Say “someone who uses a wheelchair” or “wheelchair user,” not “wheelchair-bound” or “confined to a wheelchair.” On the flip side, don’t use heroic language when people with disabilities complete everyday tasks and responsibilities. People with disabilities don’t see themselves as inspiring simply because they’re going about their daily lives. We all have challenges—working around those challenges is not heroic, it’s just human.

What Terminology Should I Use?

It’s worth noting that even in the disability community (yes, that is how advocates for inclusion of people with disabilities refer to ourselves), different people are comfortable with different terminology. Some are fine with the descriptor “disabled,” which is in common use in the United Kingdom. Others may freely use “impaired.” However, as diversity leaders, it is our job to promote behaviors that make all people feel valued and included. Knowing that some people are offended by these terms, I feel strongly that the most inclusive course is to avoid them and adopt a vocabulary that feels respectful to everyone.

As champions of diversity, we have the opportunity—and the responsibility—to set standards for how our people, organizations and society speak and think about people with disabilities. By shifting our language, we can help shift perceptions and promote the culture of inclusion that is the backbone of healthy diversity in all aspects of life.

–Lori Golden, Ernst & Young AccessAbilities^TM Leader 

Golden leads Ernst & Young’s internal initiatives in the Americas to create an enabling environment and inclusive culture for people working with disabilities. She works with Ernst & Young  AccessAbilities^TM, the firm’s disabilities-focused Professional Network; consults on work adjustments and career development; drives efforts to enhance ergonomics and accessibility in offices, communications, meetings, trainings and technology; and educates Ernst & Young’s people on disabilities-related issues.

*The views and opinions expressed herein are solely those of the author, and do not necessarily reflect those of Ernst & Young. This article features contributed content and has not been fact-checked or copy-edited by DiversityInc.

The post Diversity Leaders: 6 Things NEVER to Say About Disabilities appeared first on DiversityInc.

“Mental illness does not discriminate,” says Bob Carolla, director of media relations at the National Alliance on Mental Illness (NAMI). “It can strike anyone at any time.”

President John Quincy Adams and author Iris Chang (“The Rape of Nanking” and “The Chinese in America”) battled depression. Media giant Ted Turner and broadcaster Jane Pauley have been diagnosed with bipolar disorder.

There are about 57.7 million adults experience a mental health disorder in a given year and one in 17 lives with a serious mental illness, according to NAMI. And the cost of untreated mental illness in lost productivity, accidents, and high absenteeism and turnover to corporate America is steep—at least $105 billion in lost productivity annually, reports  U.S.A. Today on research by Harvard University Medical School.

• More than 200 million workdays are lost each year because of mental disorders (Center for Prevention and Health Services’ An Employer’s Guide to Behavior Health Services). Those with depression miss an average of 4.8 workdays, plus experience 11.5 days of reduced productivity, according to the Centers for Disease Control and Prevention.
• Employees who have depression—the most common mental disorder in the workplace, affecting up to 6 million men and 12 million women in the United States annually—cost companies $44 billion per year in lost productivity (The Journal of the American Medical Association).
• Nearly 20 million Americans suffer from depression, or about 10 percent of the population, according to National Institute for Mental Health.
• Absence, disability and lost productivity related to mental disorders cost employers more than four times the cost of employee medical treatment (Partnership for Workplace Mental Health’s A Mentally Healthy Workforce—It’s Good for Business)
• More than 90 percent of employees agree that their mental health and personal problems spill over into their professional lives and have a direct impact on their job performance. But 75 percent of employees who seek care for mental-health problems see substantial improvement in work performance after treatment (Mental Health America).

Moreover, “‘Parity’ with other illnesses generally cost businesses less than $1.35 per employee per month,” notes Carolla, who has lived with bipolar disorder for the past 20 years.

Which Racial Groups Are Most Affected?

While mental-health disorders impact everyone, some racial groups face more stigmatism than whites, explains Carolla. This can serve as a barrier to seeking treatment. Other underrepresented groups experience greater trauma and/or lack of access to quality care.

• The number of diagnosed cases of post-traumatic stress disorder (PTSD) for both veterans and active-duty servicemembers jumped 757 percent from 2003 to 2009, increasing from 1,632 to 14,000 (The Pentagon).

• About 70 percent of Southeast Asian immigrants to the United States who receive mental healthcare have symptoms of PTSD (National Asian American Pacific Islander Mental Health Association).

• American Indian/Alaska Natives have a higher rate of traumatic exposure, with a 22 percent rate of PTSD, versus 8 percent for the general U.S. population (U.S. Surgeon General)

• One-third of all Americans with a mental-health problem get care, and the percentage of Blacks receiving care because of lower incomes and other factors is one-half that of whites. According to the U.S. Surgeon General, one study found nearly 60 percent of older Black adults were not receiving needed services. “African Americans are also less likely to receive accurate diagnoses,” adds Carolla.

• Suicide among Black male tweens increased dramatically from 1980 to 1995. The rate of suicide among all children ages 10 to 14 increased 120 percent during that period, but the suicide rate for Black males in that same age group increased 233 percent (U.S. Surgeon General)

• In a survey of students at more than 150 high schools nationwide, Latino youth were significantly more likely (10.7 percent) than white students (6.3 percent) to report a suicide attempt. Latinas were more than twice as likely (14.9 percent) as Latino males (7.2 percent) to have reported a suicide attempt (USSG)

• Suicide is the third leading cause of death among 15- to 24-year-olds, and LGBTQ youth are up to four times more likely to attempt suicide than their heterosexual peers (The Trevor Project)

• According to a report by GLSEN, “Ongoing physical and verbal abuse isolate [LGBT] students from their peers, often leading to depression, low self-esteem and sometimes even suicide. One study showed that LGBT youth who experience harassment are 400 percent more likely than LGBT youth who do not to make serious suicide attempts.”

To educate the public about LGBT youth suicide prevention, GLSEN released a video featuring Sirdeaner Walker. Her 11-year-old son, who was being relentlessly bullied at school, committed suicide last year. Listen to her speak at the fifth annual GLSEN Respect Awards:

How Can Employers Help?

1. Communicate mental healthcare options: Employee-assistance programs (EAPs) can provide assessment and short-term counseling and make referrals for individuals at risk of mental disorders or facing trauma, such as divorce or the loss of a loved one. Unfortunately, too few employees take advantage of this benefit, so it’s important to “promote it and remind people of the support that’s available,” advises Carolla.

At Eli Lilly and Co., the company’s EAP is promoted on the corporate intranet and can “be used 24/7 even if someone feels stressed or has job burnout,” says Charlie McAtee, a communications consultant at Lilly. “Our employees or dependents can get up to three short-term counseling sessions at no cost.”

Employers that provide EAPs for mental health report reduced medical, disability and workers’-compensation claims as well as savings through improved performance, says Carolla. The return on investment in an EAP runs about $3 in savings for every $1 invested, reports Managed Health Network research.

2. Provide support: Daily stress can take a toll on an individual’s health, but support groups may help. “There’s been research that shows some people, not all, have better outcomes when facing depression when they have a support network of people they can lean on,” says McAtee. In March, Lilly re-launched Support Partners Program, an online resource (available in English and Spanish) for people with depression and those who care for them to help: recognize the signs/symptoms, find a doctor, create a support-partner relationship and keep track of progress.

Corporate-sponsored resource groups also offer both support and help to educate all employees about mental health. At Bank of America, employees started a military-support affinity group; at PricewaterhouseCoopers, a special-needs caregivers networking circle is available.  

3. Build awareness: The stigma associated with “emotional instability” prevents many people from seeking support or treatment. ButERG leaders can start a dialogue by collaborating with mental-health organizations such as NAMI and holding awareness events that dispel myths and allow speakers to share inspirational stories. “Use opportunities like Mental Health Awareness Month in May and Mental Illness Awareness week in October to encourage workers to take care of themselves and each other,” says Carolla.

4. Train managers: In addition to making sure supervisors know about mental-healthcare options, mental-health compliance issues must be integrated into diversity-training programs. Otherwise, companies risk liability. In Lizotte v. Dacotah Bank, et al. (D. N.D., 2010), an assistant vice president was medically cleared to return to work after recovering from a mental disorder. But upon his return, he was let go and subsequently sued. The court found for the plaintiff, ruling that the Americans with Disabilities Act prohibits employees from being discharged “due to accumulated myths, fears and stereotypes.”

5. Make accommodations: These can include flexible or adjustable work hours, a paced workload, modified job responsibility and “frequent guidance and feedback about job performance,” suggests Carolla. IBM has created a remarkable flexible work environment that helps all employees and is especially beneficial to parents, people with eldercare issues and people with disabilities.

6. Recognize mental-health ambassadors: Volunteers who share their personal stories must be encouraged and commended. Eli Lilly started a Welcome Back Awards program in 1998 to recognize the achievements of people nationwide who are fighting against depression and the associated stigma. Each year, a panel of experts selects honorees in several categories who are then each awarded from $10,000 to $15,000 to share with a nonprofit of their choice.

“They’re the unsung heroes,” says McAtee. “It’s a small way to say ‘thank you’ to the people on the front lines making a difference.”

Corporate Awareness Building: A Case Study

Angela Oakes learned she had major depression 15 years ago and has since been diagnosed with borderline personality, bipolar and attention deficit hyperactivity disorders, likely resulting from the sexual trauma she suffered at age 6. After a divorce and losing custody of her two sons, Oakes battled several downwardly spiraling years before making a slow and remarkable recovery

Today, not only does the 42-year-old woman stick to a structured routine of exercise, sleep and a healthy diet, but Oakes has found her calling in the mental-health movement: serving as an ambassador and sharing her inspirational story with organizations throughout Charlotte, N.C.

In honor of National Mental Health Awareness month in May, Oakes, an administrative assistant at Wells Fargo & Co., collaborated with the bank’s diversity leaders to orchestrate two companywide mental-health presentations, including a film on suicide prevention.

After Oakes’ recent presentation, she opened the floor to questions and “people were still talking 30 minutes later,” she says. “It’s really hard to explain that darkness to somebody … but you can’t be afraid to reach out and talk about it.”

The post How to Create a Mental-Health-Friendly Workplace appeared first on DiversityInc.

NOD Board Member and retired Lieutenant General Franklin Hagenbeck appeared on Fox News Tuesday evening, as well as several radio interviews, to discuss thereport’s findings.  

Selected Media Coverage:

• Watch LTG Hagenbeck on Fox News

• Listen to LTG Hagenbeck’s live interview on Arkansas Radio News Network this morning (transcript below)

• Read the American Forces Press Service’s report on the successful results of Wounded Warrior Careers on defense.gov.

Here is the transcript from LTG Hagenbeck’s live interview on Arkansas Radio News Network:

Yesterday’s event, which was graciously hosted at the headquarters of Disabled American Veterans, was attended by members of the press, NOD CEO Council members, partners, and funders, including representatives fromAetna, Lowe’s, PNC, Rockwell Collins, Sodexo, and the Rumsfeld Foundation.

Bob Steele (host): Joining us on the live line is Gen. Franklin Hagenbeck.  He is retired, led ground troops in Operation Anaconda on the Pakistan-Afghanistan Border after 9/11 and is on the Board of the National Organization on Disability. He is joining us to discuss NOD’s new report on helping wounded veterans on their path to employment.

Well, I’m a veteran and am always pleased to find out about programs that are helping veterans.

LTG Hagenbeck: Well the report has been terrific. We partnered with the U.S Army.  They asked us in 2007 to help devise a solution for disabled or wounded warriors that were coming back to the communities to find ways to get employment or get back to an educational training track. We work in three different locations around the country, and we give them a veteran-centered, if you will, approach, with attention from other veterans, most of them other disabled veterans. They (the other veterans) work with them as counselors, mentors, and coaches, to lead them through a very structured career planning, career preparation process and get them back on the pathway of employment.  We have a 70 percent success rate which translates into within 18 months of initial contact with these young men and women, they are back either in workforce or in school.

Bob Steele: I know that you’re going to share this report and encourage the veterans, VA, Department of Labor dept. to embrace it

LTG Hagenbeck: Yes, I am in D.C. today, we met with them yesterday.  We are working very closely with some key folks. We take this thing as both public and a private enterprise. We have a lot of employers out there, including Walmart from Arkansas, and other places around the country that want to employ veterans, and we are working through that with them, because we know not only do we have lots of returning veterans from the war but within the next couple of years, as we withdraw from Afghanistan, as we downsize the military its anticipated that one to two million will come back to the community. It’s anticipated that one out of three will have some sort have disability to include some of the invisible wounds like traumatic brain injury and some other things. The employers will have to accommodate some of those kinds of veterans to come back, in fact they are doing this today.

Bob Steele: Let’s go back to Walmart. You mentioned it – what do you think about their announcement yesterday?

LTG Hagenbeck I think it’s absolutely terrific that they (Walmart) are going to do that. We have some other companies doing that as well and we want to work of them. We think that the answer really lies within the communities to be able to reach out to the veterans that come back to Little Rock and other place in Arkansas and around the country, and that is the sort of partnership that we need to develop overtime to get the local community to working with employers when embrace to returning veterans.

Bob Steele:  General we appreciate you joining us this morning and what you’re doing with our veterans.

The post NOD Wounded Warrior Careers: A Model that Works appeared first on DiversityInc.

EEOC states that employers can discriminate in favor of people with disabilities or older workers. An Equal Employment Opportunity Commission discussion letter states that nothing in the Americans With Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) prohibits an employer from hiring only people with disabilities, or people over 40, or from discriminating against people somewhat over 40 in favor of people even older. The language of these laws cover only one-way discrimination; they do not cover those without disabilities or the more youthful. This is different from the other EEOC laws, which prohibit discrimination against any race, any religion, any national origin and both genders, equally; one cannot discriminate in favor of one over another. Employers should be cautious about any reliance upon this EEOC letter. It will only apply if the rejected party’s complaint is limited solely to being of a younger age or not having a disability. The moment the plaintiff claims that a preference for a person with a disability or an older person led to rejection of qualified people of a different race, sex, national origin, etc., then the EEOC will likely see a viable discrimination case. So the letter probably has only a very limited real-life application.

Age Discrimination

“He’s going to leave here at 62, and I’ll see to it!” It is difficult to defend an age-discrimination case when the discharged employee’s manager has made comments like the above. The manager also stated, “He’s been here long enough and he ought to go on Social Security.” The manager claimed the employee was terminated for poor performance. However, the court found that her overt statements about age undermined the poor-performance defense. Hale v. ABF Freight System, Inc. (6th Cir., 2012). A message from this case is that even if there might have been a performance problem, a manager can destroy any defense of a case by unwise, prejudicial statements. These may be made in angry frustration over real poor performance, but will overshadow any performance issue and lose the case.

Six-and-a-half years makes a difference. The ADEA protects older workers and applicants, including those older than others within the over-40 group. However, the courts recognize “approximately the same” age. Thus, a 60-year-old cannot effectively claim it was age discrimination to hire a 58-year-old, because they are approximately equal in age. The 6th Circuit has adopted a six-year range. A 57-year-old tech-college employee was fired and replaced by a 51-year-old. The employer argued that the case should be dismissed under the six-year “approximately the same” age rule. However, the court found a six-and-a-half-year age difference and ruled that there was enough difference in age to allow a prima facie ADEA case. Blizzard v. Marion Tech College (6th Cir., 2012).

Disability Discrimination

$4.85 million settlement due to discriminatory leave policy. A trucking company’s leave practice automatically terminated anyone unable to return to work after 12 weeks of medical leave, regardless of reason. This conformed with the Family and Medical Leave Act but violated the ADA, which requires consideration of a “reasonable amount of leave.” The EEOC brought suit due to the failure to consider disability exceptions to a rigid policy. In addition to the money, the settlement also included revision of policies, training of supervisors and employees, and appointment of a monitor—at company expense—to assure ADA compliance. EEOC v. Interstate Distributor Co. (D. Col., 2012). [For years the courts have ruled that the FMLA and ADA have different requirements, and simply allowing the 12 weeks for FMLA is not sufficient for ADA compliance. The courts have also routinely found fault with rigid leave policies and “no fault” (no excuse) attendance discharge policies which do not allow the interactive consideration process required by the ADA.]

Family and Medical Leave Act

School district has burden of proving that teachers did not work enough hours. A teacher was denied tenure at the end of his probationary period, though he received the highest possible ratings in almost all evaluation areas. The downfall was the “excessive absence” due to gall bladder surgery in the months before. He sued, claiming FMLA retaliation. The district defended by claiming the teacher had not worked the 1,250 hours necessary to be covered by FMLA—he was three hours short. However, he claimed to have regularly worked an hour a day outside of normal hours on items integral to teaching—preparing lessons, materials, etc. The court found that under the FMLA, the employer has the burden to “clearly demonstrate” that an employee did not work enough hours to be eligible. The court recognized that teachers often devote extra time “outside the contract negotiated hours.” Since the school district could not prove otherwise, the court found in favor of the teacher on the hours issue. Donnelly v. Greenburgh Central School Dist. (2nd Cir., 2012).

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

The post Reverse Discrimination? EEOC Allows Bias in Favor of People With Disabilities, Older Workers appeared first on DiversityInc.

Wlodkowski, who started his job at Comcast this spring, is still formulating his strategic plan, but he knows it will be aimed at making the company’s products useful for and available to customers with disabilities across the spectrum of the Comcast business, from set-top boxes to mobile applications, software, downloads and phone services.

Noting that Comcast, one of DiversityInc’s 25 Noteworthy Companies, is the first in the cable industry to create this position, Wlodkowski says, “Comcast executives realized there was an opportunity to really address the market and bring in a dedicated subject-matter expert.”

Specifically, previous roles include leading accessibility at AOL and at WGBH, where he worked on descriptive video for blind and visually impaired people and implemented voice-guided navigation on DVD menus. These roles have given him a great knowledge base for his new position.

“The biggest challenge for developing products for people with disabilities is that they are designed by people who aren’t actually using them, who don’t have disabilities. … As I tell my friends and colleagues in the disability community, now they have someone on the inside,” he says.

Out There in the Real World

Blind since birth, Wlodkowski grew up in Southington, Conn., the youngest of four brothers.

“Having a blind child as the youngest meant my mother wasn’t so protective,” he recalls. “She put me out there in the real world. I had to take out the trash just like everybody else. My brothers never let me play the blind card, although they would try to sneak the food bowl past me.”

Mainstreamed in public schools, he was in the marching band in high school and was the drummer for a rock band, leading to work in radio after college. He thought he wanted to be on the air, but when asked to work on technology for people with disabilities, Wlodkowski found his niche.

Today, he’s married with a 14-year-old son. And he appreciates how much technology has improved his life. “My son is amazed at how I can use voice-over technology on my iPhone,” he says.

The D&I Factor

The hiring of Wlodkowski is part of the company’s overall drive to be a leader in the diversity-and-inclusion space, says Maria Arias, executive director, Diversity & Inclusion at Comcast.

“There’s clearly a focus on employees and customers with different abilities. He’s our resident expert with live, hands-on experience and connections with organizations,” she says, citing not just product accessibility and workforce diversity but supplier diversity as well, particularly the certification of the US Business Leadership Network (USBLN) for suppliers owned by people with disabilities. USBLN certification is required for companies citing supplier diversity with people with disabilities on The DiversityInc Top 50 Companies for Diversity survey.

Wlodkowski and Arias also both work with Comcast’s Abilities Network for employees with disabilities and their allies to create an accessible and inclusive workplace and encourage the hiring and promotion of people with disabilities.

Emerging Market

But Wlodkowski’s primary duties are marketplace focused.

“My first steps are to prioritize where we are going to focus these efforts—the next generation of set-top boxes, product development, the engineering team, and the roadmap for products from XFINITY TV that connect the home,” he says.

Adds Arias: “For the past year and a half, we have focused our efforts on building a year-over-year diversity-and-inclusion plan. We are becoming a leading company in the space, and Tom’s presence here is based on that.”

The post Comcast’s Tom Wlodkowski: Leading the Company to New Levels of Accessibility appeared first on DiversityInc.

Q. Why are companies making an effort to track suppliers owned by LGBT people or people with disabilities? Is supplier diversity really innovative or is it just politically correct?

A. Over the last two years, DiversityInc has seen more than a 10 percent increase in the percentage of spend with LGBT-owned businesses, and more than a 25 percent increase of spend with businesses owned by people with disabilities.

Innovative companies know that in order to be competitive and relevant in the marketplace, they must understand and solicit emerging-market customers such as LGBT people and people with disabilities, as well as allies to these groups. In order to do this, they are seeking more partnerships with these suppliers.

Companies want their customer bases to equal their supply bases. We know that the demographics of our country and global reach are changing and a corporation’s supply base is increasingly diverse. The LGBT population has been estimated by many sources to be about 10 percent of the total population, but its reach, through relatives and friends who are supportive, is considerably greater. In the United States, about 12 percent of the population has an ADA-defined disability. As the population ages, this figure is expected to increase.

Supplier diversity is not a social issue but an emerging-market demographic that will add to the corporate bottom line. Businesses seeking to enhance their supplier-diversity programs through partnerships with LGBT-owned businesses or businesses owned by people with disabilities should consider becoming members of either the US Business Leadership Network (USBLN) or the National Gay & Lesbian Chamber of Commerce (NGLCC). Both groups certify small businesses and allow larger corporations to interact with these suppliers.

–Amber Aboshihata, Director of Data Analysis, and Adriene Bruce, Vice President of Consulting

The post Should You Track Suppliers Owned by LGBT People or People With Disabilities? appeared first on DiversityInc.

What should you NOT say to people with disabilities? Get lessons from the experts.

“It is not so much about etiquette. … Words that speak to a person’s medical condition are not appropriate, and it is important to put the person first: a person with a disability versus a diabetic, quadriplegic, et cetera,” says Deborah Dagit, a disabilities expert and Vice President and Chief Diversity Officer of Merck & Co. (No. 16 on the DiversityInc Top 50), who was born with Osteogenesis imperfecta (brittle bone disease), is four feet tall and uses a wheelchair at work to enhance her mobility.

When all else fails, it’s OK to ask respectfully, says Dagit, who prefers to be called a “little person.” “I am proud to be associated with this community, but others who are diminutive may think this sounds too much like they are part of a daycare center,” she explains. “I am also not comfortable with being described as wheelchair-bound or confined: My wheelchair and motorized scooter are enabling tools in my life and I am neither tied into them nor unhappy about using them to be safer and more comfortable.”

You Said WHAT?!

Culturally insensitive terms include “handicapped,” “retarded” and “slow,” and even “compliments” such as “but you look so good.”

Executives from the National Organization on Disability say the best advice is to use common sense: “If you wouldn’t say it to your boss, you shouldn’t say it to a person with a disability.”

We’ve compiled a list of real-life conversations that happened in the workplace to serve as examples of what not to say to people with visible and/or invisible disabilities.

1. “How do you go to the bathroom?”

“Yes, this still gets asked,” says Will Roberts, Program Manager at NOD, who uses a wheelchair. “Unfortunately, potty talk doesn’t end in elementary school. Anything to do with bodily functions is out of line, just as it would be with any other co-worker.”

2. “I don’t even think of you as a person with a disability.”

Meg O’Connell, Vice President of Corporate Programs at NOD, gets this comment a lot when she discloses that she has epilepsy. This is the equivalent of saying, “I don’t think of you as a Black person, or Asian, or Hispanic, or gay, or a woman,” says O’Connell. “This is a comment that really doesn’t add value.”

O’Connell advises that when someone is disclosing a disability, the best response is to ask if the person needs anything or to thank them for disclosing such personal information.

3. “Can you still have children?”

This is not an appropriate question to ask any co-worker. The National Organization on Disability says you can simply ask as you would any other co-worker, “Are you married?” or, “Do you have children?”

4. “If the organization’s willing to hire someone who looks like you, it’s more caring than I thought.

“Shortly after being hired for a visible leadership role in my company, I had several colleagues tell me this with tears in their eyes. What do you say to a comment like that?” asks Dagit. “‘Thank you’?”

5. “Tell me what he/she might want/need?”

“My father-in-law had Parkinson’s disease, and this would happen a lot when we would be out to dinner: The waiter or waitress would invariably ask, ‘Do you know what he wants?’ We would usually just say, ‘Why don’t you ask him?’” says O’Connell.

Always speak directly to the person with a disability, and if there is something the person needs, he/she will let you know, O’Connell says.

6. ”Oh, I’m so sorry,” or, “It must be bad for you.”

“Most people with disabilities have learned to live very well with their disability and do not need pity or sympathy,” says NOD Director of Research and Public Funding Kate Brady. “Offering your sympathy on what you believe to be a struggle or difficult for a person with a disability may not be—it may just be how they get things done.”

7. “When will you get better and not have to use a wheelchair/cane, take medication, et cetera?”

People tend to associate orthopedic equipment, tools and treatments as a limiting stigma of a person’s disability rather than a method of well-being and productivity. After one bad fall and subsequent medical leave, Dagit made the choice to start using a wheelchair or motorized scooter at work.

“On many occasions people expressed concern about my health and wondered when I would get better,” she says. “They associated using a wheelchair with not recovering, although I explained many times I am in excellent health and feeling better than I did before I got hurt—it helps me better manage my energy and prevent injuries.”

8. ”Wow, you can drive!” or, “How did you do that?”

Expressing amazement and congratulations for achieving everyday tasks is not appropriate, explains Roberts. “People with disabilities have the same wants and needs as anyone else, and if they can, they will find a way to get what they need and are uncomfortable with praise,” he says.

9. “What, are you retarded?”

Intellectual insults can be common workplace banter. However, using a slur to comment on someone’s abilities is offensive, not to mention insensitive, as one in five people have a disability. Think before you speak.

Pay It Forward: Inclusion at Work and Home

Additionally, Dagit notes that employees with children should pay their diversity training forward at home. “I usually choose to work from home on Take Your Child to Work Day. … It is exponentially more challenging when a colleague’s child makes an awkward comment and the parent reacts with horror,” she says.

Parents should let children ask questions about people who are different, but they should do so quietly—and they should never point or stare for a prolonged period. “The worst possible reaction is to punish the child,” Dagit says, “as they then associate people who are different with something bad that they cannot talk about.”

For more things not to say to people with disabilities, read 7 Things NEVER to Say to People With Disabilities.

Also read Things ‘to’ Say to People With Disabilities for advice on how you can dispel stereotypes and promote inclusion in the workplace.

For more on inclusive best practices read:

What Is Possible for People With Disabilities?

How Recruiting People With Disabilities Solved Toyota’s Costly Problem

You Can Get Fired During FMLA Leave

Obesity Is a Disability, Says EEOC 

The post ‘How Do You Go to the Bathroom?’ ‘Can You Still Have Children?’: Things NOT to Say to People With Disabilities appeared first on DiversityInc.

The Vanderhorsts were then escorted by airport personnel to a flight home on United Airlines and were forced to sit in the very last row of coach away from other passengers. They were not refunded for their upgraded seats.

Watch this video of the incident, which the mother, Joan Vanderhorst, recorded on her cell phone. Can you find all of Bede’s distracting behaviors such as “running around the gate area” that made him a “flight risk,” as an American Airlines spokesperson claims?

Read Disability Employment Awareness Month Facts & Figures for information on this traditionally underrepresented group.

The post American Airlines Employees Humiliate Family of Boy With Down Syndrome appeared first on DiversityInc.