test 2

DANCING WITH WOLVES ADA/FMLA/WORKERS COMPENSATION

ADANCING WITH WOLVES@ ADA/FMLA/WORKERS= COMPENSATION A CASE STUDY JOHN, A LONG TERM MAINTENANCE EMPLOYEE, SUFFERED SEVERE JOB RELATED INJURIES RESULTING IN THE LOSS OF HIS RIGHT UPPER EXTREMITY AND HAS BEEN OUT OF WORK REHABILITATING FOR 18 WEEKS. HIS EXACT DATE OF RETURN TO WORK IS UNCLEAR. HE HAS SOUGHT AND IS RECEIVING WORKERS= COMPENSATION BENEFITS. YOUR COMPANY NEEDS TO FILL THAT POSITION. WHAT ARE THE ISSUES IN DECIDING WHETHER OR NOT TO TERMINATE JOHN=S EMPLOYMENT? The laws applicable to employees with a health problem, particularly employees requiring a medical leave of absence, present employers with confusing sets of rights and obligations. This area of the law, where the Americans with Disabilities Act (ADA) as Amended, the Family and Medical Leave Act (FMLA) as Amended, and the South Carolina Workers= Compensation Act overlap, has been referred to as the AThree Headed Monster.@ SEPARATE ANALYSIS REQUIRED When faced with an employee with a health problem, employers must analyze carefully the potential sources of obligation. As a general matter, employees are entitled to the greatest protection offered by any of the statutes. Which statute provides the greatest protection will depend on the specific facts of the particular situation at the particular time. Accordingly, employers must separately analyze the application of each statute (and collective bargaining agreement and employer policy) in light of each specific situation to ascertain which provides the greatest benefits to the employee. Compliance with one statute is rarely a defense to non-compliance with another. The employer should document the results of this analysis and clearly inform the employee as to which benefits are being offered. I. THE STATUTES A. Americans with Disabilities Act The ADA forbids discrimination on the basis of disability and requires accommodation of employees and applicants with disabilities. It is enforced by the EEOC or by private litigation after the filing of an EEOC charge. The statute is codified at 42 U.S.C. ' 12101 et seq. The EEOC has issued regulations (29 C.F.R. Part 1630), an Interpretive Guidance (appendix to 29 C.F.R. Part 1630), a Technical Assistance Manual (hereinafter referred to as AT.A.M.@), and numerous policy statements. B. Americans with Disabilities Amendment Act of 2008 Effective January 1, 2009, Congress amended the Americans with Disabilities Act and reversed several Supreme Court decisions which have narrowed the definition of Aa disability@ and directed that the term be construed in favor of broad coverage of individuals to the maximum extent permitted. To be disabled it must substantially limit only one major life activity. Major life activities have been extended to include such things as: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. It also now includes internal body functions such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. No longer will mitigating measures be considered. In other words, the disability must be determined without reference to the ameliorative effects of mitigating measures. An episodic or in remission ailment qualifies as a disability if it substantially limits a major life activity. To be Aregarded as disabled@ one needs only to show that the employer viewed the employee as having an Aimpairment@ without regard to the impact of the perceived impairment on major life functions. The result of the amendment shifts the issue from the question of whether the employee is disabled to whether the employer had a legitimate non-discriminatory reason for its decision. C. Family and Medical Leave Act The FMLA provides leaves of absence with reinstatement rights and continuation of benefits. It is enforced by the Department of Labor or through private litigation. The statute is codified at 29 U.S.C. ' 2601 et seq. The Labor Department final regulations can be found at 29 C.F.R. Part 825 (1995). D. Family and Medical Leave Act Amendment of 2008 Effective January 28, 2008, the Family and Medical Leave Act was amended to provide protection for employees who have family members in the military. The new amendment provides that because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. That employee is entitled to up to twelve (12) weeks leave during a twelve (12) month period. Also, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the service member. The leave shall only be available during a single 12-month period. During the single 12-month period, an eligible employee shall be entitled to a combined total of 26 workweeks for all FMLA leaves. ACovered Servicemember@ means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. E. Workers= Compensation Laws The primary purpose of the South Carolina Workers= Compensation Act is to replace lost income and to fund medical care for workers injured on the job. The statute is codified at S.C. Code Ann. ' 42-1-10 et seq. F. South Carolina Anti-Retaliation Statute South Carolina statutory law prohibits an employer from discharging or demoting any employee because the employee has, in good faith, instituted any proceeding under the South Carolina Workers= Compensation Act, or has testified or is about to testify in any such proceeding. The statute is codified at S.C. Code Ann. ' 41-1-80. C. AMERICANS WITH DISABILITIES ACT AND FAMILY MEDICAL LEAVE ACT COMPARISON A. COVERAGE: Employers A. ADA The ADA covers all employers with 15 or more employees. 42 U.S.C. ' 12111(5)(A). B. FMLA The FMLA covers private employers with 50 or more employees working within 75 miles of an employee=s work site, and all public employers, regardless of size. 29 U.S.C. '' 2611(2)(B) and (4)(A). Employees 1. ADA a. Covers qualified applicants and employees with disabilities, regardless of the length of time or amount of time they have worked. b. Protects applicants and employees because of a Arelationship with@ an individual with a disability, even if the disabled individual is not directly related to the applicant or employee. 29 C.F.R. ' 1630.8. c. Does not protect illegal drug users, homosexuals and bisexuals, individuals with gender identity disorders, compulsive gamblers, kleptomaniacs, and pyromaniacs. 42 U.S.C. ' 12211(a) and 29 C.F.R. ' 1630.3(d-e). d. Excludes from coverage applicants and employees with temporary impairments or those who may be disabled because of advanced age or pregnancy. e. Does not protect applicants or employees who cannot perform the essential functions of their job, with or without reasonable accommodation. 42 U.S.C. ' 12113(a). 1. FMLA a. Does not apply to applicants. b. Protects only employees who have been employed for at least 12 months and who have worked at least 1,250 hours in the past 12 months. 29 U.S.C. ' 2611(2)(A). As a result, short-term and some part-time employees are not entitled to FMLA leave. c. Does not require that employees be Aqualified@ or have a Adisability@ to be entitled to leave; however, leaves are granted only for Aserious health conditions@ of the employee and his or her spouses, children and parents (not just anyone with a Arelationship@ to the employee). 29 U.S.C. ' 2612(a)(1)(A-D). d. ASerious health condition@ means an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care in a hospital; or (2) continuing treatment by a health care provider, including a period of incapacity of more than three consecutive calendar days, any period of incapacity caused by pregnancy or for prenatal care, any period of incapacity or treatment for such incapacity because of chronic serious health condition. 29 U.S.C. ' 2611(11)(A-B). e. It also provides leave for: (1) Birth and/or care of a child of the employee; (2) Placement of a child into the employee=s family by adoption or by a foster care arrangement; (3) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. (4) An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for an injury or illness incurred by the service member in the line of duty. B. RELATIONSHIP BETWEEN FMLA AND ADA Neither the ADA nor the FMLA supersede each other to the extent that the other provides greater or equal rights to covered employees. See, 29 U.S.C. ' 2651(a); 42 U.S.C. ' 12201(b). One or both of the Acts may apply depending upon the situation. Furthermore, the rights and obligations created by such statute may vary considerably in a particular situation. The application of each statute must be analyzed separately. 1. Relevant Medical Condition The ADA is concerned with disabilities. A disability is a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. ' 12102(2). Under the ADA, a person has a covered disability if he has one of the following: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. AMajor Life Activities@ means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. It also now includes internal body functions such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The phrase Amajor life activities@ refers to Athose activities that are of central importance to daily life.@ The employee=s abilities with reference to those activities must be Asignificantly worse than the average person in the general population.@ An impairment=s impact on a major life activity must be Apermanent or long-term.@ A Adisability@ is not necessarily the same as a Aserious health condition@ under the FMLA. Transitory, episodic problems from which the employee soon recovers completely are generally not disabilities. 29 C.F.R. pt. ' 1630, App. ' 1630.2(j). However, even temporary conditions that require a one-night stay in the hospital or that create an incapacity of more than three days for which there is continuing health care may be a serious health condition. 2. Return to Work Requirements FMLA Under the FMLA, an employee returning from leave must be returned to the same job or to a job which is equivalent if the employee can perform the essential job functions. ADA Under the ADA, an employer must permit a disabled employee to return to work unless: a. The employee cannot perform essential job functions of his job with or without reasonable accommodation; b. The employee poses a direct threat of substantial harm to himself or to co-workers which cannot be reduced to an acceptable level with a reasonable accommodation; or c. Keeping job open would present an undue hardship. 3. Reasonable Accommodation Reasonable Accommodation Requirement a. ADA The ADA requires that employers make reasonable accommodation for the disabilities of the employees or applicants who can, with those accommodations, perform the essential functions of the job unless doing so would create an undue hardship on the employer. 42 U.S.C. ' 12112(b)(5). A reasonable accommodation is something that helps the employee perform the essential functions of the job or enjoy equal benefits or privileges. 29 C.F.R. pt. 1630, App. ' 1630.2(o); Myers v. Hose, 50 F.3d 273, 283 (4th Cir. 1995) (AReasonable accommodation is by its terms most logically construed as that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question@). Accommodations that are likely to be futile are not reasonable and need not be provided. See, e.g., Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995); Tyndall v. National Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994). b. FMLA Reasonableness and effectiveness, are concepts not found in the FMLA. An employee who meets the FMLA eligibility standards and who has not used up his 12 week annual allotment may take FMLA leave even though his health will be no better at the end of the leave and even though providing the leave will impose a significant hardship on the employer. Type of Accommodation/Effect of Accommodation on FMLA Leave a. ADA Neither that statute nor the regulations specify what types of accommodation or how much of an accommodation is required in a particular case. Any number of things (e.g., job restructuring, modified work schedules, reassignment to a vacant position, modification of equipment, provision of helpers) can be required by the ADA as reasonable accommodations. 29 C.F.R. ' 1630.2(o). If a number of reasonable accommodations are possible, the ADA does not require the employer to offer the Abest@ accommodation or the accommodation preferred by the employee. 29 C.F.R. pt. 1630 App., ' 1630.9; T.A.M. ' 3.4; What matters is that the employer provide an accommodation that allows the employee to perform the essential functions of the job. b. FMLA The FMLA requires nothing other than leave, reinstatement rights, and the continuation of benefits. If an employee meets the requirements for FMLA leave, the employee may choose to take the leaven even if the employer is willing to make arrangements that would allow the employee to perform his job even with a serious health condition. 29 C.F.R. ' 825.702(d)(1). 4. Effect on Employers= Operation ADA The application of the ADA to a particular situation involves some consideration of the employer=s needs. The employer need not implement a particular accommodation unless the accommodation would allow the employee to perform the essential functions of the job (i.e., meet the employer=s essential needs) or if doing so would impose an undue hardship. FMLA The effect of the employer is completely irrelevant to the application of the FMLA (except for the special rules pertaining to school teachers and highly-paid employees). 5. Application to Request Time-Off FMLA If an employee meets the FMLA eligibility standards and has not previously exhausted the 12 week annual total, the employee is entitled to FMLA leave. ADA a. Reasonable accommodation analysis The application of the ADA to a request time off is far more complex. The ADA does not create an entitlement to time off simply because one has a disability. The standard ADA reasonable accommodation analysis must be followed. b. Leave of absence as a reasonable accommodation (1) A leave of absence to obtain treatment that is likely to allow the person to perform the essential functions after a limited, predictable period of time may well be a reasonable accommodation. For example, it may be a reasonable accommodation to allow an employee who has recently lost his sight to take a leave of absence to receive training in the use of a guide dog when the employee will be able to perform the essential functions of the job with the use of the guide dog. See, T.A.M. ' 3.10.4. (2) However, if regular predictable attendance is an essential function of the job and no accommodation will allow the employee to meet that standard, the employee is not a qualified person with a disability and is not guaranteed either a leave or a job by the ADA. See, Walders v. Garrett, 765 F.Supp. 303, 313 (E.D. Va. 1991); aff=d, 956 F.2d 1163 (4th Cir. 1992); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994). FMLA leave as a reasonable accommodation The same leave of absence can be both a reasonable accommodation and an FMLA leave. FMLA leave requires the continuation of benefits even though the ADA normally does not. 29 C.F.R. ' 825.702(c)(2). If the employer makes the appropriate designation, the leave could count against the FMLA annual allotment. Right to reinstatement a. FMLA When the FMLA leave period expires, the employee has the right to be instated to the same or an equivalent position if the employee can then perform all the essential job functions. If at the end of the FMLA period, the employee remains unable to perform all the essential job functions, the employee has no FMLA rights to reinstatement to the original job or a different job within his capabilities. 29 C.F.R. ' 825.214. b. ADA The ADA might require the employer at that point to make one or more of the following accommodations: modify the original job, transfer to a different, vacant position, or extend the leave. 29 C.F.R. ' 825.702(c)(4). Extension of leave as a reasonable accommodation The FMLA requires the employer to provide 12 weeks of unpaid leave, but the ADA may require further leave as a reasonable accommodation if the employee is a Aqualified individual with a disability.@ If an employee who is a Aqualified individual with a disability@ has exhausted his or her FMLA leave, the employer must perform a reasonable accommodation analysis. 29 C.F.R. ' 825.702. In such a situation, the employer can generally provide a reasonable accommodation by allowing the employee to continue an unpaid leave of absence as long as such accommodation does not pose an undue hardship to the employer. 29 C.F.R. pt. 1630, App. ' 1630.2(o)(1995). In determining whether an extension of unpaid leave constitutes an undue hardship, the EEOC has stated that an employer may take into consideration the cost and disruption to operations resulting from the FMLA leave already taken. If an employer offers an extension of leave beyond the FMLA leave entitlement in order to accommodate the disability of an employee, such unpaid leave does not have to comply with the terms of the FMLA. 29 C.F.R. ' 825.700(A) (1995). An employee on such leave will not automatically be entitled to reinstatement to the same or equivalent position or to maintenance of health benefits. 29 U.S.C. ' 2614(b). Medical insurance benefits during leave of absence The FMLA requires that medical insurance benefits be continued during the leave period. 29 U.S.C. ' 2614(c)(1). The ADA contains no such requirement. 6. Transfer ADA A transfer to another job that is within the employee=s current capabilities can be a reasonable accommodation under the ADA. However, a transfer to a job with a lower salary is permissible only if there are no accommodations that would allow the employee to remain in his current position and there are no vacant equivalent positions for which the employee is qualified. If such a transfer is made, the employer need not maintain the higher salary of the original position. 29 C.F.R. pt. 1630, App. ' 1930.2(o). The employee would not necessarily have reinstatement rights to the original job. FMLA The FMLA permits a transfer to another position over the employee=s objections only if the employee needs intermittent or reduced schedule leave for medical treatment or if the employer agrees to permit such leave for placement or adoption of a child and the position to which the employee is transferred is better suited to the leave schedule. However, the employer must maintain the pay and benefits of the original position. When the need for intermittent or reduced schedule leave ends, the employee must be reinstated into the same position originally held or one equivalent to it. 29 C.F.R. ' 825.204. 7. Transfer to Part-Time Schedule ADA One possible reasonable accommodation under the ADA is to reduce scheduled hours to the part-time level. If the employer=s policies do not provide benefits for part-time work, the ADA does not require that benefits be maintained for someone who is given part-time work as a reasonable accommodation. 29 C.F.R. ' 825.702(c)(3). Moreover, the ADA would not require the employer to offer a reduced hours schedule after it became an undue hardship or it became clear that even with the reduced schedule the employee could not return to performing the essential functions of the job. FMLA Someone entitled to FMLA leave because of a serious health condition may take that leave through a reduced work schedule or intermittently. During the time that the person is using the intermittent or reduced schedule leave, the employee=s benefits must be preserved and the employer must continue to pay its regular share of health insurance costs. This status can continue until the employee has used up his annual allotment of FMLA time. 8. Medical Records Both the ADA and the FMLA require that medical records be kept segregated from other employee records and not used in a manner inconsistent with the ADA. See, 29 C.F.R. '' 825.500(g), 1630.148. Thus, the need for a separate medical file with limited access on a need to know basis. The ADA limits the collection of medical information about employees to that which is job-related and consistent with business necessity. 42 U.S.C. ' 12112(d)(4); 29 C.F.R. ' 1630.148. Obtaining health information that is needed to determine FMLA leave eligibility through FMLA certification procedures would seem to meet the ADA standard. 9. Parallel Litigation The same lawsuit could include both ADA and FMLA claims. An employer could be liable under one or both statutes. 29 C.F.R. ' 825.702(a). Double relief may not be awarded for the same loss. When remedies coincide, a claimant may be allowed to utilize whichever avenue of relief is desired. 29 C.F.R. ' 825.702(a), citing Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 445 (D.C. Cir. 1976) cert. denied, 434 U.S. 1086 (1978). Thus, a plaintiff should be compensated for lost income and benefits, attorneys= fees, costs, and interest only once, even though both statutes provide for them. III. SOUTH CAROLINA WORKERS= COMPENSATION ANTI-RETALIATORY STATUTE A. No Requirement to Hold Job Open for Specific Period of Time The statute does not set forth any requirement that an injured employee=s job be held open for a specified period of time; however, the courts will look at the proximity in time between the injury and the discharge in determining whether the employer=s motive was retaliatory. B. Remedies Available to the Employee 1. Lost wages suffered as a result of the violation; and 2. Reinstatement to the employee=s former position. NOTE: Attorneys= fees and punitive damages are not allowed. C. Employee=s Burdens 1. The employee has the burden of proof. 2. The employee must prove that the Adeterminative factor@ resulting in his discharge was his institution of the workers= compensation proceeding; He must provide that he would not have been discharged Abut for@ the filing of the claim. 3. An employee DOES NOT have to file a formal workers= compensation claim before he is discharged or demoted to have a cause of action under this statute. D. Affirmative Defenses 1. Willful or habitual tardiness or absence from work; 2. Being disorderly or intoxicated while at work; 3. Destruction of any of the employer=s property; 4. Failure to meet established employer work standards; 5. Malingering; 6. Embezzlement or larceny of the employer=s property; and 7. Violating specific written policy for which the action is a stated remedy for the violation. E. Limitations of the statute=s reach 1. The statute does not apply to employees who have received compensation for permanent and total disability. 2. The statute of limitations to bring such a retaliation claim is one year. IV. THE RELATIONSHIP BETWEEN THE WORKERS= COMPENSATION AND THE ADA In a particular situation, employers must generally comply both with the provision of the ADA and of the South Carolina Workers= Compensation Act. The ADA does not supersede state workers= compensation law to the extent that state law provides greater or equal rights to persons with disabilities. 42 U.S.C. ' 12201(b); 29 C.F.R. ' 1630.1(b)(2). State workers= compensation law does not supersede the ADA because federal laws are supreme. U.S. Const., Art VI; T.A.M. ' 9.6. Exclusive remedy provisions in state workers= compensation statutes do no prevent the assertion of ADA claims. A. Overlap in Coverage Workers= compensation laws apply only to workers injured on the job. Those workers have ADA rights only if they are qualified individuals with disabilities, as defined by the ADA. Most workers= compensation recipients do not have an ADA disability even though they may get a Adisability rating@ pursuant to workers= compensation law. T.A.M. ' 9.2. B. Light Duty/Reasonable Accommodation Under the South Carolina Workers= Compensation Act, an employer can reduce the amount of its payments to an injured employee if it offers the employee a Alight duty@ position commensurate with the employee=s current abilities. An employee who rejects a suitable light duty position may suffer a reduction or termination of income replacement benefits. The ADA would not seem to prohibit such a scheme. In some cases, offering a transfer to an available open position may be a reasonable accommodation under the ADA, but the ADA does not require the creation of a light duty position if one does not exist. T.A.M. ' 9.4. C. Hiring or Reinstatement of Injured Workers Out of a fear of additional workers= compensation liability, an employer may wish to require that a worker injured off the job be fully recovered before returning to his or her regular job. To avoid workers= compensation liability, an employer might decline to hire someone injured in a prior job or to reinstate one of its employees injured off the job. As applied to a qualified person with a disability, such a practice is not permissible under the ADA. T.A.M. ' 9.2. Doing so would be discrimination on the basis of a current or past impairment or a perceived impairment. See, Hutchinson v. United Parcel Service, Inc., 883 F.Supp. 379, 396-97 (N.D. Ia. 1995); Smith v. Kitterman, Inc., 897 F.Supp. 423 (W.D. Mo. 1995). If an employee can perform the essential functions of the job, with or without a reasonable accommodation, and would not pose a significant risk of substantial harm to the employee or others, he must be allowed to return to work. However, the ADA does not prohibit providing medical information to a workers= compensation Asecond injury@ fund. T.A.M. ' 9.3. D. Parallel Litigation An employee injured on the job whose employment is terminated because of an inability to do the job may make simultaneous claims of discrimination or failure to accommodate under the ADA and reprisal or interference claims under the South Carolina Anti-Retaliation Statute. Such claims are generally analyzed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting standard. See, e.g., Nguyen v. IBP, Inc., 905 F.Supp. 1471, 1481-82 (D. Kan. 1995), Randall v. Northern Milk Products, Inc., 519 N.W.2d 456 (Minn. Ct. App. 1994). V. THE RELATIONSHIP BETWEEN THE WORKERS= COMPENSATION AND THE FMLA The FMLA does not supersede state laws to the extent that they provide greater leave rights. 29 U.S.C. ' 2651(b). To the extent that workers= compensation laws provide payments during an absence or guarantee reinstatement after a period of time longer than the FMLA requires, they are not preempted by the FMLA. A. Overlap in Coverage - Concurrent FMLA and Workers= Compensation Leave Absences due to injuries covered by workers= compensation may also be FMLA leave if the employee suffers from a serious health condition and meets the other eligibility requirements of the FMLA. See, 29 C.F.R. '' 825.207(d)(2); 825.702(d)(2); DOL Opinion FMLA-40, Wage-Hour Manual (BNA) 99:3033-34 (1994). This gives the employee the benefit of the FMLA rights to reinstatement and continued benefits. However, as with all leaves protected by the FMLA, an absence does not count toward the FMLA annual total unless and until the employer gives the appropriate notice to the employee and designates the leave as FMLA leave. See, 29 C.F.R. ' 825.115. B. Relationship of FMLA Rights to Light Duty Assignments 1. The South Carolina Workers= Compensation Act provides that if an employer offers a suitable light duty position to an employee on workers= compensation leave and the employee rejects the offer, remaining on leave, the employee may lose rights to some or all workers= compensation payments. In fact, under the current workers= compensation statutes in South Carolina, an employer and its insurance carrier may be able to stop payment of temporary total compensation prior to a hearing. In this case, the employee would still retain all FMLA rights even though certain workers= compensation rights are forfeited. 29 C.F.R. '' 825.207(d)(2), 825.702(d)(2). 2. Under the FMLA, the employee may not be forced to return to a light duty position, but the FMLA does not prohibit the employer offering a light duty position pursuant to workers= compensation laws. 29 C.F.R. '' 825.2220(d), 825.702(d)(2). If the employee accepts the light duty position, he retains FMLA reinstatement right to his original position until his annual 12 week FMLA allotment is exhausted. 29 C.F.R. ' 825.220(d). However, DOL Opinion FMLA-55, Wage-Hour Manual (BNA) 99:3052, 3053 (1995), suggests that time spent in a light duty assignment may not count against an employee=s annual 12 week FMLA allotment. C. Settlement of Workers= Compensation Claims 1. Clincher - generally settles only the workers= compensation claim and not any potential employment claims - such as retaliatory discharge or ADA claims. 2. Some clinchers also include a laundry list of employment claims; however, some Commissioners may refuse to sign clinchers with employment release language and it is unclear whether the South Carolina courts would uphold a release of an unemployment claim is contained in a workers= compensation clincher. 3. Consider obtaining a separate employment release at the time of agreement upon the terms of the clincher. Additional consideration must be paid by the employer, but that additional consideration may be minimal compared to future exposure to attorneys= fees and damages in an employment lawsuit. D. Parallel Litigation An FMLA interference or reprisal claim could easily be added to a lawsuit with workers= compensation retaliation claims and ADA discrimination or failure to accommodate claims.

Intellectual Impairments

EEOC guide on Intellectual Disabilities in the Workplace EEOC defines intellectual impairment: -IQ below 70-75 -Significant limitations in adaptive skill areas -Disability originated before the age of 18

Sexual harassment in the workplace video handout

SEXUAL HARASSMENT IN THE WORKPLACE Every company should have a well-written policy dealing with sexual harassment. It should include the company's position on sexual harassment, a definition of sexual harassment and what an employee is to do if he or she feels that they are victims of sexual harassment. The policy should also contain several avenues for bringing complaints of sexual harassment to management's attention, an anti-retaliation provision for making good faith complaints, how management will handle sexual harassment complaints in carrying out good-faith investigations, including steps management will take to see that prompt remedial action occurs, and a process for following up with the complaining employee to ensure that management's action had the correct result. The company's sexual harassment policy should be educated to all employees, including new hires during orientation, and should be continuously posted on company bulletin boards. Employee training on sexual harassment should be documented, preferably with the signature of the employee attesting that he or she has received training. A. Vicarious Employer Liability Employer liability in sexual harassment lawsuits has been dramatically affected by the two recent decisions of the United States Supreme Court. Employers can now be held vicariously liable for the sexual misconduct of their supervisors, even if the company did not know that the unlawful activity was occurring. In order for an employer to escape liability for a supervisor's misconduct, the employer has the burden of proving that it exercised reasonable care to prevent and correct promptly any sexual harassing behavior and that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. It should be noted that there is no affirmative defense available to an employer when the supervisor's harassment culminates in a tangible employment action. These decisions clearly place the responsibility on the employer to, not only prevent, but to correct promptly any sexual harassing behavior. Thus, the critical issue is what steps has an employer taken to prevent sexual misconduct and to correct promptly any sexual misconduct. As a start, effective, current and comprehensive sexual harassment policies and procedures should be in place. All employees should be educated on the policy and the procedures to be used if they feel victimized. As has always been the case, employers who have reasonable suspicion to believe that sexual misconduct is occurring, should take prompt corrective action to prevent its reoccurrence. Documentation is very important. B. What is Sexual Harassment? Sexual Harassment consists of UNWELCOME sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature when: i. Submission is a term or condition of employment; or ii. The victim's submission to or rejection of the conduct is considered when making decisions affecting his or her employment; or iii. The conduct is intended to or does unreasonably interfere with the victim's work performance or creates an intimidating, hostile or offensive working environment. C. Examples of Sexual Harassment ✦ Sexual offensive jokes, jesters, remarks, or language ✦ Inappropriate touching ✦ Request for sexual favors ✦ Inappropriate cartoons, calendars, or magazines ✦ Bragging about sexual prowness ✦ Questioning others about their sexual prowness ✦ Inappropriate dress, tee-shirts, bumper stickers, etc. D. Effects of Sexual Harassment ✦ Demoralize to work force ✦ Loss of Employment ✦ Cost to defend EEOC Charge and resulting lawsuit ✦ Family break up ✦ Public embarrassment ✦ Inability to obtain other employment E. Supervisor's Liability for Sexual Harassment ✦ If you are the offending party ✦ If, under your supervision, you allow others to engage in sexual harassment ✦ No more "ostrich syndrome" ✦ If you know or have reason to know, sexual harassment is occurring anywhere in the workplace and fail to report or take steps to stop ✦ Supervisors are held to the "reasonable person" standard F. State Common Law Claims ✦ Assault and Battery ✦ Invasion of Privacy ✦ Defamation ✦ Intentional Infliction of Emotional Distress ✦ Negligent Hiring or Retention ✦ Violation of Public Policy ✦ Retaliatory Discharge G. Sexual Harassment Damages ✦ Make Whole/Equitable ✦ Actual ✦ Compensatory/Pain and Suffering ($100,000.00 up to $300,000.00) ✦ Punitive ($100,000.00 up to $300,000.00) H. Preventing Sexual Harassment ✦ Develop/Implement strong policy against sexual harassment ✦ Post policy ✦ Educate supervisors and employees on policy ✦ Establish a sexual harassment official(s) to investigate and remedy violations ✦ No more "ostrich syndrome" ✦ Take all complaints seriously ✦ Conduct full and good faith investigations - Document, Document, Document ✦ Maintain confidentiality as much as possible ✦ Take prompt remedial action ✦ Be consistent ✦ Follow up with accuser to insure correct results - Document, Document, Document I. Working in the Computer Age Rule Number One: "Don't put anything on e-mail that you wouldn't want a jury to see!" J. Skip's Rule "If you would not do it or say it in your Pastor's, Minister's or Religious Leader's presence - don't do it or say it in the work place!"

Customer or Employee Preferences

Customer preference is not a legitimate and protected reason to treat otherwise-qualified employees differently based on gender The 'Hooters' situation ... Airline Stewardess ...

Corrective Action

Employers must take "immediate and appropriate corrective action" The remedy should -Stop the harassment -Not be out of proportion to the act -Not necessarily move the harassee

California Law Mandates Female Board Director(s)

Publicly listed companies with California headquarters One female board by end of 2019 Two female board by end of 2021(three if larger company) $100K > $300K fines

Additional Responsibilities of Employers: Workers Compensation

"Potential responsibility" or liability of employer -"No fault" liability: worker's compensation -A remedial history: purpose of worker's compensation -General statutory scheme ---Payments into common fund per experience rating of work ---Injured employee may not sue employer ---Expedited, schedule-based payments to injured employee -injury arising "out-of or in the course of" employment

'Sexual' Requirement Explained

'Sexual' element need not always be present in hostile environment cases to constitute sexual harassment (recall that this is a form of sex discrimination) Anti-female animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions -Similar to racial harassment, seen previously Harassment may include electronic means

Logistical Considerations

*The Patient Protection and Affordable Care Act* requires the Company to provide a reasonable break time for an employee to express breast milk for her nursing child for one (1) year after the child's birth each time such employee has need to express the milk. The Company is not required to compensate an employee receiving reasonable break time for any work time spent for such purpose. The Company has designated a room *[ID location, not a bathroom, mark "Private" with lock]* that is shielded from view and free from intrusion from coworkers and the public, which is to be used by an employee to express breast milk.

Psychological Impairments

26% of Americans have some manner of diagnosable mental disorder Difficult to see or comprehend, but effects as real as anything physical or observable Limits around insubordinate behaviors and other job effects (e.g., attendance, team-working, other 'essential elements') Significant role for qualified medical professionals

Handling Addiction

Addiction can be a disability - same rules Employer needn't accommodate abuse on-the-job, nor effects of addiction that may go to 'essential elements' (current, chronic abusiveness of illegal substances not protected) -e.g., chronic tardiness due to alcohol abuse Reasonable accommodation for counter-measures -e.g., meetings, possible in-patient treatment

Employment Benefits

Benefits that other employees take for granted are major hurdles for gays and lesbians Supreme Court 2015 ruling on same-sex marriage Registration of unmarried couples as domestic partners -Living together for a specified length of time -Given mutual aid and support Nearly half of the Fortune 500 companies offer domestic partner benefits -90 percent cover a domestic partner's dependents or children -60 percent extend adoption assistance to domestic partners -72 percent also allow employees to take extended family leave to care for a domestic partner or their dependents (Note: FMLA)

Where do Sexual Harassment Considerations Leave the Employer?

Consensual relationships are not forbidden by the law Unwelcome activity - imposes terms and conditions that are different for one gender Sexual harassment policies, procedures and follow-through are keys to unnecessary liability.

Direct Threat Issues

Considerations: -The nature of the risk -The duration of the risk -The severity of the risk -The probability that the disease will be transmitted and will cause varying degrees of harm HIV/AIDS, PTSD, hepatitis C, diabetics . . .

Recognizing Gender Discrimination

Does a facially neutral policy exclude members of a particular gender from the workplace or some workplace benefit? -Do height and weight requirements statistically exclude certain groups? (disparate impact) -Do these requirements directly correlate to ability to do the job? (business necessity - job related) Are there better, *less* discriminatory requirements?

Domestic Partner Law Debate

Domestic partner laws protect personal wishes such as -The right to have your partner visit if you're hospitalized -The right to have your partner act as guardian if you're incapacitated -The right to leave your money and property to whom you wish in your will with no court battles from relatives

Requests for Accommodation and Employer Responses: Process

Employee must inform his employer of a disability and that an accommodation is needed Interactive process (good faith effort to accommodate) Employers should be promptly receptive and responsive

Factors that determine whether an environment is hostile or abusive:

Frequency of the discriminatory conduct Its severity Whether it is physically threatening or humiliating or a mere offensive utterance *The key* Whether it unreasonably interferes with an employee's work performance

Does it Really Exist?

Gender (Sex) discrimination covers both males and females --The vast majority of EEOC gender claims are filed by women against men In 2007 EEOC issued "family responsibility discrimination" (FRD) *Women are more likely to suffer adverse employment actions taken against them due to their care giving responsibilities* Evolving focus of EEOC claims -Shift from hiring discrimination to on-the-job issues In Fortune 1000 industrial and Fortune 500 service firms, 97 percent of top managers are white males

Title VII

Gender (sex) was not originally part of the Civil Rights Act -Amendment introduced by opponent of the Bill -Women's Movement had not yet gained traction Per Title VII, it is the person's ability that must be the basis for workplace decisions

Gender Identity Discrimination

Gender dysphoria (dissatisfaction) Gender identity traditionally not a protected category under Title VII -Protection under some state and local laws -Note: EEOC ruling and cases based on stereotyping

Statistical evidence of gender disparity

Nearly half the workforce is female - Females represent two-thirds of all poor adults Only 15 percent of women work in jobs typically held by men The Commission on Women and Girls report indicated that women earn 77 percent as much as men at all levels of educational attainment The gender-based wage gap is present in every profession

Management Tips

Never assume the physical or intellectual limitations of a worker with disability Review all job descriptions to make sure that the essential job requirements are actually required to complete the job Consult with the employee by asking questions Be clear on the rules for when medical (good faith defense) examinations can be required of a disabled person Review all application materials to ensure that there are no inappropriate questions concerning irrelevant abilities Negotiate and make fair and reasonable counterproposals Ensure that all decision-makers understand what constitutes notice of a request for accommodation and what rights are triggered by that request

Polls

New York Times poll 4 out of every 10 women have experienced sexual harassment National Law Journal 60 percent of female attorneys have experienced sexual harassment Parade Magazine poll 70 percent of women serving in the military have been sexually harassed

Workplace Issues for LGBT Employees

Nondiscrimination policies across the entire employment relationship -Patchwork of coverage via state statute and court decisions -Public-sector v. private-sector protections Benefits and policy coverage for same-sex spouses or domestic partners (U.S. Supreme Court's 2015 decision) -Health care -Bereavement leave, vacation leave

Quid Pro Quo vs Hostile Environment Sexual Harassment

QUID PRO QUO SEXUAL HARASSMENT •Workplace benefit promised, given to, or withheld from harasser by harasser •In exchange for sexual activity by harassee •Generally accompanied by a paper trail •Quid Pro Quo (value for value) HOSTILE ENVIRONMENT SEXUAL HARASSMENT •Activity by harasser, toward harassee that •Is unwelcome by the harassee •Is based on harassee's gender •Creates for harassee a hostile or abusive work environment •Unreasonably interferes with harassee's ability to do his or her job •Is sufficiently severe and/or pervasive•Affects a term or condition of harassee's employment

Sexual Harassment in General

Quid pro quo sexual harassment: Sexual harassment in which the harasser requests sexual activity from the harassee in exchange for workplace benefits Hostile environment sexual harassment: Sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee (gravamen: it makes that person's job sig. harder to do as a result)

Pregnancy Discrimination: South Carolina Pregnancy Accommodations Act 2018

Reasonable Accommodations - Medical needs arising from pregnancy, childbirth or related medical conditions - Accessible and useable facilities for disabilities and medical needs for pregnancy, childbirth or related medical conditions

"Reasonable Accommodation"

Reasonable accommodation: An accommodation to the individual's disability that does not place an undue burden or hardship on the employer The removal of unnecessary restrictions or barriers Can include investment in equipment, training An accommodation does not have to be the best possible solution A disabled employee is entitled to reassignment if he or she is qualified to fill a vacant position, even if he or she can no longer perform the essential functions of her or his ownposition -But Huber v. Wal-Mart: not a guarantee -- employer may hire 'best-qualified' Interplay: reasonable *accommodation* and the *essential* functions of a position

Introduction

Sexual harassment in the workplace occurs more frequently than many realize Sexual harassment class action trials are rare Cost to businesses, personal lives If HR ever matters (and it does), then liability is preventable through standard setting, process follow-through and enforcement

Introduction

Sexual orientation: To whom one is attracted for personal and intimate relationships Sexual orientation pushes a lot of buttons in society and the workplace -It is an issue all across the world -Vast implications for people's everyday lives Personal beliefs should not affect workplace behavior May lead to employer liability Ex: harassment

Historical Issues

The Same-sex Marriage (Supreme Court 2015 ruling) The impact of AIDS in society and in the workplace The military's "don't ask, don't tell" policy (eliminated) The 1993 March on Washington for Lesbians, Gays, and Bisexuals President *Bill Clinton* voices support for gays (1992) *Clinton*'s support for the Employment Nondiscrimination Act [ENDA] *Clinton*'s appointment of over 150 gays and lesbians in his administration

Coworker harassment or third-party harassment of employee

The harasser and harassee are on the same level Harasser is not employed by the employer (e.g. a client or vendor) Employer is liable if the acts of harassment were known, yet no corrective action was taken Case: Farragher v. City of Boca Raton

Same-Gender Sexual Harassment

Title VII sexual harassment even if both parties are of the same sex: *key issue*: whether "workplace is permeated by discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment..." *Basis for harassment must not be the sexual orientation of the harassee*

Equal Pay and Comparable Worth

Title VII's Bennett Amendment -Exceptions permitted by EPAct (re seniority, output pay) recognized under Title VII *Comparable worth*: A Title VII action for pay discrimination based on gender -Jobs held mostly by women are compared with comparable jobs held mostly by men -Pay compared, to determine if there is gender discrimination

ADA: Prima Facie Case for Case for Disability Discrimination

To make a claim an employee must prove: -That she or he is disabled/has a disability -That she or he is otherwise qualified for the position -If an accommodation is required, that the accommodation is reasonable -That she or he suffered an adverse employment decision, such as a termination or demotion or refusal to hire -Decision was based on discriminatory motive

Tort and Criminal Liability

Tort actions -Assault - apprehension of unwanted touching -Battery - actual unwanted touching -Sexual Assault/Rape - per statutory definition -Intentional infliction of emotional distress -False imprisonment -Intentional interference with contractual relations Jury trials, *unlimited* compensatory or punitive damages

Management Considerations

Uneven coverage of LGBT issues and evolving politics require HR attention and response Employers' corporate policies play an important role in establishing workplace environment -Need conscious choices, top-down examples, training as necessary -LGBT-related policies affect entire workplace LGBT matters should be dealt with as legitimate, routine workplace issues

Out of 'The Closet', championing gay rights

Unlike many protected characteristics, sexual orientation is not obvious/can be hidden Employment Non-discrimination Act (ENDA) -Pending for years, not yet passed by Congress -Extends Title VII's reach to include discrimination on the basis of *sexual orientation* or *gender identity* Corporate support of gay and lesbian employees -Gay Pride events -Domestic partnership benefits National Coming Out Day - public face Based on goodwill and movement's growing influence, company policies base workplace decisions on employee's ability *to perform* the job Affinity orientation is not covered under Title VII Discrimination is prohibited under -Local ordinances or executive orders (Obama 2014 Executive Order) -State laws (no South Carolina Law) *Gender identity statutes*: Laws providing protection for *transgender* persons

Removing Old Barriers

Workers with disabilities continue to face the frustration of physical and attitudinal barriers, with dire employment and financial impacts "Nobody's perfect" (well, almost) - 57M Americans have 1+ physical/mental disabilities, 38M "severe" (12.6% of population) Research: disabled workers, properly placed, perform equally to able-bodied co-workers Goal: employers "disability-blind" - factor-out irrelevant or 'accommodate-able' traits

Gender Discrimination in General

can be present in: Advertising Application questions Interview questions Different hours or job positions Discipline Training Seniority systems (LIFO effect) Different wages and benefits Different terms or conditions of employment Termination Familiar Disparate Treatment (intent) and Disparate Impact (neutral rule) claims available

"Gender-Plus" Discrimination

*"Gender-plus" discrimination*: Employment discrimination based on gender and some other factor such as marital status or children Males are not subject to the same limitations Employer assumption re: care-giving responsibility

Sexual Orientation as a Basis for Adverse Employment Decisions

*Employers should* -Distinguish status or orientation from inappropriate actions or conduct -Actions should not be singled out based solely on the actor's orientation or gender identity Employee may fit into more than one category -Liability will ensue if one or more of the categories are protected under Title VII Gender-based stereotypes

Fetal Protection Policies

*Fetal protection policies*: Policies an employer institutes to protect the fetus or the reproductive capacity of employees Limit or prohibit employees from performing certain jobs or working in certain areas Many times these policies only exclude females

Gender Stereotyping

*Gender stereotypes*: The assumption that most or all members of a particular gender must act a certain way Workplace decisions based on: -Ideas of how a particular gender should act or dress -What roles they should perform

Perspective Used to Determine Severity

*Reasonable person standard*: Viewing the harassing activity from the perspective of a reasonable person in society at large *Reasonable victim standard*: Viewing the harassing activity from the perspective of a reasonable person experiencing the harassing activity including gender-specific sociological, cultural, and other factors

'Severe or Pervasive' Requirement

*Severe and/or pervasive activity*: Harassing activity that is more than an occasional act or is so serious that it is the basis for liability -Not a civility code -Interference with reasonable expectations -Physicality and extreme behavior affects duration U.S. Supreme court decision -Sexual harassment claims do not require findings of severe psychological harm to be actionable

Employer Liability for Sexual Harassment

*Tangible* employment action suffered -*Employer is strictly liable* -Presence of a paper trail which gives employers a measure of control *No tangible* employment action suffered -*Employer not strictly liable* -Ellerth/Farragher defense: employer had effective prevention policy in-place; plaintiff unreasonably failed to use it

'Unwelcome' Requirement

*The basis* of hostile environment sexual harassment actions -Harasser actions can be direct or indirect -Evidence that the activity is unwelcome can also be direct or indirect Unwelcomeness parameters -*What's welcome today, may be unwelcome tomorrow*

"Otherwise Qualified"

Able to perform the essential elements of his or her position, notwithstanding disability. An employer may not consider possibility that employee or applicant will become disabled or unqualified for the position in the future Was the applicant or employee qualified at the time the adverse employment action was taken?

Management Tips

Adopt a sexual harassment policy Take a top-down approach to deterring sexual harassment - lead by example Create and disseminate information about an effective reporting mechanism for harassees -Open channel for going around supervisors Provide employees with training and/or information that helps them to recognize sexual harassment Ensure that reported incidents of sexual harassment are taken seriously Create an environment where sexual harassment is not tolerated Promptly investigate all sexual harassment claims Circulate information only on a need-to-know basis Follow-up, times three! Keep an eye out for anti-female animus Make sure the corrective action is commensurate with the policy violation Work to keep the workplace friendly and open

Americans with Disabilities Act (1990)

Applied Rehabilitation Act standards to many privatesector employers (15+ employees) Increasing employment options for persons with psychiatric disabilities Supporting legislation that allows adults with disabilities to retain Medicare coverage when they return to work ADA protects the disabled from: -Intentional discrimination for reasons of social bias -Neutral standards with disparate impact on the disabled -Discrimination as a result of barriers of job performance that can be fully overcome by *reasonable accommodation* -Some circuits have extended coverage to disabilityharassment Under ADA and Rehab'n Acts, employers must take proactive steps to make their workplaces amenable to impaired workers (architectural accessibility standards, and specific, job-related accommodations)

Vocational Rehabilitation Act (1973)

Applies to federal government workers and contractors. Model for later ADA Section 504: Prohibits discrimination against otherwise-qualified individuals with disabilities by any federal program or activity receiving federal assistance Sections 501, 503: Affirmative Action, with plans based on size of contract, number of workers

Management Tips

As always: -Hire using only relevant, work-related criteria -Keep inquiries about applicants' personal lives minimal and relevant -Have a policy ensuring all employees respect in the workplace *Policy should protect everyone from unsolicited negative statements about immutable and other characteristics*

Pregnancy Discrimination: Employee Notification

At time of hire for new employees Existing employees within 120 days Conspicuously posted notice

Reasonable Accommodation and the Contingent Worker

Both the staffing firm and the prospective employer may be responsible for reasonable accommodation Tax incentives to eligible small businesses -Providing workplace access -Removing architectural or transportation barriers -Hiring "vocational rehabilitation referrals"

Governments that Prohibit Discrimination on Basis of Sexual Orientation or Gender Identity

California Colorado Connecticut Delaware Hawaii Illinois Iowa Maine Maryland Massachusetts Minnesota New Hampshire New Jersey New Mexico New York Nevada Oregon Rhode Island Vermont Washington Wisconsin Washington, D.C. Hundreds of Cities Utah

Damages and Jury Trials

Civil Rights Act of 1991 -Employees suing for sexual harassment can --Get up to $300,000 in compensatory or punitive damages --Request for jury trials EEOC has institutionalized alternative dispute resolution (ADR)

"Major Life Activity"

Defining Major life activities: broad coverage - these do not need to relate to job duties Episodic impairments, depending on severity "Substantially limits:" post-ADA Amendment 2008, intends broad coverage, therefore low hurdle of substantiality Impairments may aggregate to reach limit

Equal Pay and Comparable Worth

Despite the Equal Pay Act and the Lilly Ledbetter Act, women earn on average 77 cents for every dollar earned by men (gap closing) -Women's salaries may be equal by the year 2050 The EPact overlaps with Title VII's general prohibition against discrimination in employment on the basis of gender. -EPAct concerns the practical content of the job, nottitle or description in the same organization

"Disability:" Line-drawing

Disability: (1) A physical or mental impairment that substantially limits one or more of the major life activities of an individual (2) a record of such impairment (3) being regarded as having such an impairment Determination based on effect of impairment on life

Logistical Considerations

Employers may not forgo hiring those of a certain gender because of logistical issues, unless it involves an unreasonable financial burden (rare) Examples: -Female sports reporters -Female firefighters -Bathroom facilities

"Essential Functions"

Essential functions: those tasks that are fundamental, and not marginal or unnecessary, to fulfillment of the position objectives -Would removing the function fundamentally change the job? Business necessity, e.g. attendance

Perspective Used to Determine Severity

Evolution in the case law over time: away from 'take the workplace as you find it' (an essentially 'male' standard) toward current 'reasonable victim' perspective (regardless of gender) U.S. Supreme Court decision on Oncale v. Sundowner Offshore Services Inc.: -"The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff 's position."

Pregnancy Discrimination: Unlawful employment practice

Failure, refusal to hire or discharge To limit, segregate or classify Reduce wage rates Failure to make reasonable accommodations To require leave if other reasonable accommodations are available

Introduction/Major Developments

First U.S. Supreme Court sexual harassment case heard in *1986 (Meritor Savings case)* Anita Hill and Clarence Thomas, live in D.C. -Effect on the workplace environmentIncrease in complaints after the hearings Weeks v. Baker & McKenzie: 10% of law firm's previous year's profit awarded as punitive damages: sends a message to employers Ellerth and Farragher cases in 1998: prevention

Employee's Responsibility for "Interactive Process" Process"

Identification and Request for Reasonable Accommodation: once an employee learns that she or he will need some form of accommodation in order to perform the essential functions of her or his position, the burden is on the employee to make a request for the accommodation Interaction (good faith defense) -Meet with the worker -Obtain as much information as possible about the condition -Discuss alternatives -Consider accommodations -Document the process Right to medical documentation

Sexual Harassment Cases

Most sexual harassment takes place between males and females Males bring fewer cases in part due to fear of ridicule Sexual orientation is not covered under Title VII -Harassment cases can still be brought regardless of the gender(s) of the harasser and harassee

Miscellaneous

Retaliation forbidden under ADA but remedies limited to equitable relief (e.g., reinstatement) Genetic testing: taking or using information forbidden in employment decisions (GINA) -Ability to measure outstrips ability to understand implications Some overlap between ADA ("Disability") leaves-of-absence and Family Medical Leave Act (FMLA - Serious health condition)

Is It a Big Deal?

Study by the U.S. Merit Systems Protection Board in 1987 -42 percent of federal employees have reported sexual harassment Survey by Working Woman magazine of 160 of the Fortune 500 companies -Nearly 40 percent had received at least one sexual harassment complaint in the previous 12 months

Determining the Truth of Allegations

The EEOC's Policy Guidance on Harassment -Inherent plausibility -Demeanor -Motive to falsify -Corroboration -Past record Employees should be involved only on a "need to know" basis

Pregnancy Discrimination

The Pregnancy Discrimination Act 1978 Prohibits discrimination based on pregnancy, childbirth, or related medical conditions --Followed Supreme Court's conclusion that pregnancy was not meant to be covered by Title VII (not sex discrimination) Amended Title VII to expressly include pregnancy EEOC report -182 percent increase in the filing of pregnancy discrimination charges over the past 10 years

Grooming Codes

Title VII does not prohibit an employer from using gender as a basis for reasonable grooming codes -Employer discretion: grooming codes rarely affect opportunity Seek 'reasonable' standards of what is generally thought to be male- or female-appropriate attire in a business setting, monitor for impact

Gender as a BFOQ

Title VII permits gender to be used as a bona fide occupational qualification under certain limited circumstances ("privacy" has been an interesting issue) The EEOC guidelines for gender as a BFOQ are very strict BFOQ as a defense generally found inapplicable A few cases have allowed BFOQs, usually privacy-based

"Undue Hardship"

Undue hardship -Financial difficulty -Unduly costly, extensive, substantial or disruptive -Fundamentally alters the nature or operation of the business Greater than de minimis cost: most equipment or telecom modifications cost < $500.00 [Note: de minimis cost is o.k. in religious accommodations] "Fact-intensive" individualized consideration

Disability Harassment

Workplace harassment prohibited when it creates a hostile environment against disabled workers Low incidence of cases, but Title VII serve as model "severe or pervasive" enough to alter terms of employment has been primary controversy No Supreme Court precedent yet

Gender Stereotypes

widely held beliefs about characteristics deemed appropriate for males and females Ex. Women are better suited to repetitive, fine motor skill tasks Women are too unstable to handle jobs with a great deal of responsibility or high pressure. Men make better employees because they are more aggressive