Monday, November 17, 2014

New 'Ban the Box' law tripping up Minnesota employers

  • Article by: JENNIFER BJORHUS 
    • Star Tribune, November 17, 2014

    • “Ban the box” sounded like a simple concept. Companies can no longer ask about a job seeker’s criminal history on initial employment applications.
      But some of the state’s marquee employers fumbled the new law, which took effect Jan. 1.
      The Minnesota Department of Human Rights has investigated complaints involving the job applications of more than 50 companies and in the majority of cases found applications violating the ban-the-box law, according to data obtained by the Star Tribune. So far about 40 companies “responded favorably” to notification letters the department mailed out, with most fixing applications. The department, charged with enforcing the new law, is awaiting responses from about 16 employers.
      Many of the problem job applications still asked if the person had ever pleaded guilty to or been convicted of a crime, asked other questions about misdemeanor convictions, or asked about alcohol- or drug-related driving offenses.
      In some cases, as with Target and 3M, the problem applications may have been old ones that somehow surfaced, Human Rights Commissioner Kevin Lindsey said in an interview.
      The one company fined so far was Elgin Milk Service Inc., a trucking company in the southern Minnesota town of Elgin. It was fined $500 for not complying in a timely manner. The company paid up. Account manager Lynette Bruske said the company just didn’t know about the law change. The fine surprised her.
      “I just thought that was real steep for just eliminating a page out of the application,” Bruske said.
      Morrie’s Automotive Group, based in Minnetonka, was also fined but appealed. The fine was overturned, the applications fixed and the matter resolved, Human Rights said.
      One transportation company turned out to be exempt from the new law because a federal law requires it to ask commercial motor vehicle driver applicants about previous convictions.
      Commissioner Lindsey said the number of violations isn’t large and that he expects more complaints, particularly about smaller employers outside the metro area who may not be aware of the change. Still, he said it was “a little bit disappointing” to find complaints about the state’s Fortune 500 companies.
      It’s estimated that one in four adults in the U.S. has an arrest or conviction on record, and Minnesota’s new law is aimed at giving ex-offenders a fairer shot in the hiring process. Minnesota was part of a wave of states that adopted some type of ban-the-box law in the last few years restricting initial inquiries into criminal histories. Thirteen states now have such laws. Six of them, including Minnesota, have extended the ban to private employers.
      Warning, fines
      Employers in Minnesota that want to ask about previous convictions or conduct a criminal-background check are now supposed to wait until after granting an interview or extending a conditional job offer.
      Companies have 30 days to change their applications after getting an initial warning letter, and then face of a fine up to $500 a month.
      Michelle Rodriguez, senior staff attorney at the National Employment Law Project, said “a simple application fix does not seem difficult.”
      “Target was on public record as of last year … for committing to remove the question from the job application, so that’s especially surprising to hear,” Rodriguez said.
      In March, the department sent a letter to Target saying it reviewed a Target job application and that it asked “Have you been convicted of a crime other than a minor traffic violation?”
      “It’s impossible to know where that application came from,” said Target spokeswoman Molly Snyder.
      Snyder said Target has been out front supporting efforts to restrict questions about previous convictions and that Target “is a leader in this space.”
      “We have absolutely no reason to believe we have been, or are now, out of compliance,” Snyder said.
      She noted that the company removed previous conviction questions from its applications in Minnesota four months before the law took effect. Since September it has notified all of its stores three times instructing them to destroy old paper applications.
      In August, the department notified Target that it had received the company’s revised employment application and is satisfied that the retailer was in compliance.
      As for 3M, Commissioner Lindsey said the company wrote back acknowledging that it was “theoretically possible” that there could be a hard copy application that violated the law, but that the company actually banned the question on initial applications in 2011. 3M did not respond to a request for comment.
      A General Mills spokeswoman said its problem occurred on its recruiting website, where a drawn-out system upgrade meant the criminal history question was not removed until June 1.
      Human Rights is creating extra guidance to help employers understand when they can and cannot ask about an applicant’s criminal background.
      Lindsey said he thinks the state is facing a serious labor shortage and can’t afford to discriminate.
      “If we’re excluding people because they have a criminal history but they may not pose an imminent risk or significant risk in the workplace, then we are harming not only them, but harming our own economic competitiveness,” he said.
      While the new law enjoyed wide support, at least one ex-con who lives in Minnetonka said it hasn’t made it easier for him to get a job. The 55-year-old, who asked to be identified only by his nickname, Fima, said he came to the United States from the former Soviet Union as a political refugee.
      Fima said he worked for Mitsubishi until he was fired in 2002 when the company found pornography on his laptop. Court documents show there were more than 1,000 images of minors on the hard drive. He disputes how the images got there but out of fear of losing at trial pleaded guilty to misdemeanor possession of pornographic work involving a minor. He said he hasn’t been able to get a job since.
      Box still there
      Recently, Fima did an informal Skype interview with Robert Half Technology, which then sent him an e-mail with two attachments. One was an employment application with the box on it, although instructions state not to answer the question if applying in Hawaii, Indiana, Newark N.J., Massachusetts or Philadelphia.
      Also attached was a one-page form for Minnesota with the question. The form makes clear that when applicants complete their interview, they’ll be asked about prior criminal convictions, but it says not to fill out the form until after an in-person interview or submitting an application.
      Robert Half spokeswoman Jamie Carpen said the application was outdated and should have listed Minnesota as one of the no-box states. Carpen said she doesn’t think the application was sent to anyone else and called it a “clerical error.”
      Fima said that to him the message was clear: Despite a delay in questions about his conviction, he would continue to be hobbled by his past. “I feel that I’m worthless,” he said.

Wednesday, November 5, 2014

Jury Awards $499,000 Against EmCare in EEOC Sexual Harassment and Retaliation Case

EEOC Press Release
October 27, 2014

Physician Outsourcing Group Fired Employees for Reporting Sexually Charged Environment, Jury Found
DALLAS - A Dallas federal court jury, on Friday, October 24, 2014, returned a verdict awarding almost half a million dollars to three former employees in a sexual harassment and retaliation lawsuit by the U.S. Equal Employment Opportunity Commission against EmCare, a provider of physician services, the federal agency announced.
The jury of two women and four men awarded former Executive Assistant Gloria Stokes $250,000 in punitive damages based on the claim that she was sexually harassed by her supervisor, the division CEO, Jim McKinney. Stokes, who filed a discrimination charge with the EEOC, also individually intervened in the Commission's lawsuit and was personally represented by Laura Hallmon of Fielding, Parker & Hallmon LLP. The case was tried before U.S. District Judge Jorge Solis.
The EEOC also sought relief for Bonnie Shaw, an EmCare credentialer, and Luke Trahan, a recruiter, based on retaliatory discharge. The jury awarded Shaw and Trahan $82,000 and $167,000, respectively, to compensate them for lost wages and benefits as a result of having been fired for reporting and opposing a sexually hostile work environment within the AnesthesiaCare Division of EmCare.
The jury verdict followed five days of trial, including the presentation of evidence by the EEOC about constant lewd sexual comments and behavior of former AnesthesiaCare CEO Jim McKinney, as well as several other management-level employees in that Division. Stokes, Shaw and Trahan all testified about the lack of an appropriate response by Human Resources to their complaints about the misconduct. Shaw and Trahan testified about jointly reporting to human resources that McKinney made an inappropriate remark to Shaw's then-15-year-old daughter at a "Bring Your Child to Work Day" event. Shaw and Trahan were both fired, within an hour of each other, just six weeks later for reasons the company alleged were performance issues.
Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit (Civil Action No. 3:11-CV-02017-P) in U.S. District Court for the Northern District of Texas after first attempting to reach a pre-litigation settlement through its conciliation process.
"Ms. Stokes, Ms. Shaw, and Mr. Trahan spent their time at EmCare working diligently to do their jobs well despite the pervasive sexual environment that human resources allowed Jim McKinney to create and perpetuate," said EEOC Senior Trial Attorney Meaghan Shepard. "Their complaints were ignored, and instead of getting support from HR, Ms. Shaw and Mr. Trahan were fired for daring to speak out against the division CEO. By today's verdict, it is clear that all three have finally been heard."
EEOC General Counsel David Lopez added, "The EEOC stands ready to take cases to the people through the courthouse, and to shine light on these stories of discrimination and retaliation whenever early administrative resolutions cannot be reached. It is particularly important for us to act to protect employees who have risked their jobs simply because they have stepped up to challenge discrimination in the workplace."
Janet Elizondo, director of the EEOC's Dallas District Office, said, "I am very pleased with the excellent work of our investigative staff in preparing the case that led to this great result. Retired EEOC Investigator Norma Warner returned to provide rebuttal testimony that I'm sure was critical in helping this jury reach its decision."
EmCare has more than 750 practices serving nearly 600 hospitals, hospital systems and other healthcare facilities nationwide.
The EEOC is responsible for enforcing federal laws against employment discrimination. Further information about the agency is available at

Monday, October 6, 2014

As job market opens, a rush to retain talent: To many employees, a healthy workplace is as important as competitive pay.

By JOYCE M. ROSENBERG Associated Press
Star Tribune
October 6, 2014
   People are quitting their jobs at a faster clip, and that’s pushing small-business owners to work harder to hold onto top talent.
   Dance studio owner Andrea Bisconti has experienced the challenge firsthand. When Kellie Love, an instructor there, said she was planning to leave to start a business of her own, Bisconti decided to act. Love inspires students to keep coming back for more lessons and brings in more than a quarter of the studio’s revenue, says Bisconti, owner of a Fred Astaire Dance Studio in Willoughby, Ohio.
   “My most terrible fantasy was I would see students walk out the door in droves, and I would be scrambling,” Bisconti says.
   As the economy and job market improve, keeping the best employees is becoming vital for small businesses. Forty-three percent of owners are working to keep top staffers, according to a recent survey by Principal Financial Group. The reason: A growing number of employees are giving notice. The Labor Department reported more than 2.5 million people quit their jobs in July, up from 2.3 million a year earlier.
   The trend is expected to continue. Thirty-eight percent of workers plan to change employers in the next five years, according to a 2014 survey by the management consultancy Hay Group. That’s up from 30 percent in 2010.
   Bisconti figured out a way to keep Love. They are negotiating to make her a business partner. Other owners are using strategies such as communicating and coaching, creating a healthy environment and giving raises.
   Communicate and coach
   Jon Lal talks continually with the 25 employees of  , walking around the office at the start and end of the day and chatting about work and staffers’ personal lives. He brings lunch in for everyone once a month.
   The conversations give Lal a sense of whether staffers are satisfied or want to advance. He has kept one employee for eight years by giving her a series of new assignments to keep her motivated.
   The approach is critical to retaining employees and avoiding unexpected resignations at the Boston-based company, which runs a website with coupons and cash-back deals, he says.
   “If [a departure] comes as a surprise to you, very often it means you have not been in very close touch with what’s going on with that individual,” Lal says.
   Communicating regularly with employees also gives owners a chance to provide feedback, something staffers want, says Michael Timmes, a consultant with HR provider Insperity, based in Houston. And it’s an opportunity to teach employees new skills.
   “People want to be coached [and] want to be given guidance,” Timmes says.
   A healthy atmosphere
   At FutureAdvisor, head of recruiting Chris Nicholson polled the investment advisory company’s 30 employees about why they stay. Most said it was the positive atmosphere created by the San Francisco-based company’s owners. They mentor staffers, set realistic goals and promote a healthy balance between work and their personal lives, Nicholson says.
   “If the top management has their heads screwed on straight, the whole organization that grows out around them is going to be in a lot better shape,” Nicholson says.
   Legacy Publishing trains its managers to speak to the company’s 95 staffers in a positive way, to give constructive criticism and to pay attention to workers’ quality of work life, says Rhonda Tracy, director of human resources for the Westbrook, Maine, company, which makes instructional software.
   “We spent a portion of a meeting yesterday coming up with ways to make the employees’ days better,” Tracy says. One solution: Getting rid of some of the small, tedious tasks that can frustrate or bore them.
   Show them the money
   Owners and HR consultants say most people don’t leave a job solely because of pay unless another employer offers them so much money they can’t refuse. Job satisfaction is more important for many employees. But pay can be an issue at companies that slashed salaries during the recession, says David Lewis, president of OperationsInc, a human resources provider based in Norwalk, Conn. And workers at many of those businesses had to take on additional responsibilities as jobs were cut. They’re still carrying a heavy workload.
   “At some point, it’s no longer sustainable to give people 2 or 3 percent increases on a base salary you’ve already reduced in some cases by 20 percent in 2009,” Lewis says.

Friday, October 3, 2014

Supreme Court takes case about Muslim teen’s scarf Claims of religious bias at work doubled in 15 years.

By GREG STOHR Bloomberg News

   WASHINGTON – The U.S. Supreme Court will hear the case of a Muslim teenager who was denied a job at Abercrombie & Fitch Co. because she wore a head scarf, in a clash over religious discrimination in the workplace.
   The justices Thursday said they will hear an appeal from the U.S. Equal Employment Opportunity Commission, which is suing the retailer under a federal job-bias law on behalf of Samantha Elauf. A federal appeals court threw out the suit, saying Elauf didn’t explicitly tell Abercrombie that she needed a religious exemption from its dress code to work at a Tulsa, Okla., store.
   The court ruled in a separate case in June that corporations can claim a religious exemption from the Affordable Care Act’s birth-control coverage requirements. The new case aligns President Obama’s administration with religious organizations, potentially pitting them against business groups looking to fend off lawsuits over dress codes and work schedules.
   Claims of religious discrimination in the U.S. workplace are rising. The EEOC received 3,700 formal complaints last year, more than double the number 15 years earlier.
   The issue “is of enormous practical importance to a wide array of believers from numerous religious traditions, and its importance increases daily as the nation grows more religiously diverse,” according to a court filing by eight religious groups, representing Christians, Jews, Sikhs and Muslims.
   Federal law requires an employer to “reasonably accommodate” workers’ religious practices as long as the business wouldn’t suffer an “undue hardship.”
   The case stems from Abercrombie’s requirement that its in-store salespeople reflect the store’s style.
   Under Abercrombie’s “look policy,” salespeople must wear styles similar to the clothing sold in the store and are prohibited from wearing hats or anything black.
   Elauf, then 17, wore a black scarf, known as a hijab, when she met with an assistant manager about a job at an Abercrombie Kids store in 2008. The subject of her religion never arose during the interview, and the manager, Heather Cooke, was prepared to offer Elauf a job.
   Cooke then discussed Elauf ’s scarf with Randall Johnson, an Abercrombie district manager. Johnson said that, because Elauf would be in violation of Abercrombie’s dress code, Cooke should downgrade the girl’s interview score and deny her the job.
   Abercrombie, which is based in Ohio, agreed to pay $71,000 to settle two similar suits in California last year.

Monday, September 29, 2014

DSW to pay $900,000 over age discrimination accusations

From:  The Chicago Tribune.
By:  Ellen Jean Hirst
September 22, 2014

Shoe retailer DSW Inc. has agreed to pay $900,000 to settle an age discrimination lawsuit brought by the Chicago District Office of the Equal Employment Opportunity Commission that accused the company of unfairly firing older workers.

The EEOC had charged Columbus, Ohio­ based DSW with unfairly firing employees and managers over the age of 40 during a "reduction in force." The EEOC, the government agency charged with enforcing discrimination laws, said DSW fired older employees because of their age and retaliated against employees who refused to fire other workers based on their age. DSW has about 10,000 employees nationwide.

The plaintiffs in the case, filed in federal court Sept. 15 and settled Friday, included seven former managers and about 100 other former employees, an attorney said.

In addition to disbursing $900,000 to the former employees, DSW must report to the EEOC for the next three years regarding any employee complaints of age discrimination and revise its anti­discrimination policy.

Charges filed with the EEOC under the Age Discrimination in Employment Act have increased about 36 percent since 1997, from 15,785 to 21,396. Supervisory trial attorney Diane Smason said a spike in 2008 – to 24,582 – was likely due to the recession when many companies were forced to downsize, a common guise for age discrimination, she said.

“We see this often where it’s easy for employers to use a need for a reduction in force and financial problems as an easy excuse to let go of older workers,” Smason said. “We think that’s what happened here at DSW.”

DSW issued a statement “unequivocally” denying that it discriminated based on age. The allegations focus on events from 2008 and 2009, the statement said.

“Those difficult decisions were driven by economic volatility and were in no way influenced by the age of associates,” the company said. “Our decision to settle this case mitigates the costs associated with a lengthy legal proceeding and is in the best interest of our associates and shareholders

Tuesday, September 16, 2014

Men, women face different standards in work-related parenting requests

  • Article by: HEIDI STEVENS , Chicago Tribune 
    • September 15, 2014

    • First, the good news: Men who ask for flexible work arrangements to care for their children are “very likely” to have their requests granted.
      As a bonus, these family-minded men are thought of as all-around admirable chaps.
      The not-so-good news: Women who ask for the same flexibility are significantly less likely to have their requests granted and are thought of as uncommitted to their jobs.
      A study by Furman University sociology Prof. Christin Munsch revealed that our cultural biases often don’t follow with our workplace policies.
      She asked 646 participants, ranging in age from 18 to 65, to read a transcript of a conversation between an employee and a human resource manager in which the employee asks to work from home two days a week or come in early and leave early three days a week.
      Participants were then asked whether they would grant the requests and how likable, committed, dependable and dedicated they found the employee to be.
      When the request came from a male employee, 69.7 percent of participants of both genders said they would grant his request, and 24.3 percent deemed the employee “extremely likable.”
      When the request came from a female employee, 56.7 percent of participants would grant her request and a measly 3 percent called her “extremely likable.”
      Fifteen percent of participants described women seeking flexibility as “not at all” or “not very” committed to their jobs, but only 2.7 percent of participants said the same of a male employee who asked for a flexible schedule.
      “These results demonstrate how cultural notions of parenting influence perceptions of people who request flexible work,” Munsch writes in the study, which she presented to the American Sociological Association.
      “We think of women’s responsibilities as including paid labor and domestic obligations, but we still regard breadwinning as men’s primary responsibility and we feel grateful if men contribute in the realm of child care or to other household tasks.”

Thursday, September 11, 2014

EEOC Challenges Overbroad Medical Releases In Lawsuit Against Cummins Power

EEOC Press Release

September 9, 2014

Company Violated Two Federal Laws by Making Invasive and Irrelevant Inquiries Through Its Medical Releases, Federal Agency Charges
MINNEAPOLIS - Shoreview, Minn.-based Cummins Power Generation violated federal law by requiring an employee to submit overbroad medical release forms to have a fitness for duty examination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.
In its lawsuit, the federal agency contended that Cummins required an employee to sign various medical release forms that sought irrelevant information. Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said.
The EEOC maintains that by requiring the employee to execute an overly broad release, Cummins was making disability-related inquiries that were not job-related or consistent with business necessity. Such alleged conduct violates the Americans with Disabilities Act (ADA). Further, the EEOC asserts that the releases presented to the employee would have resulted in the disclosure of family medical history in violation of the Genetic Information Nondiscrimination Act (GINA). The EEOC argues that Cummins also violated the anti-retaliation provisions of the ADA and GINA by firing the employee for his good-faith objections to the releases.
The EEOC brought the suit under Title I of the ADA, which prohibits disability discrimination in employment, and under Title II of GINA, which prohibits the acquisition of genetic information, after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. Cummins Power Generation, Civil Action 0:14-cv-03408-SRN-SER) was filed in U.S. District Court for the District of Minnesota, and is assigned to U.S. District Judge Susan Richard Nelson.
"The EEOC doesn't challenge Cummins' request for a fitness-for-duty examination, but Cummins had an obligation to request only those medical records and information that actually pertained to that issue," said John Hendrickson, regional attorney for the EEOC's Chicago district. "Employees don't give up all rights to privacy of their medical information when they get a job. By asking for all and sundry medical information, Cummins went too far. The EEOC is here to make sure employers follow the requirements of ADA - and of GINA, which is a newer statute that everyone needs to understand and observe."
The EEOC's Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.
The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at

Tuesday, August 26, 2014

NLRB rules against Jimmy John's franchisee: Workers lost their jobs after placing posters that protested lack of sick leave.

From:  The Star Tribune, August 25, 2014
Article by:  Mike Hughlett

The National Labor Relations Board (NLRB) has ruled that a Twin Cities Jimmy John’s franchisee violated the union organizing rights of six employees after firing them for publicly protesting the company’s lack of sick leave.
The decision late last week by the NLRB upholds an April 2012 ruling by a federal administrative law judge, and also calls for the six workers allied with the Industrial Workers of the World (IWW) to be reinstated and given back pay.
MikLin Enterprises, which owns 10 local Jimmy Johns’s, had appealed the administrative law judge’s decision to the NLRB’s full board in Washington D.C. One member of the three-member board dissented, finding that MikLin didn’t violate labor law. MikLin can appeal the NLRB’s decision to a federal court.
“We’re reviewing the decision and our options at this time,” said Rob Mulligan, a MikLin co-owner, declining to comment further.
Erik Forman, one of the fired workers, said in a statement that “the NLRB has said what the public already knew: workers have the right to speak out about their working conditions, particularly when those working conditions mean that customers might get food served by a sick worker.”
The union’s protests emphasized that without paid sick leave, workers were forced to work sick, potentially contaminating food.
Jimmy John’s workers allied with the IWW tried to organize MikLin’s restaurants in 2010, falling just short of victory in an unusual union campaign. Unions rarely try to organize fast-food workers, largely because they are so transient in their jobs. And the IWW is a militant, grass-roots union outside of the mainstream of the labor movement.
In October 2010, Jimmy John’s workers rejected the union by two votes, 87-85.
After the election, pro-union Jimmy John’s workers continued their organizing campaign, often emphasizing their lack of paid sick leave, a common policy in the restaurant industry.
In early 2011, the union placed posters around town displaying two identical Jimmy John’s sandwiches, with one described as made by a healthy worker, the other by a sick worker. “Can’t tell the difference?” the poster said. “That’s too bad because Jimmy John’s workers don’t get paid sick days.”
MikLin fired six workers and issued written warnings to three others involved in the poster campaign. The company has argued that the posters were “disloyal,” and therefore were not protected speech under federal labor law. One of the three NLRB board members agreed. But not the other two.
The posters were not so “disloyal, reckless or maliciously untrue as to lose (the law’s) protection,” the NLRB ruling said.

“Indeed, any person viewing the posters . . . . would reasonably understand that the motive for the communications was to garner support for the campaign to improve the employees’ terms and conditions of employment.”

Monday, August 25, 2014

The Interactive Process

What is the Interactive Process?

This summer marks the 14th anniversary of the Americans with Disabilities Act (ADA), the nation’s first comprehensive civil rights law prohibiting discrimination on the basis of disability. While the ADA has been around for many years, the issues surrounding disability discrimination and reasonable accommodation, including the interactive process, continue.

The ADA and the Minnesota Human Right Act, require employers to accommodate the disabilities of their employees.  To help determine effective accommodations, the EEOC recommends an “interactive process” between the employer and the employee.  This simply means that the parties work together to find an accommodation that works.

1. Request Accommodation

While there is no set formula for the interactive process, it typically starts when the employee or someone on their behalf requests an accommodation.  Requests for accommodation do not need to be in writing. 

Employers should be aware that some courts have suggested that if the employer knows that an employee needs an accommodation, it may have an obligation to provide it.  The EEOC’s guidance suggests that an employer should provide an accommodation when it:  knows of the disability; knows or should know that the employee is experiencing workplace problems because of the disability; or knows or should know that the disability prevents the employee from requesting a reasonable accommodation.

2.  Communicate

Once the request for accommodation has been made or the need for accommodation is obvious, the employer should initiate the interactive process.  Generally, courts have held that the interactive process requires employers to: analyze job functions to establish the essential and non-essential job duties; talk with the employee to learn their limitations; and explore the types of accommodations.

The interactive process imposes mutual obligations on both the employer and the employee. An employee is required to provide the employer with necessary information about their disability and needs for accommodation. Courts have held that an employer cannot be liable for failing to accommodate if a breakdown in the communication process is attributable to the employee.

Similarly, if the breakdown in the interactive process is attributable to the employer, courts have generally found this to be an adverse employment action.

3. Work Together To Identify Possible Accommodations

The employee and the employer should work together to come up with different potential accommodations that allow the employee to perform the essential functions of their job. 

Employers should remember that they must provide a reasonable accommodation unless doing so would pose an “undue hardship.”  The employer bears the burden of proving that it cannot provide the employee with a reasonable accommodation because it would cause an undue hardship.  Under the law, undue hardship means “significant difficulty or expense.”  See, 42 U.S.C. § 12111(10).  The EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act states: “Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.” See, 29 C.F.R. pt. 1630 app. §1630.15(d) (1996). The Enforcement Guidance also states that undue hardship cannot “be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees.” 

If you have questions about the interactive process or are seeking help obtaining a reasonable accommodation, feel free to contact us at 612-278-9832.

Tuesday, August 12, 2014

Pregnancy and Accommodations: Pregnant women fight to keep jobs via ‘reasonable accommodations’

 August 4, 2014, Washington Post

At five months pregnant with her second child, Officer Lyndi Trischler found that the gun belt she was required to wear on her 10-hour patrol shifts pulled painfully on her expanding abdomen. Her heavy bulletproof vest was so tight that she struggled to breathe. She began having heart palpitations.
Months earlier, at her doctor’s recommendation, Trischler had asked her supervisors at the police department in the Florence, Ky., if she could do light-duty work in the office as her pregnancy progressed. That’s what she’d done the year before when, pregnant with her first child, she’d worked up until the day she gave birth.
But this time, the city said no: Either go out on patrol or go on unpaid leave.
So she strapped on her equipment and went out on the road, even as a new city policy granted officers who had been injured on the job the same light-duty desk work that she’d been denied. Last month, Trischler, one of only two female officers on a staff of about 60, was forced to go on unpaid leave.
“I just physically couldn’t do the job anymore,” Trischler said.
Trischler, 30, with a master’s degree in criminal justice, has just filed a pregnancy discrimination claim against the city with the federal Equal Employment Opportunity Commission. A growing number of cases like hers shows that, despite a long history of pregnant women working and a 1978 law to prohibit pregnancy discrimination, workplaces, courts and doctors still disagree on some pretty fundamental questions: What can expectant workers safely handle, particularly in physically demanding jobs such as Trischler’s? And what kind of accommodations are reasonable, legal and fair?
These disagreements can have devastating consequences: Pregnant workers who have been forced onto unpaid leave rather than receive accommodations have, according to a raft of recent discrimination cases, lost their health insurance and their income. Some, according to EEOC documents and court records, have been told by supervisors to choose — their babies or their jobs — and have either terminated their pregnancies or been fired.
“All I think about is how I’m going to take care of my daughter when I’m not making money,” Trischler said. The son she’s now carrying has a rare disorder and is not expected to live long after birth. “This is just a very, very, very, very, very stressful time.”
The mayor of Florence, Diane Whalen, said she could not comment on pending litigation. In April 2013, city officials sent a memo to all department heads saying that the city would no longer offer light duty to employees with injuries, illnesses or other medical conditions that are not work-related.
“This policy is ridiculous. It doesn’t even cover disabled people, which is required by the Americans with Disabilities Act,” said Dina Bakst, with A Better Balance, a legal and advocacy organization filing the claim on Trischler’s behalf.
While every pregnancy is different, hormone changes make women’s ligaments looser, which can lead to back pain and carpal tunnel syndrome. The expanding bulk of the belly can make it difficult to balance, bend and reach, and later in pregnancy, can compress the bladder and lungs, said Wendy Chavkin, a professor of public health and obstetrics and gynecology at the Columbia University Mailman School of Public Health, who has researched how pregnancy impacts women’s ability to work.
Pregnancy can also lead to gestational diabetes, hypertension, edema, fatigue and a host of other conditions.
“But all of that is relevant on the job only if it makes a difference in whether you can do it or not,” Chavkin said. “There is some data to show that some arduous, physically demanding jobs can collide with the needs of pregnancy. But that can often be reasonably accommodated. . . . And if we make work accommodations for men who have hernias and heart attacks, why not for pregnant women?”
Some pregnant workers need accommodations: ergonomic chairs for back pain, stools for those on their feet for hours, bathroom breaks and water for those with diabetes. And others don’t.
And while many employers do provide accommodations, others don’t. The number of pregnancy discrimination cases has been on the rise over the last decade, as have resolutions, settlements and monetary awards: $17.2 million in 2011, up from $5.6 million in 1997.
“It’s hard to think that more employers are discriminating against pregnant women,” said Chai Feldblum, an EEOC commissioner since 2010. “We’re not really sure why complaints are increasing. Perhaps more women are realizing that they have the right not to get fired if they get pregnant, and that they should get the same accommodations as Joe, who sits next to them.”
One central question in Trischler’s case — whether an employer can deny accommodations to pregnant workers while providing them to workers injured on the job — is at the heart of another case, Young v. UPS, that the Supreme Court recently agreed to hear.
Peggy Young, a former UPS driver in Landover, Md., sued UPS in federal court. She argues that the company refused to honor her midwife’s note recommending that she not lift more than 20 pounds, even though UPS routinely gave such modifications to workers with non-work-related injuries who were disabled.
Though she wanted to work light duty or continue driving her route while observing the lifting restriction, Young says in her brief that supervisors told her she was “too much of a liability” to keep on the job while pregnant.
UPS argues that its policies are “pregnancy neutral.”
The EEOC recently issued guidelines clarifying that employers that make adjustments for workers injured on the job must also grant reasonable accommodations to pregnant workers who need them.
One complicating factor in determining what’s safe for pregnant workers is that the medical literature is inconclusive.
So, erring on the side of caution, doctors have tended to prescribe broad restrictions for pregnant workers — limiting heavy lifting or requiring light duty, reduced work hours or bedrest — said Rebecca Jackson, chief of obstetrics and gynecology at San Francisco General Hospital and a member of a group at the Center for Work Life Law at the University of California Hastings College of the Law studying accommodations for pregnant workers.
Indeed, doctors put an estimated one in five pregnant women on bedrest or suggest that they curtail their activities, even though new studies are finding that bed­rest can lead to other problems, such as muscle atrophy and blood clots.
“There’s a lot of pressure on doctors to recommend work restrictions: The desire to have a healthy baby is incredibly strong and the consequences of an unhealthy pregnancy are devastating,” Jackson said. “In the face of not understanding much of what causes things like preterm birth, we are left with very little to offer women to prevent it.”
But new evidence is emerging that suggests that all but the most physically demanding jobs are safe for most healthy pregnant workers.
The National Institute for Occupational Safety and Health in a recent report recommended weight limits for healthy pregnant women that, except for advising against lifting from the floor and overhead, are compatible with guidelines for the general population.
Other studies have found a only a small or inconclusive risk for preterm or low weight births if pregnant workers stand for more than three hours on the job. A recent Danish study found an increased risk for preterm birth for a pregnant worker lifting at least 44 pounds 20 or more times a day.
Sometimes, Jackson said, the notes that doctors write to help their pregnant patients continue working end up getting them fired.
In recent years, a Wal-Mart sales associate was fired for insubordination for carrying around a water bottle, as her doctor advised to prevent a pregnancy-­related bladder infection. An activities director at a nursing home and an Old Navy stock supervisor were fired after their employers refused doctors’ requests that they avoid standing on ladders or lifting heavy objects.Their employers contended in court filings that they were fired for other reasons.
EEOC records show and advocates say pregnancy discrimination tends to hit women in low-wage and physically demanding jobs as well as women in professions such as law enforcement that have traditionally been dominated by men. Women make up 11 percent of all police officers, according to the most recent FBI statistics.
“I’ve had situations where a police department refused to give a very pregnant woman a bulletproof vest that would fit her, even though they gave them to guys with a gut,” said Joan Williams, a University of California law professor who tracks pregnancy discrimination cases.
As for that pregnant Kentucky police officer, Trischler is preparing to move back in with family and out of the apartment she shares with her 1-year-old once her income runs out. Her boyfriend works for another police department and lives 90 minutes away.
Her supervisors told her her health insurance will cut off once her leave becomes unpaid, and she worries how she’ll pay the hospital bill when she delivers in October. Her claim for short-term disability benefits was recently denied. And because she will have used up all her paid time off and her 12 weeks of unpaid leave covered by the Family Medical Leave Act, she won’t have any time to recover after the birth. “When I’m cleared to go back to work,” she said, “I’ll go back to work.”

Wednesday, August 6, 2014

Is Obesity a Disability?

It can be.

The Centers for Disease Control (CDC) outline that 35.7% of U.S. adults are considered obese.  The CDC defines obesity as a number 30 or higher on a BMI index.   In June of last year, the American Medical Association officially recognized obesity as a disease.

Before the passage of the Americans with Disabilities Amendments Act in 2008 (ADAAA), obesity was generally not considered a disability.  Since then, with the interpretation of what constitutes a disability under the law, courts have found obesity to be a disability.

In EEOC v. Resources for Human Development, Inc., 827 F. Supp. 2d 688 (E.D. La.  Dec. 2011), the EEOC brought suit on behalf of Lisa Harrison, alleging that her former employer, Resources for Human Development (RHD) regarded her as disabled when it fired her.

Harrison worked as a Prevention/Intervention Specialist overseeing a daycare program for the children of mothers staying at RHD.  At the time she was hired, she weighed over 400 pounds.  RHD terminated Harrison’s employment eight years later, claiming that her weight severely impaired her job performance.  At the time of her termination, Harrison weighed 527 pounds.

Harrison claimed RHD fired her because it “regarded” her as disabled.  Harrison also claimed that RHD failed to make reasonable accommodations (the case does not elaborate as to what accommodations Harrison requested that were not made.).

According to the EEOC, Harrison received “excellent” ratings in her performance evaluations. Harrison died two years after her termination.  The death certificate stated it was as a result of “morbid obesity.”

The Court found that Harrison was a qualified individual with a disability.  Significantly, the Court found that obesity – in and of itself – was an impairment under the ADAAA.  

In another case brought by the EEOC, EEOC v. BAE Systems Tactical Vehicle Systems, LP, Civil Action No.:11-cv-3497 (S.D. Tex.), the EEOC alleged that BAE fired Ronald Kratz because he was morbidly obese.  For seven years, Kratz worked as a materials handler.  Kratz weighed 680 pounds.  BAE alleged he could not do his job because of his weight.  Kratz disputed his could not perform his job but asked if there was another job he could transfer to.  BAE denied his transfer request and fired him.  The case settled without a court decision.

Thursday, July 31, 2014

In an improving economy, is age discrimination getting better or worse?

From:  The Washington Post

 July 25, 2014

Recent headlines haven't made it look easy to be over the hill at work.
Washington, D.C.,  power players are turning to plastic surgery to avoid a "use by" date for their careers. Silicon Valley firms are hiring high school students as interns. Twitter got hit with a lawsuit alleging age discrimination last week by a former manager.
And when veteran NFL sideline reporter Pam Oliver confirmed that she had been replaced by a younger Erin Andrews recently, some questioned whether ageism was at play. (In media reports, Fox has said age and race had nothing to do with its decision on Oliver, and Twitter has said the case is without merit. The company did not respond immediately to a request for comment.)
All of which made us wonder: In today's economy, is age discrimination getting better or worse?
The answer, as you might expect, is that it's complicated. While numbers point to a downward trend, and there is some evidence of a warming toward older workers, ageism remains a real issue that's among the hardest complaints by workers to prove.
Charges of age discrimination to the Equal Employment Opportunity Commission have actually declined slightly in recent years. The number of age-related filings went from 22,857 in 2012 (23 percent of all claims) to 21,396 in 2013 (22.8 percent of the total). Both numbers are down from a high of 24,582 in 2008 (or nearly 26 percent of all filings).
But those numbers only offer part of the picture. While charges are down, total monetary awards are up, reaching $97.9 million for 2013, the highest level since 1997. Some workers may file charges at a state Fair Employment Practice Agency, says Ray Peeler, a senior attorney adviser for the EEOC. And of course, many employees don't actually take action after facing age discrimination at work. "Our numbers don't necessarily reflect what all's going on out in the world," says Peeler.
There are at least two possible explanations for why the number of charges have started to fall. For one, the economy has been on an upswing. "It's a well-established phenomenon that if the economy is going down, the number of job discrimination claims in various categories goes way up," says Garry Mathiason, a senior partner with Littler Mendelson, a global employment law firm. Now, he says, "employment is getting better. So there's a little bit of a drop."
Another potential rationale is that years after the worst of the recession's cutbacks, more older workers are experiencing age discrimination as they try to get hired -- rather than on their way out the door. Older employees, says Laurie McCann, senior attorney with the AARP Foundation, are overrepresented among the ranks of the long-term unemployed. While they may suspect age is limiting them from getting interviews or callbacks, it's typically not enough for them to file an actual claim. "You're on the outside looking in," she says.
A 2012 AARP survey found that 77 percent of unemployed respondents aged 45 to 54 said workers face age discrimination in the workplace, based on their experience. Just 58 percent of those employed full-time said the same.
Increases in online job applications, McCann says, also create more stumbling blocks for older workers. Candidates who might have left the year they graduated from college off of a paper or e-mailed resume can't do that if a web-based application requires them to complete every field before it can be submitted. As a result of such practices, says Norman Matloff, a computer science professor at University of California, Davis who has studied age discrimination in the tech industry, many older workers "can't even get to first base. They can't get past H.R."
The tech industry has been under particular scrutiny recently for its youth-oriented culture. Big Silicon Valley firms have been called out for explicitly requesting "new grads" in job descriptions -- a no-no in the eyes of the EEOC. Bay Area venture capitalists have a reputation for bias against older founders. And plastic surgeons in San Francisco say they're getting queries from the under-40 crowd about Botox and baldness. In the tech industry, says Matloff, "it's a funny definition of old. We're not talking about 55. We're talking about 35."
But despite tech's reputation for valuing youth, some see a thawing in the attention given to older workers. Kris Stadelman, the director of NOVA, a work force development and training agency in the Bay Area, says she's watched an interesting shift happen over the past year or so. Top-tier tech companies still have a reputation among job seekers and recruiters as wanting younger workers, she says. "We still hear things like 'stale degree' used as a euphemism for age," she says.
That said, Stadelman has seen a "warming trend" toward older workers among more mid-tier firms. There's more hiring going on, for one. But she also believes the "feeding frenzy" for young tech whizzes and the high salaries they've commanded have produced some anecdotal evidence of a trend in reverse. At the more mid-tier companies, she says, "their impression is that they've created this false marketplace. Now, they're looking at the relatively less expensive older employees."
Whether age discrimination is actually rising or falling, one thing is clear: Proving these claims is particularly hard. With other types of discrimination, such as race, employees have to show that race was just one of the factors in, say, losing their job. But if the complaint is about age, the standard of proof is higher. Employees, says the EEOC's Peeler, have to show "it was the reason that tipped the scales."