The Employer Handbook Blog

You're thinking I should have led with the strip club, eh?

On Wednesday, an Iowa jury awarded $240,000,000 to a group of 32 men with intellectual disabilities, whom it found had been discriminated against in violation of the Americans with Disabilities Act. According to this EEOC press release, the verdict works out to $2 million in punitive damages and $5.5 million in compensatory damages for each plaintiff, and follows a September 2012 order from the district court judge awading the men $1.3 million for unlawful disability-based wage discrimination, thus making the total judgment $241.3 million.

And then there's "THE CASE OF THE ITSY BITSY TEENY WEENY BIKINI TOP V. THE (MORE) ITSY BITSY TEENY WEENY PASTIE." More First Amendment than employment law. But, nonetheless, right in my wheelhouse.

And, you'd think that, with a title like that, Meyer made it up. 

Yeah, you'd think that, wouldn't you?

Today we have a guest blogger at The Employer Handbook. It's Noah Kovacs. Noah has over ten years experience in the legal field. He has since retired early and enjoys blogging about small-business law, legal marketing, and everything in between. He recently purchased his first cabin and spends his free time remodeling its kitchen for his family. Twitter: @NoahKovacs

(Want to guest blog at The Employer Handbook? Email me).

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Continue reading "GUEST POST: How Tech Creates Add'l Challenges in Today's Workplace" »

To defend against a claim of discrimination, an employer can argue that it fired an employee because it honestly believed that the employee did "X." And, as long as "X" isn't discriminatory, the employer prevails. This is the honest belief doctrine.

So, can an employee flip the "honest belief doctrine" on its head to show that an employer's purported legitimate business reason for disciplining an employee was actually pretext for discrimination?

Find out after the jump...

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Continue reading "An employee using the "honest belief" doctrine in a bias case? As if!" »

You run a delivery service using large trucks and require that drivers be qualified by the Department of Transportation. Although your facility managers aren't often behind the wheel of the big rigs, you nonetheless require that they too be DOT certified.

One day, a manager with a disabling eye injury comes to you and asks for an accommodation under the Americans with Disabilities Act: to be excused from driving trucks so that he may focus on "managing."

Assuming that no other reasonable accommodation exists, must you give it to him?

According to the Eighth Circuit Court of Appeals in Jeff Knutson v. Schwan Food Company (opinion here), that's a big N-O, good buddies.

Even though your manager rarely has to drive, job functions that aren't performed that often can still be "essential" functions of the job. "Essential functions" are "the fundamental job duties of the employment position the individual with a disability holds." What is (and is not) an essential function can depends on several factors the court espoused:

Evidence to consider in this determination may include: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the current work experience of incumbents in similar jobs.

In your case (as in Knutson -- I shamelessly ripped the facts from Knutson. It was easier than blogging about Ray J's new song. Is it a Kimye diss track? Who knows? Who cares? I want those last three sentences back...), if you've got a good written job description, your judgment is sound, and the experience and expectations of all managers is that they need to get behind the wheel from time to time, then you're defense that driving is an essential job function is solid.

So, take a look at those job descriptions and talk to your employees about what they do on a day-to-day basis. And update those job descriptions accordingly.

- "Mr. Dorfman?"
- "Hello!"
- "0.2... Fat, drunk and stupid is no way to go through life, son."

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- "That's Left Ear. Demolition and explosives. When he was ten, he put one too many M-80s in the toilet bowl. Lost the hearing in his right ear. He's been blowing stuff up ever since."

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Good start to a blog post, amirite? Now, allow me to dork this up with two employment-law questions:

1. If Flounder were Dean Wormer's employee (rather than just a student at Faber College), would Wormer's calling him "stupid" mean that Faber regarded Flounder as "disabled" under the Americans with Disabilities Act?


2. Since Left Ear is deaf in one ear, would he qualify as "disabled" under the ADA should he return from his Spanish villa and seek gainful employment in the USA?

Tough questions. But here, at the ole Handbook, when the going gets tough...[wait for it]...The tough get goin'! Who's with me?

Let's do it!!!! (after the jump...)

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Continue reading "Are Flounder from Animal House and Left Ear from The Italian Job "disabled"?" »

Unquestionably, when it come to tackling the Americans with Disabilities Act, one of the biggest issues affecting the workplace and accommodating disabled employees is providing leave as a reasonable accommodation. Anecdotally, a question that plagues most employers is just how much leave is enough?

We know that an indefinite leave of absence is not a reasonable accommodation. But, what about when an employee takes one leave, after another, after another.

After the jump, I'll address the big question: when is enough enough?

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Continue reading "Leave as an ADA reasonable accommodation; when is enough...enough?" »

Over the weekend, I read this article from Kara Swisher on AllThingsD.com, in which she reports that Yahoo!, under its new leadership, will implement a no-telecommuting rule, effective June 1.

Ms. Swisher posted a copy of the internal Yahoo! memorandum to its employees, in which the company underscores the "critical" need to be at the office versus working form home where "speed and quality are often compromised."

Sounds good in theory. But I have a little monkey-wrench.

How about the Americans with Disabilities Act?

Under the ADA, an employer must provide a reasonable accommodation to disabled employees where doing so will allow them to perform the essential functions of their job. As I've written here before, telecommuting may be a reasonable accommodation for an employee with a disability.

How can a business determine whether telecommuting is a reasonable accommodation? Well, it all begins with an individualized assessment of the employee and an interactive dialogue to discuss whether telecommuting is reasonable under the particular facts and circumstances affecting the employee. Conversely, generalizations and other other inflexible attendance rules, have gotten other employers into trouble.

Maybe Yahoo! has a reasonable-accommodation policy that will trump its new edict. Otherwise, its new rule may be a recipe for disaster.

For more on telecommuting as a reasonable accommodation, check out this EEOC resource.

Have you checked out DriveThruHR yet?

DriveThruHR is the baby of Bryan Wempen and William Tincup, a half-hour radio show on which these two HR leaders, along with a guest, discuss the latest trends, thoughts and sentiment within the industry.

Yesterday, I was on DriveThruHR, Human Resource's #1 Daily Radio, talking social media and the workplace, Americans with Disabilities Act, hockey, and gettin' freaky with the mashed potatoes. Yeah, that's right. Hockey. 

Have a listen...

Today we have a guest blogger at The Employer Handbook. It's my colleague, Katharine Hartman. Katharine is an associate in Dilworth Paxson's Labor & Employment Group, but also asked that I give a little shoutout to our new Test Publishing, Certification and Licensure Group.

So holla!

After the jump is a little cross-over between the two. Hope you like it.

(Want to guest blog at The Employer Handbook? Email me).

Continue reading "GUEST POST: The ADA and Test-Taking" »

That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

Your new employee at local pizzeria has what we'll call a "facial deformity." So, rather than having him work the cash register, or otherwise emerge from the kitchen, you mandate that he work in the back so that no customers will ever see him.

Have you violated the Americans with Disabilities Act?

Well, it's probably time to call the lawyer...

Under the ADA, it is unlawful to discriminate against a disabled employee. An individual has a "disability" if he:

1. has a physical or mental impairment that substantially limits one or more of the major life activities of an individual;


2. has a record of such impairment; or


3. is regarded as having such impairment.

The supporting regulations are clear that a cosmetic disfigurement, such as a "facial deformity," qualifies as a physical impairment. And if that physical impairment substantially limits a major life activity such as --- I dunno -- working, we've got an ADA disability. Moreover, if the employer keeps the employee in the back under the pretense of appealing to "customer preferences," then the employee is likely being "regarded as" disabled. 

To be clear, employment decisions that are based on the discriminatory preferences of customers are just as unlawful as decisions based on an employer's own discriminatory preferences. 

(You may be thinking bona fide occupational qualification. Indeed, religion, sex, or national origin can be a bona fide occupational qualification; the ADA contains no BFOQ defense). 

The answer to today's QATQQ is FACT. And, for more, check out this recent federal-court decision authored by none other than the author of the most blunt same-sex sexual harassment judicial opinion...evah!

I was reading this federal court opinion over the weekend. It involves a disability-discrimination claim brought by a deaf man who applied to become a lifeguard at a county pool, but didn't get the job because the county thought his disability would compromise swimmer safety. Plus, the town was not convinced that it could accommodate the deaf applicant because it couldn't be 100% certain that he could safely be on the lifeguard stand alone, without someone constantly by his side.

Folks, I'm guilty.

I'll admit, that when I started reading this opinion, I immediately jumped to the same conclusion as the county-defendant. How could it possibly be safe to employ a deaf lifeguard?

{Then again, my anecdotal knowledge of lifeguarding requirements suggests to me that the real professionals run in slow motion or, at the county-level, have minimal tolerance for pubescent tonsil-hockey schemes}

Well, did you know?

• A deaf man holds the record for most lives saved (over 900!) in his lifeguarding career.
• The ability to hear is unnecessary to enable a person to perform because distressed swimmers exhibit visual signs of distress, which a deaf person scanning his or her assigned area can detect.
• In a noisy swimming area, recognizing a potential problem is almost completely visually based.  Individuals who become deaf before age three have better peripheral vision than hearing individuals.
• According to the American Red Cross, there have been no reported incidents of drowning or near drowning of any individuals over whom a deaf lifeguard was responsible.

It turns out that if the county had made in an individualized inquiry regarding the applicant's ability to perform the job -- he passed all the lifeguard tests with flying colors -- or engage in an interactive process to determine whether he could be reasonably accommodated, it could have avoided litigation that progressed to one step shy of the U.S. Supreme Court.

That's an expensive lesson to learn.

Here are two ways for you to avoid the same mistake:

1. Conduct an individualized inquiry to determine whether an applicant's disability or other condition disqualifies him from a particular position. Put simply: don't jump to conclusions -- unless, of course, you like defending lawsuits.
   
   In the case noted above, the County's physician entered the examination room, briefly reviewed the applicant's file, and declared, "He's deaf; he can't be a lifeguard." This, from a physician with no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards. An outside consultant further opined that the deaf applicant would be able to perform perfectly "100 percent of the time." But that's an impossible standard! 
   
   Learn from these mistakes.  The Americans with Disabilities Act requires the individualized inquiry. Employers must avoid acting based on stereotypes and generalizations about a disability. Instead focus on the the actual disability and the effect that disability has on the particular individual's ability to perform the job. And remember that individuals with disabilities cannot be held to a higher standard of performance than non-disabled individuals. Instead, have someone who is familiar with not only the applicant's disability but also the requirements of the position conduct the individualized assessment to determine whether the applicant is otherwise qualified.


2. Engage in an interactive dialogue. We've talked about this before. Covered employers have a duty to engage in an interactive process with a disabled employee or applicant, which requires communication and good-faith exploration of possible accommodations. The purpose of this process is to 'identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Unless providing an accommodation would cause undue burden to the employer, it must do so.
   
   So, talk with the applicant and get a sense of what will and won't work to allow him/her to perform the essential functions of the job. You don't have to accept the accommodation that you are asked to provide. However, you do have to provide an accommodation it is reasonable.

Follow these two steps and you'll not only cut your risk of disability-discrimination claims, but greatly expand your employee talent pool.

Where did you think I was going with this post? 

(And you call yourselves Human Resource professionals). 

Just kidding. You know I love you.

Let me know in the comments below what kind of interactive dialogue / accommodation ideas you have in mind for these characters, and, ba-dee, ba-dee, ba-dee, that's all folks! 

Have a nice weekend.

Image credit: mcw026

The Employer Handbook generally likes to end the year on a classy, high note. Consequently....

The Smoking Gun reports here that, earlier this month, the Social Security Administration issued this 5-page formal reprimand to an employee for his "awful and unpleasant" flatulence.

{As opposed to my ambrosial flatulence. So lovely.}

In fact, the SSA concluded that the pungent poo-stink was so bad, that it created a "hostile work environment" for all co-workers.

{Note: Apparently, the SSA is not familiar with this Minnesota federal court decision, which recognized that farting does not contribute to a hostile work environment. I'll assume that some of my readers may have just learned a thing or two as well...}

Now, you may be thinking to yourself: Could this employee be disabled under the Rehabilitation Act of 1973, such that the SSA would need to afford him a reasonable accommodation? Consider that, while the gas itself would not be a disability, it could be a symptom of an underlying disabling medical condition. Indeed, the warning memo does note that the employee is lactose intolerant. I'm going to assume that lactose intolerance would be considered a disability, because it interferes with one's ability to eat.

So what about a reasonable accommodation? The warning memo notes that the SSA did refer the employee to its Employee Assistance Program for assistance. But that didn't work. Increased ventilation didn't appear to work either. The warning memo notes that when the employee turned on a fan, it would "cause the smell to spread and worsen the air quality." Apparently, the employee also looked into taking Gas-X, but that never materialized into anything, except Hades-level sulfur. Also, discussed were more frequent restroom breaks. But it appears that the employee couldn't contain himself for that long.

What about telecommuting? In certain instances, that may be a reasonable accommodation. If nothing less, that certainly would have improved the air quality at SSA for other employees. However, I'm guessing that the farter's job requirements would not comport with a telecommuting arrangement.

Therefore, it would appear that the only accommodations, if any, that the SSA could have offered would have resulted in undue hardship. And that's not reasonable. Consequently, you might say that the employee was sh*t outta luck.

Now may be a good time to mention that The Employer Handbook likes to end the year with bad puns as well.

Now somebody pull my finger.

And immaturity. Yeah, immaturity.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

"Oy, Sharon! Will you help me out here?"

"Come on, Ozzy! Yellow in the front, brown in ---."

"Bloody hell, Sharon! I'm trying to comprehend this federal court decision from the District of Minnesota."

"Was that the one Judge Schiltz authored?"

"Aye, Sharon."

"So, here's what I don't get. This fella goes to Mexico a few years ago, comes back to the States, and his employer fires him because the company "thinks" he has swine flu. Is that legal? Wouldn't that violate the Americans with Disabilities Act?"

"All that to-do over swine flu was bollocks, Ozzy. Pure rubbish. Turned out to be just a transitory illness; short in duration. That wouldn't qualify as a disability under the ADA."

"What about 'regarded as' disabled? Under the "regarded as" prong, a plaintiff need only prove that he was regarded as having an impairment; he need not prove that the impairment (if he had it) would have limited a major life activity. So, if the company thought this bloke was really sick, isn't that still disability discrimination?"

"No Ozzy. An employee is not 'regarded as' disabled if the impairment that he is regarded as having is both "transitory and minor.'"

"Yeah. Not like that time I bit the head off that bat in '82 at the Veterans Memorial Auditorium in Des Moines, Iowa. I got rabies shots for biting the head off a bat but that`s OK - the bat had to get Ozzy shots."

"Rabies isn't transitory, Ozzy. That, and Warner Brothers knew that you don't f**k with the 'Prince of Darkness.'"

"Aye, Sharon. Aye."

[Note: They never really said this. Well, except the part about the Ozzy shots. That's true.]

You have an employee who hurts herself on the job and becomes disabled. Although she recovers to the point where she can perform the essential functions of her position without the need for accommodation, she requests a transfer to another one of your facilities so that she has better access to ongoing medical treatment.

Does the law require you to grant that transfer?

In this recent case (Sanchez v. Vilsack), the Tenth Circuit Court of Appeals ruled that the Rehabilitation Act, which prohibits discrimination in federal employment, and courts interpret like the Americans with Disabilities Act, may require this.

Now, we all should know that federal law requires employers to provide a disabled employee with a reasonable accommodation, if needed, to allow the employee to perform the essential functions of her position. The exception to that rule is if the accommodation would cause undue burden to the employer. Then, the accommodation is not reasonable.

There are many types of reasonable accommodations. Where the employee can no longer perform the essential functions of her job, one such accommodation may include reassignment to a vacant position if the employee is qualified for the job. 

But even if the disabled employee can perform the essential functions of her position, the Sanchez Court opined that the law may require more of employers:

[E]mployers are not relieved of their duty to accommodate when employees are already able to perform the essential functions of the job. Qualified handicapped employees who can perform all job functions may require reasonable accommodation to allow them to (a) enjoy the privileges and benefits of employment equal to those enjoyed by non-handicapped employees or (b) pursue therapy or treatment for their handicaps. In other words, an employer is obligated not to interfere, either through action or inaction, with a handicapped employee's efforts to pursue a normal life.

Does this decision mean that all employers must permit disabled employees to transfer to seek medical treatment? Nope. Remember, if the transfer would cause undue burden to the employer, then it is not reasonable. Just remember that this can be a lofty burden. So be prepared to produce empirical evidence to justify denying the accommodation. Consider documenting transfer requests and the financial impact they have on your business. And don't forget to engage in an interactive dialogue with the employee to determine which, if any, other accommodations may be available and reasonable. Maybe, there is another accommodation that, other than a transfer, than can inure to the benefit of both the employee and the employer.