The HR Cafe

Psoriasis-plus equaled disability

Managers at Southwest Airlines fired a flight attendant without considering that his medical condition might qualify as a disability. As a result, Southwest now has to pay $80,000 that a jury awarded the attendant.

The attendant suffered from psoriasis – generally not considered a disability – but also from arthritis linked with the skin condition. When in the throes of an arthritic flareup, which could occur three or four times a month, he found it agonizing to walk.

After the attendant violated the airline’s absence policy, he was fired. But he sued for disability discrimination and won. And an appeals court has just upheld the jury’s back pay award.

<cite>Cite: Carmona v. Southwest Airlines.</cite>

ADA: Medical leave as accommodation? EEOC thinks so

Email Address

Close

Dear HR Executive,

It seems entirely reasonable for an employer to terminate employees who exceed a certain amount of medical leave. After all, you can’t be expected to carry people who're unable to work on the payroll indefinitely.

But if the EEOC has its way, you might be violating the ADA if you did get rid of such employees.

‘Arbitrary, inflexible’

The federal employment law watchdog recently filed lawsuits against two employers that applied policies calling for the termination of employees after one year’s absence on medical leave.

The EEOC said “arbitrary deadlines” for returning to work after medical treatment unfairly keep disabled employees from working.

And just last month, another employer, Sears Roebuck, settled a similar suit against it for $6.2 million -- the biggest settlement ever of an ADA lawsuit by the EEOC. The Sears suit was about what the agency called an "inflexible" policy on the exhaustion of workers comp leave.

ADA revisionism

Maybe the EEOC is right on this point. Or maybe the EEOC is reinterpreting and unilaterally extending the scope of the ADA, which specifies that its protection extends only to employees who are able to fulfill their job duties with or without accommodation.

Are employees who can’t work due to long illness or effects of injury “able to fulfill their job duties”? It looks as if we’ll have to wait for the courts to say. We’ll keep you posted on these cases.

Meantime, you may want to check your disability leave policies and see whether they give you and line managers some flexibility to negotiate employees’ return-to-work dates.

Dave Clemens

Editor-in-Chief

HR Rapid Learning Center

ADA: Drug testing must be carefully targeted

Email Address

Close

Dear HR Executive,

If you test employees for illegal drug use, you probably have good reason. But be careful you don’t cast your net too wide.

A Michigan-based auto parts maker did, and got itself sued by the EEOC.

The company, Dura Automotive, tested employees for five controlled substances. But the test also detected seven more classes of legal prescription drugs.

Forbidden medical inquiries

Worse, the EEOC claimed, the employer forced employees to disclose the medical conditions for which they were taking the legal drugs, and agree to stop using them. The EEOC argued that there was no evidence any of these drugs were affecting job performance.

The EEOC suit accuses the employer of violating the Americans With Disabilities Act, which bars certain medical exams and inquiries.

Of course, testing for illegal drugs is not considered a violation of the ADA. Neither is asking employees about any current illegal drug use.

But if you do such tests or ask such questions, make sure your inquiries don't stray outside the legal framework. For more information on what's legal and what's not, check the EEOC's web page on medical inquiries and the ADA.

Dave Clemens

Editor-in-Chief

Human Resources Rapid Learning Center

Disability discrimination: Is it ADHD or just poor work performance?

Email Address

Close

Dear HR Executive:

A  Brooklyn, NY, employer has just paid $70,000 to settle a disability discrimination claim because it didn’t know how to handle an employee with ADHD.

Anywhere between 5% and 16% of the adult population exhibits at least some symptoms of ADHD (attention deficit-hyperactivity disorder). ADHD symptoms – e.g., distractibility, lack of attention to detail, impulsivity, restlessness – can look an awful lot like plain old performance problems.

Of course, if ADHD symptoms interfere with worker's ability to get the job done, then the employer can take action. But if the company disciplines when it could accommodate, it could be risking a lawsuit for disability discrimination.

The key question to ask to avoid a disability discrimination claim: Can the employee do the job, with or without a reasonable accommodation? In the Brooklyn case, the employer apparently concluded that ADHD was too big a liability, even though there was plenty of evidence that the worker could do the job. (EEOC  v. Starrett City Inc., No. 06-CV-3230, E.D. N.Y.)

In the case, a housing complex refused to promote an apprentice mechanic with ADHD to a permanent job and ended up firing the apprentice. But the worker had performed well for four years and was the senior apprentice to apply for the position. The EEOC filed a disability discrimination lawsuit on his behalf, and the employer settled it for $70,000. 

With greater attention being paid to adult ADHD, and with the EEOC considering rules that would offer greater ADA protection for such learning disabilities, you may want to review the accommodations your company can offer employees or applicants with ADHD.

The right accommodation will depend in part on which of three kinds of symptoms the person presents: 

Inattention. The person seems not to listen, loses concentration, or fails to follow through on tasks. Try giving the person more structure through explicit deadlines and frequent performance check-ups.  

Hyperactivity. The person is fidgety, restless and overly talkative. Try reducing the distraction in the work environment – noise, co-worker chatter, etc.
 
Impulsivity. The person interrupts or intrudes on others, and/or makes frequent impulsive comments. Try moving the employee’s work station away from others and/or closer to the supervisor’s.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

Discrimination in the workplace: “Ick. You look gross. You can’t work here.”

Email Address

Close

Dear HR Executive:

“You’re too ugly for this job.”

According to the EEOC, that’s more or less what a manager at Extra Space Management, a storage facility in Gaithersburg, MD, said.

The EEOC, which sued the company for disability discrimination in the workplace, said an area manager met with the employee – who'd been scarred by a house fire – and noticed he was “handicapped, deformed, or something.” It was clear, the manager sagely opined, that the employee, a maintenance worker, “can’t get the job done.”

Obviously this ended badly for the company. It paid $95,000 to settle the suit, and agreed to institute comprehensive ADA training for employees and managers.

You might want to pass along this case to your managers, as a reminder that disability discrimination doesn’t just involve job candidates who are in a wheelchair, or blind, or deaf, or other obvious disabilities. And it doesn’t even turn on the question of whether something like facial scarring is even a “real” disability.

The key issue in these discrimination in the workplace cases, of course, is “perceived disability.” This area manager perceived that the candidate was disabled, and concluded (without any real evidence) that the disability would prevent the worker from doing the job.

Michael Boyette
Editor
HR Café Training Center

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

ADA Restoration Act

Email Address

Close

Dear HR Executive:

You've probably heard about the ADA Restoration Act (ADARA, S. 1881, H.R. 3195). Just when you were thinking, "FMLA intermittent leave really makes my day," it could get even better if Congress passes this law. Opponents are saying you could end up spending hours every week trying to accommodate "disabled" employees with neck strains, headaches and sore feet. A House committee held hearings on the topic on Tuesday, January 29.

I'm going to point you to a lengthy article from The Heritage Foundation that explains why it's a big mistake for Congress to tell companies they have to accommodate people with minor ailments. The gist of the HF's argument is that the ADARA will be prohibitively expensive and -- worse yet -- will hurt people who really are disabled under the current ADA definition (which says a disability is something that "limits a major life activity"). Please note the SHRM has asked all its members to oppose the legislation.

To be fair, I'm including a link that discusses the ACLU's position, which is that recent court decisions have eroded the protections provided by the ADA and made it necessary to restore its original intent. Here's an article stating the position of the ACLU and many organizations that represent the disabled. 

I encourage you to tell us what YOU think. Do you agree/disagree with Heritage and SHRM? Do you think they're being mean spirited? Is there a compromise? What would the ADARA mean at your company? Go to the "comments" link below and share your thoughts.

Stephen Meyer
B21 Publisher

ADA and Accommodations

Email Address

Close

Dear HR Executive:

Here's a piece from B21's newsletter Human Resources 21 about how technology is allowing disabled people to excel in the workplace. We ran it right after a company got hit with an $8 million lawsuit because hiring managers assumed a blind person couldn't possibly function as a customer service rep. That's an assumption a lot of sighted people would make, and it happens to be completely false. Read on.

Stephen Meyer
B21 Publisher

Employers need to be aware of how technology 'enables' disabled employees

Clever entrepreneurs have come up with devices that help all sorts of disabled people function normally. The more HR executives and line managers are aware of these sorts of devices, the less likely you are to fall victim to your biases about people you perceive as disabled. And the less likely you are to provoke lawsuits. Some examples:

Arm Amputees
Imagine you’re interviewing a one-armed person for a job in a mailroom. Impossible, right? How can you open envelopes with one hand? Easy.

Turns out there’s an inexpensive device called a “one-handed envelope opener” (check it out at sammonspreston.com). There’s also a one-handed nailing hammer and a one-handed button hook.

Hearing impaired
TTY devices and visual alerts allow deaf people to do many things hearing people do. For the hearing impaired, a headset device called HATIS (www.hatis.com) connects a hearing aid to a telephone. This $200 accommodation allows a hearing-impaired person to function normally in customer service and other jobs requiring phone work.

Visually impaired
A product called JAWS (Job Access With Speech) translates text into speech. A customer service rep, for example, wears a split headset, in which they hear the JAWS voice in one ear and the customer’s in the other. This allows reps to process written language at 400 to 700 words per minute, faster than many sighted people.

Microsoft also has a product called BrailleNote, a portable computer device that allows blind people to function just like sighted employees in the workplace.

ADA and Mental Disorders

Dear HR Executive:

How tough can a boss be? Some would argue, "As tough as it takes to get the job done." But we've seen lots of legal cases where demanding bosses provoke lawsuits. I recall one involving a woman with a mental disorder whose doctor told her to work no more than 40 hours a week at her job in a shopping mall. During holiday season her boss accused her of being a slacker for not helping out by working longer hours. She caved in and worked overtime, but got so stressed out she had a breakdown. She sued. And she won.

Here's an article from B21's newsletter Human Resources 21 that discusses two cases where bosses stepped over the line and provoked lawsuits that resulted in court battles, one of which led to a jury ruling against the company. Read on.

Stephen Meyer
B21 Publisher

When strict taskmasters push subordinates too hard

Costly ADA lawsuits can ensue if employees break down mentally

Supervisors who “ride” their subordinates so hard they break down can make the company liable for ADA damages.

In a Utah case, an employee and his supervisor had a bad history that went back a decade, when the latter refused to work under the former.

When the roles were reversed, the supervisor rode the employee so hard that, allegedly, the worker’s health deteriorated. He was diagnosed with post-traumatic stress disorder and allegedly lost control of his bladder and bowels.

The employee filed an ADA suit, and the court said his case was strong enough to go to trial.

And in an Arkansas case, a supervisor would quiz an employee about minutiae in the bulky daily operations report, and ridicule him if he couldn’t answer. The employee had a nervous breakdown and, before returning to work, insisted on having an agenda for meetings with the supervisor so he wouldn’t be surprised.

The company claimed it would be too costly to prepare the agendas he wanted.

The employee sued for disability discrimination. A jury awarded him thousands of dollars in lost wages and compensatory damages for the employer’s failure to accommodate him.

Strict, not vindictive
Managers have to walk a fine line. Sometimes recalcitrant employees need strict supervision.
But when strictness crosses the line into vindictiveness, causing severe mental distress, legal trouble isn’t far away.

Cite: Battle v. UPS, Nos. 04-4123/04-4128, 8th Cir., 2/21/06. Jirsa v. Utah DOT, 2:03CV00425, D. Utah, 3/7/06.

RISK-FREE TRIAL -- ONLINE TRAINING LIBRARY FOR HR AND MANAGERS: Want to learn about an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to the HR Cafe Training Center Online. It's a powerful resource that allows HR executives to deploy high-impact training modules effortlessly throughout their organizations. Want to see what it's about before you sign up for a trial? Check out just one program from the huge library of content in the HR Cafe. It's a six-minute "Quick Take" training module called "Why 95% of Training Doesn't Stick."

Job descriptions and the ADA

Dear HR Executive:

All CEOs who think they can get by without an informed HR person need to read about a recent ADA case. How could an agoraphobic -- a person who's afraid to go outside -- win a lawsuit because he was denied a position that required he travel to interview people? The answer is -- because an HR person who didn't understand employment law made a really dumb mistake. Here's the story, which recently appears in B21's newsletter, Human Resources 21.

Stephen Meyer
B21 Publisher

HR fumbles ADA case: Jury awards $6.5 million

Failure to accomodate disability only the beginning

At first blush, a recent $6.5 million verdict looks like Exhibit A in the argument for never taking an employment-law case before a jury: You never know just how hard you’ll get hit.

And the organization in this case got smacked with a two-by-four: A five-week trial (which would be expensive enough even if it won). A seven-figure verdict. And six figures of attorney fees yet to be awarded.

Behind the scenes gaffes
And while the verdict got all the headlines, that’s not the whole story. We can tell you that behind the scenes, the HR department fumbled the ball in important ways.

Here’s how it started: George Alberigi, 52, hired on as a medical-care eligibility case worker with Sonoma County in 1980. Six years later, Alberigi was diagnosed with agoraphobia (fear of being trapped in a situation or place) and related panic attacks, conditions that made it difficult for him to talk with strangers, especially face to face.

For 15 years, Sonoma County accommodated Alberigi’s disability. They allowed him to do his medical-eligibility case work on the phone. And the accommodation seems to work: Alberigi got good performance reviews the whole time. In 2000, he even won a Distinguished Employee Award. On the heels of the award, in 2001, Alberigi applied for a promotion. He was turned down because that new position required face-to-face contact.

He grew depressed, and by 2004, his doctor ordered him to resign for medical reasons.
Alberigi sued: The jury awarded $1.5 million in back and future wages based on the assumption he’d never work again. It awarded $5 million in punitive damages for pain and suffering.

What’s missing from this picture?
Here’s where HR fumbled: When Alberigi requested accommodation, the organization not only turned him down for the promotion, it reviewed his current job.

Sonoma County concluded that the case-worker position he’d been doing for the previous 15 years via telephone now required face-to-face contact. He’d have to meet clients in person. If Alberigi refused, the county said it didn’t have to employ him any longer because he was unable to perform a key requirement of the job. When Alberigi complained about the change in job requirements, the county offered him other jobs that didn’t require interaction with the public (at the same salary).

Alberigi was particularly insulted that he was offered a job as a low-level “clerk-typist.” Instead, Alberigi continued as a case worker, meeting clients face-to-face. His mental state allegedly deteriorated because of the panic disorder. He eventually resigned for medical reasons and called a lawyer.

You know the result.

What you can do
The take-home for HR:

1. You can change the rules, but you need to grandfather the exceptions. Sonoma County was well within its rights to insist that its case workers meet clients face-to-face. It makes sense from a business perspective. But implementing the change is another issue. In this case, all the organization had to do to avoid this lawsuit was grandfather George Alberigi on the face-to-face meeting requirement and continue to accommodate his disability by allowing him to work on the phone.
2. Timing matters. The time to review someone’s current job and make big changes to the job description is not immediately after taking an adverse action, e.g., turning someone down for a promotion. Attorneys advise waiting at least six months to avoid making it look like retaliation or payback.
3. If a worker is being accommodated for a disability under the Americans with Disabilities Act (ADA) and the accommodation is working, you’re better off leaving it as is. If you must make a change, you’ll have to start the entire ADA accommodation process over again.
4. Review the necessity of the change itself. The question Sonoma County couldn’t answer was this: If face-to-face contact is so important to the success of the job, why was Alberigi able to get good performance reviews and a Distinguished Employee award?

Cite: George Alberigi v. Sonoma County, et al., No. SCV 233788, Sonoma County, CA, Superior Court.