Articles Posted in Discrimination and Unlawful Harassment

More eagerly anticipated that the premiere of Paul Blart: Mall Cop 2, yesterday, the EEOC released its new proposed rules on wellness programs.

Although, based on the Paul Blart reviews, hemorrhoids too may be more eagerly anticipated. No strikethrough on the last sentence. Weird.

But, if you want to have an employee wellness program that complies with the Americans with Disabilities Act, here are five things the EEOC wants you to do…  Continue reading

Geez! What’s gotten into me this week? Even by The Employer Handbook editorial standards, which are lower than Title VII’s religious accommodation undue hardship test.

[I’ll be here all week. Sorry.]

First, a 1000+ word blog post on ADA telework, followed by two cheeky posts on bad interview questions and the FMLA. So, naturally, this builds up to a Thursday post about oral.

As I resist every urge to cheapen this further by resorting to silly puns and other double entendre, allow me to set the stage for you: Continue reading

Kinda like this, but different.

According to a recent survey from CareerBuilder.com, 1 out of 5 employers failed to read my 2011 blog post about interview questions to avoid, have asked a question in a job interview only to find out later that it was illegal to ask.

Indeed, the poll indicates that only 1 in 3 hiring managers recognized that questions, such as the ones listed below, should be off-limits:

  • What is your religious affiliation?
  • Are you pregnant?
  • What is your race, color or ethnicity?
  • How old are you?
  • Are you disabled?

Whether you’re in the 20% listed above, the 1 in 3 below that, or just need a refresher on hiring inquiries that are off limits, check out my post, “What would Kenny Powers do? Interview questions to avoid.”

If you’re in a rush, I’ll hit you with the punchline and save you the trouble of reading 1,000+ words of blog post:

Telecommuting may be a reasonable accommodation under the Americans with Disabilities Act, except where regular attendance is an essential function of the job.

For those of you with a few minutes to spare, today’s post springs from a case, a saga really, involving the the US Equal Employment Opportunity Commission and Ford Motor Company. And since I have a few good employer takeaways at the end — hey, don’t skip all the way through! — today’s post is worth the time. Continue reading

Exactly one month ago, I addressed what many consider to be the elephant in the room when it comes to transgender employees: bathroom use.

On Wednesday, EEOC Commissioner Chai Feldblum fired off a series of tweets (1, 2, 3, 4, 5, 6, 7) to lawyers representing employers and employees. Below (and here) is the one she sent to my side of the bar:

By extension, this tweet is intended for companies as well.

The tweet links to an article from Buzzfeed’s Chris Geidner. Mr. Geidner addresses a recent EEOC decision which underscores the risks employers face when they play bathroom police for transgender employees:

In a decision dated April 1, the Equal Employment Opportunity Commission found that Tamara Lusardi “was subjected to disparate treatment on the basis of sex” — a violation of Title VII of the Civil Rights Act of 1964 — while working as a civilian employee at the Army’s Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.

Lusardi was forced to use a single-user restroom and not the women’s restroom after transitioning in 2010. On the occasions when she used the women’s restroom — when the single-user restroom was out of order or being cleaned — she was confronted by a supervisor. In addition, a supervisor repeatedly, and in front of other employees, referred to Lusardi by her former male name and with male pronouns.

While the EEOC’s decision involves a federal employer, and does not bind private employers, don’t think for a second that the EEOC would hesitate to pursue similar claims in the private sector. Indeed, it has. We’ve also seen a sex discrimination lawsuit by a former Sak’s transgender employee. That case settled.

As I noted in my prior transgender bathroom post, this issue is real. Employers need to educate their employees and train their managers that respect in the workplace extends to transgender employees too.

Where do I find these cases, you ask? Well, I sold my soul, and a stack of Billy Ripken baseball cards, to the devil a long time ago. I ain’t telling.

But seriously, this case isn’t so much about the particular facts…

  • White employee tosses banana peels at work
  • Black employees complain of racism
  • Investigation ensues
  • White employee is forced to resign

…as it is about making sure that all involved know why an employee is being fired, and can articulate those reasons consistently. Continue reading

Happy Monday, everyone.

Glad to see I didn’t break some of your content filters on Friday with my filthy NLRB post. But, hey, just another day in the interesting life of an employment lawyer / HR professional, amirite?

Today, I bring you a very simple lesson, courtesy of the Third Circuit Court of Appeals, from right here in my backyard. That lesson is this:

When you terminate an employee, do not write “Health Reasons” on the employee’s termination form. Continue reading

JetBlue A320 at Orlando

One week ago today, a Germanwings plane carrying 150 people crashed and killed everyone on board. Since then, there is mounting evidence that the co-pilot, who was in great physical shape, was also suffering from mental illness which caused him to deliberately steer Flight 9525 into the French Alps.

Why didn’t Germanwings taken preventative steps? Apparently, the co-pilot hid his mental illness from his employer.

Three days after the Germanwings catastrophe, a former JetBlue airline pilot, who was locked out of the cockpit and had to be subdued by passengers, filed this lawsuit in federal court against his former employer.  He claims that the airline was negligent because it knew or should have known that he was “physically and mentally unfit to fly.” Continue reading

I intended to begin the week with a post about a company’s legal obligation to predict — yes, predict — an employee’s mental fitness for duty. Then, I started on a brief tangent on Ellen Pao, the former partner of a Silicon Valley venture capital firm, who just lost a highly-publicized gender discrimination claim against said former employer.

And a few hundred words later, that brief tangent became its own blog post — this one. (If you want a wild lawsuit brought by an airline captain who claimed that his former employer was negligent by failing to predict that he’d have a manic in-flight episode, come back tomorrow). Continue reading

But, I’ll do my best to sort it out for you.

Let’s assume that you have a pregnant employee who tells you that she has a lifting restriction. In the past, you have accommodated employees with disabilities who had similar lifting restrictions. You’ve also done the same for folks who got injured on the job and others who lost their Department of Transportation (DOT) certifications.

If you don’t provide the same accommodation to the pregnant employee, have you violated the Pregnancy Discrimination Act?

Continue reading