Module 4

Reasonable Accommodations

Any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.

Definition of Disability

Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems which substantially limit a major life activity.

Americans with Disabilities Act Amendments Act (ADAAA) - Coverage

Companies involved in interstate commerce (broadly interpreted) with 15 or more employees

Americans with Disabilities Act - Coverage

Companies involved in interstate commerce (broadly interpreted) with 15 or more employees for 20 weeks a year or more, plus state and local government, employment agencies and labor unions

Lilly Ledbetter Fair Pay Act - Coverage

Companies involved in interstate commerce (broadly interpreted) with 15 or more employees for 20 weeks per year or more (same as Civil Rights Act). Law is retroactive to May 28, 2007.

Age Discrimination in Employment Act - Enforcing Agency

EEOC

Americans with Disabilities Act - Enforcing Agency

EEOC

Americans with Disabilities Act Amendments Act (ADAAA) - Enforcing Agency

EEOC

Lilly Ledbetter Fair Pay Act - Enforcing Agency

EEOC

Americans with Disabilities Act Amendments Act (ADAAA) - Purpose

Eliminate discrimination by affirming the "broad scope of protection" through expanding the definition of "disability"

Vocational Rehabilitation Act - Coverage

Employers with federal contracts over $10,000 and federal government

Civil Rights Act of 1991 - Enforcing Agency

Equal Employment Opportunity Commission (EEOC)

Yes. The court found that the employer violated the ADEA for a variety of reasons including the fact that other employees were recalled following the reduction-in-force, but Carlton was not called back even though there were no documented performance concerns and delivery income increased during his tenure. Further, Carlton was replaced by a younger employee at a lower salary.

Facts: A 56-year-old Director of Marketing had no documented performance problems and his delivery performance-related income increased during his tenure. However, he was terminated, along with 10 other employees, during a reduction-in-force. Three months later, the company rehired a 31-year-old former employee as the Director of Marketing. An offer for rehire was not extended to Carlton. Issue: Did the company violate the ADEA? Why or why not?

No. State and local governments are exempt from the ban on age discrimination with respect to firefighters and law enforcement personnel.

Facts: A 63-year-old retired State Traffic Lieutenant applied for reinstatement as a Lieutenant with the California Highway Patrol. Although he was determined to be physically capable of performing his job, he was denied reinstatement because he was over age 60. Under California law, CHP officers must retire at age 60. Issue: Did the state violate the ADEA? Why or why not?

No. Kersting did not suffer an adverse employment action when he was denied a pay increase to the Class III rate. The court found that Kersting was not denied a normal and expected raise and he continues to be eligible for increased pay in those pay periods when he spends over 50 percent of his time doing Class III work. In addition, the company did not violate the ADA in denying him a promotion to the Class III position. Kersting is not a "qualified individual with a disability" due to the fact that he cannot perform the essential functions of the Class III position and further, he did not apply for an open Class III position.

Facts: A Class II mechanic was injured, resulting in a permanent disability and was no longer able to perform all of the duties of a Class II mechanic. The company created a unique position and allowed him to retain his Class II status as well as maintain an equivalent wage and benefits. During several pay periods, the employee performed both Class II and Class III work allowing him to earn Class III pay for the entire pay period. (Wal-Mart has a "50 percent rule" that states if an employee performs Class III work over 50 percent of his time in a specific pay period, he/she is entitled to receive the higher pay for the entire pay period.) Because he was meeting the 50 percent rule often, Kersting requested a permanent transfer to the Class III pay rate. Wal-Mart denied the request because Kersting could not perform all of the essential functions of a Class III mechanic job and no Class III job was available. Issue: Did the employer violate the Americans with Disabilities Act? Why or why not?

No. Although the employees affected by the salary ladder compaction were within the protected age group, the EEOC improperly focused on only one element of the compensation scheme — the step increases. Viewed as a whole, the system benefits older employees because they always receive the highest pay. Moreover, the plan was based on a reasonable factor other than age: the desire of the union and the company to limit the disparity between the highest paid and the lowest paid employees.

Facts: The employer compressed a 28-step salary ladder to 24 steps. As a result, older employees above step 24 of the old system were denied step increases which younger employees received. All employees received equal merit increases. Issue: Did the employer violate the ADEA? Why or why not?

Yes. The transfer to Plant 7 was a reasonable accommodation and the court found that Tyler suffered no adverse employment action because his wages and benefits remained the same. The company's refusal to transfer Tyler back to Plant 2 was not a violation of the ADA's requirement for reasonable accommodation because a medical reason for the transfer was not given and Tyler refused to supply the company with a medical reason or his medical records.

Facts: The plaintiff was an electrician at Ispat's Plant 2 when he began to feel his coworkers were threatening him. The company was unable to substantiate the charges. Following a visit to a psychiatrist, Tyler was diagnosed with a depression and delusional disorder, and was taken off of work. Upon his release to return to work, Tyler agreed to a transfer to Plant 7 where he was paid the same wages and received the same benefits. After a period of time, Tyler began to believe that his new coworkers were harassing and attempting to harm him. He requested a transfer back to Plant 2 saying that his transfer to Plant 7 adversely impacted his employment. The company denied his request. Issue: Was the transfer to Plant 7 a reasonable accommodation? Was the company's refusal to transfer Tyler back to Plant 2 a denial of a reasonable accommodation? Why or why not?

Executive Order 11246 - Coverage

Federal contractors and federally-assisted construction contractors and subcontractors with over $10,000 in government business in one year

Yes, Fred's situation causes concern under ADEA due to the potential loss of income / retirement income. His replacement, although over 40, is still younger than him.

Fred, age 58, has been transferred from a division sales manager position - a senior level sales position, grade 25 - to a trade specialist position that has not been evaluated. Fred has poor health and although his performance has been good he has been absent much over the past year. The Sales Department has decided to move him to this newly created position to ease his transition into retirement. Although you have not evaluated this position, it will probably be around a grade 20, and your analyst recommends freezing his salary at its current level until such time as his salary falls within the range of his new job. You have just learned that Fred has been replaced as Division Sales Manager by George, age 50, who used to work for him in one of his regions. Does Fred's situation cause you any concern as you review the Age Discrimination in Employment Act? What specifically would you analyze?

Americans with Disabilities Act - Purpose

Improve quality of life for the disabled and prevent discrimination in any aspect of the employment relationship. Prior to this only federal contractors and the federal government were covered by the similar Vocational Rehabilitation Act.

Vocational Rehabilitation Act - Purpose

The Vocational Rehabilitation Act of 1973 is a comprehensive statute aimed at taking action to employ and advance individuals with disabilities to improve their quality of life. This law predated ADA by 17 years but had limited coverage.

Yes, both employees have recourse because they both have disabilities.

The new Regional Human Resources Manager for your northeastern division has just called. The division is a major government supplier whose contracts with the federal government account for well over 25% of the division's $500 million sales volume. Two employees have approached the Regional Human Resources Manager to discuss a disability status. One has been identified as a recovering alcoholic. Although no incidences of alcoholism have affected his work since he attended a rehabilitation program last year, he has been passed over for a recent promotion and feels his past reputation as an alcoholic is the reason. The second employee, a middle-aged female, considers herself an epileptic. Although no medical documentation supports this claim, she has been known to have seizures, especially in times of severe pressure. The Accounting Manager for whom she works has had to have her removed from the workplace by paramedics twice in the last six months. He has warned her that if the seizures do not stop, she will be terminated for disruptive behavior. Do either or both of these employees have recourse under the Vocational Rehabilitation Act or the Americans with Disabilities Act? What would be the basis?

Lilly Ledbetter Fair Pay Act - Purpose

The new law creates a rolling or open timeframe for filing wage discrimination claims brought under Title VII, ADEA, ADA, ADAAA and the Vocational Rehabilitation Act.

Time Frame for Challenging Seniority Systems

This is different than prior legislation when violations were only viewed as occurring when the seniority system was adopted, not when it was applied. This part of the legislation was a response to the U.S. Supreme Court case Lorance v. AT&T. In this case all women who transferred from one department to another department lost their seniority. Statute of limitations prevented women from suing for discriminatory seniority system because seniority rule was implemented far in advance of the women being subjected to or impacted by the rule change.

Age Discrimination in Employment Act - Purpose

Prohibit age discrimination with respect to compensation, terms, conditions or privileges of employment

Genetic Information Non-Discrimination Act (GINA) - Purpose

Prohibit discrimination against employees or applicants based on: • An individual's genetic tests • Tests of an individual's family members and • Information relating to an individual's family medical history

Vocational Rehabilitation Act - Provisions

Prohibit discrimination against physically or mentally disabled individuals • Amended in 1992 to be consistent with ADA in nondiscrimination standards, essential functions, qualification standards, direct threat, reasonable accommodation, undue hardship and pre-employment questions. • Key differentiator between the Vocational Rehabilitation Act and ADA is that government contractors are required to use affirmative action in employment of the disabled. • Employers only have to hire and retain qualified individuals who can perform the essential functions of the job.

Civil Rights Act of 1991 - Purpose

Prohibit discrimination on the basis of the specific protected classifications under Title VII, ADA and ADEA. Creates new remedies and rights for plaintiffs in Title VII cases, partly to counteract three 1989 Supreme Court Cases perceived by congress as weakening protections under Title VII.

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) - Purpose

Prohibits discrimination and protects uniformed services employees that fulfill military service and reserve responsibilities while employed as a civilian

Executive Order 11246 - Purpose

Prohibits discrimination in employment decisions on the basis of race, color, religion, sex, or national origin.

Civil Rights Act of 1991 - Coverage

Same as Title VII Civil Rights Act of 1964 (companies affecting interstate commerce, employing 15 or more, 20 weeks a year)

Executive Order 11246 - Enforcing Agency

The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) is responsible for implementing the affirmative action requirements applicable to government contractors and subcontractors.

Genetic Information Non-Discrimination Act (GINA) - Enforcing Agency

The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment).

Genetic Information Non-Discrimination Act (GINA) - Coverage

15 or more employees; state and local governments

Genetic Information Non-Discrimination Act (GINA) - Provisions

180 days to file a charge; may be extended by state laws. Employer is prohibited from requesting, requiring, or purchasing genetic information and family medical history. Only exception is for wellness programs where information requested is voluntary and not disclosed to employer.

Americans with Disabilities Act - Provisions

A charge of discrimination must be filed within 180 days of the alleged discriminatory act. • Prohibits discrimination in any aspect of the employment relationship • A charge of discrimination must be filed within 180 days of the alleged discriminatory act • Time limit may be extended up to 300 days if there is a state or local fair employment practices agency enforcing a law prohibiting the same alleged discriminatory practice. • Remedies are the same as those specifically provided under the Civil Rights Act of 1964.

Americans with Disabilities Act Amendments Act (ADAAA) - Provisions

A charge of discrimination must be filed within 180 days of the alleged discriminatory act. • Time limit may be extended up to 300 days if there is a state or local fair employment practices agency enforcing a law prohibiting the same alleged discriminatory practice. • Remedies are to put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never occurred. A victim of discrimination may be able to recover attorney's fees, expert witness fees, court costs as well as compensatory and punitive damages.

dispute resolution

A dispute between an employee and an employer may be resolved in a number of different ways. Following internal company attempts, the parties may agree to outside mediation, arbitration or take the matter through the court system. Mediation Arbitration Court

Age Discrimination in Employment Act - Coverage

All employees and retirees at least 40 years of age who are with private employers engaged in industry affecting interstate commerce with 20 or more employees engaged in interstate commerce or who are with local and state governments

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) - Enforcing Agency

U.S. Department of Labor (DOL)

40

What is the minimum age for an individual to qualify for protection under the Age Discrimination in Employment Act?

Vocational Rehabilitation Act of 1973

Which act does the Office of Federal Contract Compliance Programs (OFCCP) enforce?

Civil Rights Act of 1991

Which of the following acts redefines guidelines for disparate impact cases?

Job restructuring

Which of the following is an example of a reasonable accommodation?

Job descriptions must be written to ensure they cover the critical functions of the job.

Which of the following might be an example of the influence of the Americans with Disabilities Act on compensation?

Civil Rights Act of 1991 - Provisions

five primary amendments • Allows compensatory and punitive damages • Provides for trial by jury • Redefines guidelines for disparate impact cases • Affects mixed-motive discrimination cases • Lengthens timeframe for challenging seniority systems

Lilly Ledbetter Fair Pay Act - Provisions

• A charge of discrimination must be filed within 180/300 day timeframe outlined in the Civil Rights Act but timeframe starts over each time an employee receives compensation (wages, benefits or other). • Remedies are the same as those specifically provided under the Civil Rights Act of 1964.

Reasonable accommodations may include one or more of the following actions:

• Acquiring or modifying equipment or devices • Job restructuring • Part-time or modified work schedules • Reassignment to a vacant position • Adjusting or modifying examinations, training materials or policies • Providing readers and interpreters • Making the workplace accessible and usable

USERRA Eligibility

• Advance notice • Service not exceeding five years • Timely reporting • Discharge honorable, medical or uncharacterized • Hold civilian job

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) - Coverage

• Any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment opportunities • Employers are required to honor reemployment rights for those employees that "are a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service" (Title 38 US Code section 4311).

Executive Order 11246 - Provisions

• Federal contractors must take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. • Federal contractors with 50 or more employees and $50,000 or more in federal contracts must develop written affirmative action plans for women and minorities if there is underrepresentation relative to qualified individuals, including two major pieces: a written narrative and quantitative analysis. • Federal contractors that are required to comply with this law must also follow strict applicant tracking requirements and monitor their employment decisions and practices for potential discrimination. • Covered employers must monitor their compensation systems to ensure they are non-discriminatory.

Enforcement of Executive Order 11246

• Random audits by OFCCP • Recommend Department of Justice enforcement • Recommend EEOC enforcement of Title VII • Cancel, terminate, suspend current contracts • Prevent any future federal government contracts • Secure compliance by conference or mediation

Pre-employment Medical Examinations

• Specifically prohibited under ADA • Allowed if all employees in job also must take exam • Drug testing excluded • Medical exam results must be kept confidential and maintained in separate medical files

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) - Provisions

• Those who serve in the uniformed services are entitled to the continuation of their position, seniority, status and pay rate as if there had not been a break in employment. • Health benefits and pension plans are protected by USERRA for 24 months on medical at COBRA costs. • Employer cannot require employees to use their accrued vacation and sick pay to offset pay during uniformed service. • USERRA does not supersede a local or federal law unless it provides better benefits for the employee (i.e., health premiums, pay continuation and other benefits). • USERRA establishes a five-year cumulative total of military service with a single employer.

ADEA Exceptions

■ Bona fide executives are entitled to $44,000 per year or more in retirement benefits derived from employer contributions and have a high level position. Mandatory retirement at age 65 is allowed. ■ Elected officials and high-level appointed officials in government are not covered. ■ Bona Fide Occupational Qualifications (BFOQs): Employers may discriminate on the basis of age when age is a bona fide occupational qualification reasonably necessary to the normal operation of the employer's business. ■ Reasonable factors other than age: Differences in the treatment of employees which are based on reasonable factors other than age are not prohibited. ■ Seniority system: Employers may observe the terms of a bona fide seniority system provided it is not a subterfuge for age discrimination. ■ Special provisions for firefighters and law-enforcement officials ■ Bona fide benefits plan

1991 Amendments

■ Provides for trial by jury - Prior to this legislation, jury trials were available only where intentional discrimination on the basis of race or ethnic characteristics was alleged under a Civil War era statute. • Law provides federal rights to trial by jury in cases alleging intentional discrimination based on gender, national origin and religion, in addition to race and ethnic characteristics. ■ Redefines guidelines for disparate impact cases • The Civil Rights Act of 1991 amends Title VII to require employers to prove - and not merely produce evidence - that practices having a disparate impact on protected classes are job-related and consistent with business necessity. • Response to Atonio v. Wards Cove Packing decision ■ Affects mixed motive discrimination cases • A mixed-motive discrimination case occurs when a Title VII plaintiff demonstrates that an employer's decision was partially motivated by discrimination, but the employer demonstrates that it would have made the same decision absent discrimination. • Response to Hopkins v. Price Waterhouse decision ■ Allows for compensatory and punitive damages - Victims of intentional discrimination can ask for compensatory damages for pain and suffering as well as for punitive damages, but only from non-public employers.

Criteria used to determine whether a job function is essential includes

■ Whether the reason the position exists is to perform the function ■ Number of other employees available to perform the function or among whom the performance of the function can be distributed ■ Degree of expertise or skill required to perform the function