Chapter 10 HR

RELIGIOUS ADVOCACY AND RELIGIOUS HARASSMENT

Public employers must be especially careful not to unduly limit the religious speech and conduct of employees The First Amendment protects the "free exercise" of religion, but also prohibits governmental entities from establishing, sponsoring or supporting religion (the establishment clause)

RECORD OF A DISABILITY

Record of a disability (second prong) People with a record of a disability are protected under the ADA. Employees are sometimes discriminated against on the basis of a past disability, perhaps because of the stigma attached to certain conditions (mental illness) or a fear that it will reoccur (cancer). Sometimes people are misclassified, but the diagnosis remains on their records.

RELIGIOUS ORGANIZATION EXEMPTION

Title VII contains a religious organization exception that absolves religious organizations from any liability for discriminating on the basis of religion Religious organizations can limit employment to or have a preference for persons sharing the same faith Discrimination on other protected class grounds is not contested where ministerial positions with spiritual functions are involved (the ministerial exception) This exemption now includes not only religious activities, but also secular endeavors such as schools, hospitals, and shops, at least when they are non-profit organizations

"QUALIFIED" INDIVIDUAL

To be protected by the ADA, a person must be not only disabled, but also qualified, having the necessary skills, education and experience. Exception: One who is disabled and qualified, but who poses a "direct threat" to the health and safety of herself of others (which cannot be eliminated by reasonable accommodation) is not qualified. The direct threat must be based on medical evidence showing that the employee currently poses a specific risk of significant harm to herself or others. Qualification is measured with or without accommodation.

REASONABLE ACCOMMODATION OF RELIGION

Under Title VII, employers are required to reasonably accommodate religion, unless doing so would impose undue hardship on the business The process for accommodating religion is similar to that for accommodating disability But the requirement to accommodate religion is much more limited than the responsibility to accommodate disability Title VII defines religion to encompass: "[A]ll aspects of religious observance and practice, as well as belief..." Religion is not only something that a person is, but also something that is expressed through words and deeds It is the behavioral aspect of religion that sometimes requires accommodation The EEOC treats as religious: "...moral and ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views" Belief in a particular God or deity is not required Atheism and agnosticism are forms of religious belief The espoused religion does not have to be popular, well known, or even organized. A religious belief must be "sincerely held" Prima facia case for failure to reasonably accommodate religion requires: The existence of a sincere religious belief or practice that conflicts with an employment requirement; The employer was informed of the conflicting belief or practice; and The employee or applicant suffered an adverse employment outcome because of adhering to the religious belief or practice. Employer can defend by showing: A reasonable accommodation was offered but not accepted No reasonable accommodation without undue hardship was available

COVERED EMPLOYERS

Under the ADA, not all employers are required to comply with the Act. All employers, including State and local government employers, with 15 or more employees. Federal Government exempt Native American Tribes exempt "a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of Title 26."

A "QUALIFIED" PERSON WITH A DISABILITY

1. A person with a physical or mental impairment that substantially limits one or more major life activities; OR 2. A person who has a record or history of such an impairment; OR 3. A person who is regarded as having such an impairment

REASONABLE ACCOMMODATION

An employer's obligation to reasonably accommodate is unique to the protected classes of disability and religion. However, the legal basis and nature of these obligations differ. An employer's obligation to reasonably accommodate disabled persons is more extensive than the requirement to accommodate religion. It is more difficult for employees to establish entitlement in the case of disabilities than in the case of religious beliefs.

CURRENT DISABILITY

Current Disability (first prong) The ADA does not contain a list of covered disabilities. The assessment of disability under the ADA is based on an individualized assessment of the effects of disorders on functioning, rather than on diagnostic labels. Both physical and mental impairments are covered, although some are expressly excluded (transsexualism, pedophilia, pyromania, others) A person's disability must substantially limit one or more major life activities. Illegal drug users are not disabled under the ADA People who are undergoing or have completed drug rehabilitation and are not currently using illegal drugs are protected by the ADA. Not all medical conditions meet the definition of "disability" under the ADA. To be covered, the impairment must be severe, chronic, or expected to have long-term impact on functioning. Except for contacts or eyeglasses, the determination whether an impairment is "substantially limiting" is to be made without regard to assistive devices or ameliorative measures.

REASONABLE ACCOMMODATIONs

Examples include: Making facilities accessible Restructuring jobs Devising part time or modified work schedules Providing additional time on a test Providing voice recognition software Providing qualified readers or interpreters Achieving reasonable accommodation should be a continuing, interactive process between employer and employee. Cost of accommodation is a factor. Need not be the preferred options. Must be effective. Do not have to eliminate essential functions of the job Job performance is still a factor Under the ADA, employers are required to make reasonable accommodation unless doing so would impose an undue hardship on the business. Undue hardship is established if the action would involve significant difficulty or expense, in relation to the size of the firm and its resources. The EEOC provides guidance for employers. 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

WHAT DOES THE ADA* DO?

In short, the act requires employers to make reasonable accommodations to some people with disabilities. •Qualified individuals with disabilities are a protected class. Unlawful to discriminate in all employment practices such as: Recruitment Pay Hiring Firing Promotion Job assignments Training Leave Lay-off Benefits

ESSENTIAL FUNCTIONS

• Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodations. • Rule: Under the ADA, a disabled person's ability to perform a job must be judged only in relation to the essential functions of the job in question. Employers must determine the essential functions of a job according to these criteria: The position exists to perform this function. Few other employees are available to perform this function. The function is highly specialized. Evidence of "essential functions" includes the employer's judgment, written job descriptions, and similar analyses. Focus on what needs to be accomplished rather than on how it is to be accomplished.

PERSONS "REGARDED AS" DISABLED

• Individual is entitled to protection because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. • Does not include "transitory" impairment (less than six months) • Employer not required to provide a reasonable accommodation to a person "regarded as" disabled without an actual disability or record of such impairment. • Put another way, you cannot discriminate because of a perceived disability