The trailblazing Seventh Circuit Court of Appeals achieved a monumental result. And it only took 53 years after the enactment of Title VII of the Civil Right Act of 1964.
Below, I have a breakdown of yesterday’s historic decision in Hively v. Ivy Tech Community College.
The biggest impact on employers, when the Americans with Disabilities Act Amendments Act took effect on January 1, 2009, was to downplay whether an employee actually had a disability, and get businesses focusing more on whether there existing a reasonable accommodation that would permit an employee to perform the essential functions of the job.
Many management-side employment lawyers joked that, under the ADAAA, everyone had a disability. That’s how easy it was to establish.
Well, except maybe a cleft palate.
A few months ago, I was waxing poetic about plutonium, how to establish essential job functions, and quality-testing diet scrapple. What got into me?
Now, I’ve got a cautionary tale, in the form of a recent federal court opinion, to help you good folks navigate away from some of the Americans with Disabilities Act traps. Lest you like litigation and lawyer bills.
It was déjà vu all over again yesterday.
In its much anticipated decision in Christiansen v. Omnicom Group, Inc. (opinion here), the Second Circuit concluded that Title VII of the Civil Rights Act does not cover discrimination based on sexual orientation.
You wouldn’t fire someone because they complained to you about sexual harassment at work. For starters, that would violate Title VII of the Civil Rights Act of 1964.
But, Title VII’s anti-retaliation provisions are much broader than that.
By Versageek (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons
Allowing an alcoholic to attend AA to remain clean and sober? That works.
But, accommodating an alcoholic who “falls off the wagon,” gets a DUI, and needs time off from work because he is incarcerated? Not so much.
No, the Second Circuit Court of Appeals didn’t say, “Oh, word?” But, it did just toss a $2,600,000 jury award in favor of a pharmacist in an Americans With Disabilities Act case.
_in_Hamburg_2.jpg "By Achim Schleuning (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons")
A few weeks ago, a reader emailed me and asked if I would weigh in on how businesses should address employees talking about politics at work.
On the one hand, in the private sector, there are no First Amendment Rights. Free speech is a big myth. ( I suppose that the National Labor Relations Act could muddy the waters a bit; but, for this post, let’s pretend it doesn’t). And there’s practically nothing that would prevent a private employer from clamping down on employee discussions about politics at work.
On the other hand, an employer could violate bar rules and condone political speech. However, that could lead to problems for the employer, as in bad press or a lawsuit.
You folks in HR don’t have to read any further. Go do yeoman’s work today by putting the “human” in human resources. Or whatever it is you do each day.
But, the lawyers. Let’s see if I can thaw some of your icy hearts with an irresistible invitation and offer.
The Employer Handbook Blog