Oil StainsTo receive the protections of the Americans with Disabilities Act, an individual with a disability must be qualified to perform the essential functions of the job with or without reasonable accommodation. Absent undue hardship, an employer must provide a reasonable accommodation.

So, you’d think that the ADA would require a link between a requested accommodation and an essential job function. Well, not so much according to this recent decision from the Fifth Circuit Court of Appeals, a case in which the Attorney General’s office refused to accommodate one of its attorneys who requested a parking spot close to the office.

Noting that the text of the ADA specifically contemplates “making existing facilities used by employees readily accessible to and usable by individuals with disabilities,” without any indication that an accommodation must facilitate the essential functions of one’s position, the Fifth Circuit held that the ADA does not require a nexus between the requested accommodation and the essential functions of the position.

Putting all that aside, what bothers me here is that what the plaintiff was requesting on the difficulty scale strikes me as about a 2 out of 10. There are certain accommodation requests which, to me, are no-brainers; e.g., an orthopedic office chair for a bad back, a screen magnifier for vision issues, a wrist rest for carpal tunnel. A closer parking spot for, in this particular case, osteoarthritis of the knee, is hardly worth a fight.

When an employee comes to you with an accommodation request, maybe you should think about the value of the accommodation versus the cost of litigation when you deny it.

(h/t Employment Law Lookout)

Readers: A brony is a male fan of the children’s television show My Little Pony.

(This is the part where you let everything that you’ve read thus far sink in, as you watch this clip, close your office door, and laugh hysterically. Go ahead. It’s ok).

According to Gawker, the brony posted to Reddit that his co-workers gave him a raft of crap for setting his office computer screensaver to Applejack, a My Little Pony character.

(Go ahead. Really, it’s ok to laugh).

After getting called into his boss’ office and told to change his screensaver because, you know, it’s creepy as all hell when a man in his 30s has a My Little Pony screensaver on his office computer, the former employee relented.

That is, until a few months later when, on Take Your Child to Work Day, the brony saw that the boss’s daughter was wearing a Rainbow Dash t-shirt, and commented to her that he likes the shirt. (Rainbow Dash is also a My Li— yeah, you get the idea).

Eventually, the brony claims he was was fired for being a brony, but not before calling HR to obtain some answers surrounding his termination.

Could you imagine being on the receiving end of that call? I bet there’s nothing in that PHR certification of yours to prepare you for that one, is there?

Anyway…

Legal “Brony discrimination” or unlawful sexual stereotyping?

There is a serious point to this post. 

*** searches desperately for serious point to an otherwise gratuitous post ***

As I’ve noted before, Title VII does make it unlawful to stereotype based on a person’s gender non-conforming behavior. So, taking the brony’s version of the facts as true, would he have been fired if he were a woman? I’d like to think yes and, therefore, what happened here was perfectly legal. Because, damn, what grown person — male or female — would think it professional to have a My Little Pony screensaver at work.

But, then again, what do I know? I have an Allen Iverson fathead in my office and heard about this brony story listening to Howard Stern on the ride back from speaking at an HR conference yesterday. So that, plus this blog, makes me a bit of an enigma and probably the wrong person to ask.

What do you think? Did the brony’s former employer break the law? Or was the employer justified in firing the brony? Let me know in the comments below.

Cut the music.

A little over a year ago, I wrote here about a steel worker named Kerry Woods. Unfortunately for Mr. Woods, he was on the receiving end of a constant barrage of “raw homophobic epithets and lewd gestures” from his supervisor. Notwithstanding, the Fifth Circuit Court of Appeals tossed out a $500K jury award for Mr. Woods, holding that Mr. Woods’s same-sex sexual harassment claims failed because he failed to satisfy the Supreme Court’s test in Oncale v. Sundowner Offshore Services, Inc.

Oncale was another same-sex harassment case involving employees at an oil rig. In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:

  1. credible evidence that the harasser was homosexual;
  2. evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or
  3. comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.

As Mr. Woods failed to satisfy any of the three Oncale elements, the Fifth Circuit overturned the jury award in his favor. This led me to dork out by likening employment law to wrestling develop the Ravishing Rick Rude / Adorable Adrian Adonis test: “Put simply, if the plaintiff is stereotypically masculine, like Rick Rude, a theory of sexual stereotyping will fail and so will a claim under Title VII.”

Last week, the Fifth Circuit Court of Appeals (here) reconsidered, reversed itself and, in doing so, gave my theory the rude awakening. First, it held that a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping. Further, it recognized that the Supreme Court did not intend for its Oncale three-part test to be exclusive; but rather, illustrative. That is, to prevail on a same-sex sexual harassment claim, a plaintiff need only show that his harasser stereotyped him as “insufficiently masculine.”

The recent opinion provides further reason for employers not to tolerate offensive remarks of any sort in the workplace.

Now, hit the music.

.

workanxiety.png

Let me tell you about a teacher in South Dakota. In 2010, she received a letter communicating concerns about her performance. Subsequent evaluations of the teacher’s classes noted several deficiencies. So, the school placed the teacher on a performance improvement plan.

It was right around this time that the teacher met with a physician’s assistant, who diagnosed the teacher with “anxiety and depression, likely stemming from her concerns about possibly getting fired.” 

So, at the teacher’s request, the physician’s assistant wrote a letter to the school seeking a laundry list of accommodations, including:

  • restructuring her job to include only essential functions if stressful situations continue to negatively impact her
  • encouraging her to walk away from stressful confrontations with supervisors; and
  • providing coverage if she becomes overwhelmed with stress from the work environment and needs to leave

The school responded to the full list of accommodation requests, agreeing to provide some, rejecting some, and requesting clarification as to others.

A few months later, after the PIP ended, the school recommended against renewing the teacher’s contract, delivering to her a “notice of his intent to recommend nonrenewal.” Shortly after receipt of the notice, the teacher took a medical leave of absence for the rest of the school year, after which her contract was not renewed.

The teacher then sued for discrimination under the Americans with Disabilities Act.

What is a disability under the ADA?

The ADA requires employers to accommodate a disabled employee if, doing so, will allow that employee to perform the essential functions of her position without resulting in undue hardship for the employer. An employer who fails to discharge these obligations has violated the law. 

However, to make out a “failure to accommodate” claim, the employee most first establish that she has a “disability.” One example of a disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities of such individual. Major life activities include, but are not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, . . . learning, reading, concentrating, thinking, communicating, and working.” 

This includes conditions arising from the fear of possibly getting fired.

The burden of proving a disability is rather light. But could it even include anxiety and depression about possibly getting fired? According to this recent federal court opinion, yes:

When asked what activities of daily living Huiner [the teacher] was unable to perform, Buman [the physician’s assistant] stated she was unable to maintain her nutritional needs, had difficulty caring for her children, and had sleep pattern deficits. The medical records from Huiner’s appointments with Buman correspond to Buman’s testimony. Huiner’s difficulty maintaining her nutritional needs is further evidenced by her significant weight loss during that time period; she lost over thirty pounds from September 7, 2010, to June 29, 2011. Based on this evidence, the court finds Huiner has come forth with sufficient facts to make a prima facie showing that her anxiety constitutes a disability under the ADA. This is especially the case when considering the relaxed standards imposed under the ADAAA for determining what constitutes a disability.

Hear that? It’s the sound of litigation floodgates opening. 

And my pockets getting fatter.

yankeestadium.jpgYou’re probably thinking to yourself, “What kind of person cares that much about going to a baseball game that he would risk losing his job over it?”

The guy who hasn’t missed a Yankees home game for 38 years.

According to this CBS2 New York Report, Joseph Neubauer, who hadn’t missed a Yankees home game since the 1970’s, was fired from his position because he didn’t want to mess up an attendance streak at Yankee Stadium.

It all went down last year. Mr. Neubauer, who worked for the City of New York, was scheduled to attend a night game at Yankee Stadium. Unfortunately, the game was rained out and rescheduled for the following afternoon. Mr. Neubauer, who had run out of paid time off, opted to skip work to keep his attendance streak alive.

And, for that, he got fired.

Now, before you start tuning up the violin, the CBS2 story further notes Mr. Neubauer’s attendance issues went far beyond one unexcused absence:

A Judge suspended him for 60 days without pay in 2011 for going to Phoenix for the All-Star game even though his vacation request had been denied.

A year prior to that Neubauer had been suspended for 25 days after calling out sick for 13 Yankee games. Despite his problems in the past, Neubauer said he just wants his job back.

Well, at least now, nothing stands in the way of Mr. Neubauer attending the Yankees’ playoff games this season. 

Oh…

righttowork.jpgBefore I get into the this new bill, let’s clear up a popular misconception: David Hasselhoff lives in my basement rent-free right-to-work means that an employee can be fired at any time for any non-discriminatory reason. No, dudes. That’s called at-will employment.

Right-to-work laws give individual employees in a unionized workplace the right not to join or financially support the union. 24 states, plus Guam, have passed right-to-work laws. Absent a right-to-work law, all employees in a collective bargaining unit must join the union and pay union dues.

And Pennsylvania could be next.

Here is a copy of the Freedom of Employment Act. This bill, if passed, would prohibit the following conditions of employment:

  1. Membership.–No person shall be required to become or remain a member of a labor organization as a condition of employment or continuation of employment.
  2. Abstention from membership.–No person shall be required to abstain or refrain from membership in a labor organization as a condition of employment or continuation of employment.
  3. Dues, fees and charges.–No person shall be required to pay or refrain from paying any dues, fees or charges of any kind to a labor organization or to a charity or other third party in lieu of the payments to a labor organization as a condition of employment or continuation of employment.

Any violation of the law would be considered a misdemeanor of the third degree, punishable by a fine of not more than $1,000 or up to six months in the hoosegaw, or both. Each day of a continued violation is a separate offense.

Governor Corbett has said that he would sign right-to-work legislation if it crossed his desk.

Earlier this year, six Republican state representatives each introduced right-to-work variants, none of which gained any traction.

Here’s the video:

//www.youtube.com/watch?v=Ew_tdY0V4Zo

Here’s the question:

<a href=”http://polldaddy.com/poll/7438559/”>Would you hire this employee?</a>

Would you hire this woman? Tell me why or why not in the comments below.

UPDATE: What’s good for the goose, is good for the gander.

(h/t Mashable.com)

The Golden RuleLast week, I talked about reasonable accommodations under the Americans with Disabilities Act, and the importance of having an open-minded, respectful conversation with a disabled employee who requests an accommodation to perform the essential functions of the job. Ultimately, as I’ve discussed before, the employer (and not the employee) may insist upon a particular accommodation as will enable the employee to perform the essential functions of his job.

But is that always the best move?

Consider this recent case, in which a diabetic service technician requested that his employer provide him with an air conditioned vehicle to keep his insulin cold. Providing an air conditioned vehicle seems pretty reasonable to me. Instead, however, the company had a policy, which allowed all employees “take breaks at restaurants or other establishments to cool off on hot days.” Thus, the company claimed that this policy would be a accommodation and; therefore, the employee should not have refused it.

And maybe it is reasonable. Or maybe the policy, as applied to this diabetic service technician is unreasonable because (1) he cannot wait to take breaks as long as other employees are able to; (2) there might not be places to cool off close to a particular assignment location; and (3) accidents or constructions may delay reaching an air-conditioned place. That’s what a jury will have to decide after the court denied the defendant’s motion for summary judgment on the plaintiff’s failure-to-accommodate claim.

So, just because an employer has an existing policy or, otherwise, can insist upon a particular accommodation, doesn’t mean that it should. Instead, when receiving an accommodation request, imagine that it’s coming from a member of your family. If the accommodation you propose is something that you wouldn’t dream of providing to a family member, then you should probably come up with something else.

getwell.png

Rather, it’s just being — oh what’s that word — ‘human.’

Like in this case, in which a supervisor with breast cancer was disciplined — yes, folks, you can reprimand an employee with an ADA “disability” or FMLA “serious health condition” — for allegedly calling other employees names such as “idiot,” “moron,” and “dumbass;” and also striking a few of them on the head for good measure. The supervisor-plaintiff was then demoted and given a pay cut commensurate with the other deputy clerks at her position. When told of the demotion and pay cut, her boss also mentioned that “she should probably focus on her health rather than worry about the stress of supervising people.”

My heavens! I’ve caught the vapors. A boss who expresses concern for the welfare of his employees. Sounds like a terrible place to work!

Without the sarcasm, the court determined that suggesting to the supervisor-plaintiff that “she should probably focus on her health” is not disability discrimination:

The fact that Defendant Brown mentioned Plaintiff’s ability to focus on her health as a potential positive side effect of no longer having a supervisory role does not require the conclusion that Plaintiff’s FMLA leave or her disability were reasons for her demotion. “[G]eneral, vague, or ambiguous comments do not constitute direct evidence of discrimination because such remarks require a factfinder to draw further inferences to support a finding of discriminatory animus.” As pointed out by Defendants, this general statement is just as likely to be construed as conciliatory as discriminatory.

We don’t have to walk around the office on eggshells, worried that if we ask a co-worker with a sniffly nose how she’s feeling, that she’s going to document the comment and later use it against us in a subsequent discrimination action. Although, I’ve been known to give the stink-eye to co-workers who read my blog posts and ask me how much I has to drink the night before.

Look guys, who among us, doesn’t enjoy two Baybreeze boilermakers while blogging in bed after a long day? Pardon me for being civilized.

Now, if you’ll excuse me, I have some Keeping Up With The Kardashians to watch.

You’re about to have a reduction in force and you’re going to offer a severance package to those effected: one week of salary for every year of service in exchange of a full release of all claims. If one or more employees affected by the reduction in force is 40 years of age or older, you’d better make sure that your release language complies with the the Age Discrimination in Employment Act (“ADEA”), as amended by the Older Workers Benefit Protection Act (“OWBPA”). Unlike other general releases, by statute, an ADEA/OWBPA release must have certain required elements for it to be effective.

burningmoney.jpgOne employer, in this recent case, learned the hard way. The employer RIFed the plaintiffs, but failed to inform them “about the group of employees who were being terminated as a result of the reorganization or about employees who were not selected for termination,” as the law requires. Consequently, the age discrimination release that the plaintiff signed wasn’t worth the paper it was printed on.

Kinda like this blog.

If you are going to lay off anyone over the age of 40, to obtain a release of potential age discrimination claims, you must obtain a knowing and voluntary waiver. This means, at a minimum, your release must include the following six elements:

  1. it must be easy to understand;
  2. it must refer to claims under the ADEA/OWBPA
  3. the employee cannot waive rights or claims that may arise after the date the waiver is executed;
  4. the employee waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled (i.e., you have to incent the employee to agree to the release);
  5. the employee is advised in writing to consult with an attorney prior to executing the agreement; and
  6. the employee has at least 21 days (45 days for a RIF) within which to consider the agreement, and 7 days after signing the agreement in which to revoke it.

Plus, in a RIF situation, the employer is required to provide the following information to the
affected employees: (a) any class, unit, or group of individuals covered by such RIF, any eligibility factors for such RIF, and any time limits applicable to such RIF; and (b) the job titles and ages of all individuals eligible or selected for the RIF, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the RIF.

Unless, you’ve done this several times before, consider engaging an employment lawyer to walk you through the process. Otherwise, that severance you pay may be used to subsidize a subsequent age discrimination claim against your company.

For more on age discrimination releases, read the statute and review the EEOC guidance.