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ADA & account-Ability


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HR & the Law in the News
May 2015, Volume 14, Issue 5
Hello again and welcome to the latest edition of FiveL Company's monthly e-newsletter, bringing you some of the latest news related to employment policies, practices and programs. 

Check out the upcoming events including this month's webcast, "ADA Updates" plus archived programs! Click here for more info including 2015 discounted, annual subscriptions still available - get the remaining 7 for the price of 6! 
The ADA & account-Ability

Don't answer this question out loud you have any bullies in your workplace?  If so, I think this case might be of interest to you and to all employers and managers.  If not, note that May is Mental Health Awareness month so this case is a timely illustration of employers' obligations under the Americans with Disabilities Act (ADA).

You likely already know that the ADA, which covers employers with 15 or more employees, prohibits discrimination against an individual with a disability.  A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities (MLA). The EEOC and some courts have taken the position that the "ability to interact with others" e.g., getting along well with others is a MLA. 

So back to the case. An employee had been diagnosed since the age of eight with myriad disorders that adversely impacted her ability to interact with others. She and her management team had a few conversations about her poor work performance. When the employer finally fired her she hit them with the ADA trifecta: (1) discrimination; (2) retaliation; and (3) failure to provide reasonable accommodation.  Once again, if you find these issues confusing so do the courts. The decision of the 4th U.S. Circuit Court of Appeals (covering MD, VA, WV, NC & SC) pulled a complete 180 on the lower court, reversing the lower court's ruling of summary judgment on all three counts in favor of the employer! Why? Consider the following.

There is an important distinction, although not always clear between having the ability to do something and being held accountable for doing it. Far too often I get questions about how to manage (around) bullies in the workplace. And more often than not the question is about a bully boss. Generally, the issue is not whether that person has the ability to act with civility. The question is more often when an employee has the ability but either chooses to be a bully or acts without regard to civility and bullies others then what do we do?  

So let's look briefly at each of the three claims and find some practical application.


Disability Discrimination? The court noted that a person does not have to live as a "hermit" to demonstrate that they are disabled in their ability to interact with others. The fact that the employee had disclosed this problem and the employer was aware of her expressions of concern were enough to establish sufficient evidence to make the issue triable. And (my HR Peeps will love this) the court found no documentation in the employee's HR file indicating any performance issues, giving rise to a reasonable inference that perhaps the medical condition was, in fact the cause for the discharge.

ADA Retaliation? The employee sent an email to her immediate supervisor asking for a reasonable accommodation, including training to transfer to another position.  The supervisor told her only the manager could make that decision. So the employee forwarded her email to the manager who was out on vacation.  When the manager returned she received a report that the employee had been sleeping on duty. The next day the manager called the employee into a meeting and fired her. Later the manager contended that she did not read the employee's email while she was on vacation and not until after the discharge meeting. Ever heard, "timing is everything" or "appearance is everything."  Well, they sure can make an impact.  The request for accommodation was so close to termination it sure gave the appearance of retaliation. And the employee's email was found printed and lying on the manager's desk immediately before the discharge meeting. That sure made it appear reasonable that the manager either could have or should have seen the employee's request prior to the meeting.


Failure to Provide Reasonable Accommodation?  Possible strike #3 said the 4th Circuit. Even if the manager did not know about the email request the supervisor did. The supervisor even had a brief discussion with the employee.  The supervisor was a link and should have ensured that request was addressed before any adverse employment action was taken.


Lessons Learned?

  • Document, document, document.  If you have zero documentation regarding unsatisfactory work performance (conduct, attendance, punctuality, etc.) it will be difficult to demonstrate that was your reason for termination was for anything other than some unlawful, discriminatory reason. So listen to your HR representatives. When they ask you for documentation they're just the messenger speaking on behalf of myriad third parties (federal and state agencies, courts, plaintiffs' attorneys) who will ask you for it if HR doesn't. 
  • Train! Be sure every person who supervises even one employee understands the important role he or she plays as an agent of your company.  The supervisor's (in)action can create liability for the company, and sometimes for the supervisor as an individual. So keep the company safe and your individual supervisors safe - well safer at least. 

The ADA continues to be a hot topic and national Mental Health Awareness Month seems to be a great time to provide some updates.  So join this month's webcast, "ADA Updates." Just click here for more information or to register. $49 pp. Want your management team to attend? Click here for group rates. 

Next Webcast
This month's webcast, "ADA Updates
May 27, 2015 10:00 - 11:15 a.m. EST

Click here for a program description or to register.


$49 per person. Live and archived webcasts are pre-approved by HRCI and SHRM for 1.25 credits. 
Discounted group rates available. Click here for more information. 
Get the remaining 7 for the price of 6
Click here for more information.


Upcoming Events: Click here for a full listing of public and private speaking engagements, seminars and conferences.

Upcoming Public Speaking Events
Wednesday, May 20th - "Employment Law Update" presented for the members and guests of the HR Association of Southern Maryland (HRASM), 9:00 - 12:30, Waldorf, MD.

Friday, June 12th - FiveL Company's 9th Annual "HR & the Law" full-day seminar, Columbia, MD. Pre-approved by HRCI & SHRM for 6.5 credits. Seating is already 50% sold. Click here for more information or to register. 

Wednesday, June 17th - "Employment Law, Legislative & Regulatory Update" hosted by the Maryland Association of Affirmative Action Officers (MAAAO).  
Upcoming Client Training Programs
  • Maintaining an Inclusive Workplace - CT, MA, MD
  • HR & the Law for Managers - MD
  • ADA, FMLA & Inclusive Workplace - 4 sessions, MD
  • Tactical & Practical Employee Relations - MD
Compliments, Complaints & Compliance
How long has it been since you last received an employee complaint?  Minutes? Hours? Weeks or months?  The first thing I would share with you is to take your next complaint as a compliment. Research shows that when it comes to workplace bullying a key reason employees don't complain is because they think their employer will do nothing about it.  So when an employee complains to you take it as a sign of trust; the person believes you can help and will.  Now from the more practical side.  

How A Complaint is Made. How should employees complain?  For example, do you have a policy that addresses how an employee is required to file a "formal" complaint?  Is there a difference between informal and formal?  Should an employer require employees to put a complaint in writing?  As I review Employee Handbooks I am surprised how frequently I read this requirement. Well, the EEOC and the U.S. Supreme Court (SCOTUS) would say, "No." The EEOC's position is that requiring employees to submit their complaints in writing might have a "chilling" effect, discouraging them from doing so. SCOTUS ruled in 2011 that an oral complaint constituted "filing" a complaint under the Fair Labor Standards Act (FLSA). Let's face it; if employees feel they can't complain to you they will go to someone else so pick your poison: accept internal, oral complaints or have your employees go to...the EEOC, state commission or a plaintiff's attorney. 

To Whom a Complaint is Made. What SCOTUS declined to address in 2011 was whether an employee has filed a complaint when he complains to his employer rather than a government agency like the U,S. Department of Labor. Well, on April 20th the U.S. 2nd Circuit Court of Appeals (covering NY, VT & CT) held that an oral complaint to an employer constitutes the filing of a complaint under the FLSA.  So what?  Well, the FLSA prohibits retaliation against an employee who files a complaint can guess what this case was about.  

Practical Application (again).
  • Perhaps reconsider distinguishing between formal or informal complaints in your policy or practice.  Let your employees know that you will conduct a prompt and proper investigation of any concern they share.
  • If you require employees to submit a complaint in writing talk to your company's legal counsel about modifying that policy or practice.
  • Train your managers!  Remember the case above when the supervisor did not talk to the manager about the employee's concern before they fired her? Here again we see how important it is that managers and supervisors partner with HR.  If an employee shares a concern, work with HR or your business owner/manager to walk through next steps and action items. 

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters. 


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