EEOC: Hospital Violated Title VII by Not Accommodating High-Risk Pregnant Employee

Whether an employer has to reasonably accommodate a pregnant employee as it would a nonpregnant employee is an issue now before the U.S. Supreme Court. In the meantime, the EEOC has sued another employer, claiming that it violated Title VII By denying a pregnant employee an accommodation even though it had accommodated a male employee with a temporary impairment.

The EEOC took up the cause this week of a female employee at Roseland Community Hospital in Chicago who claimed that rather accommodate her high-risk pregnancy, it denied her an accommodation and fired her.

According to the complaint, Roseland refused to accommodate the employee consistent with her medical restrictions by not requiring her to be available to restrain disorderly and combative patients, and went on to fire her.  On the other hand, a male security guard with an injury sought an accommodation so that he would not be required to restrain patients, and he was assigned to a desk job.

“You can’t deny a female employee a temporary change in her duties due to her pregnancy while providing the same accommodation to a man. That’s pregnancy discrimination and it can’t pass muster under federal law,” said John Rowe, director of the EEOC’s Chicago district office.

Read more about the case.

 

 

DOL Proposals Rule to Protect Federal Contractor Employees Right to Discuss Pay

If you’re a federal contractor and are tempted to clamp down on your employees’ talking among each other about their pay, don’t.

That’s forbidden under Executive Order 13665 signed in April by President Obama

Now the Labor Department’s Office of Federal Contract Compliance Programs has put some meat on the bones of that executive order, publishing today proposed rules addressing pay secrecy. Under the proposal, federal contractors must allow employees to discuss their wages with one another except in two circumstances: the conversations would be disruptive, or the employee has access to the compensation information by virtue of their job duties (for example, HR professionals).

Contractors would have to publish these guidelines in employee manuals and handbooks.

To read the notice of proposed rulemaking, click here.

EEOC Sues Employer for GINA Violations

File this one under “What Were They Thinking”? The one area you never want to go with your employees is asking them about family medical history, yet that’s what the EEOC says that a New York City home care services agency allegedly did.

The EEOC announced today that it has sued BNV Home Care Agency for violating the Genetic Information Nondiscrimination Act by asking for family medical history–a form of prohibited genetic information–from a class of thousands of applicants and employees through an “Employee Health Assessment” form.

“The form asked the applicant or employee to indicate any illnesses experienced by family members, including health conditions such as diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy and cancer,” the EEOC said.  “BNV Home Care Agency required applicants to complete the form after offering them jobs but before hiring them, and employees were required to complete the form on an annual basis after starting their jobs.”

“GINA is clear: employers cannot ask applicants or employees for their family medical history,” said EEOC New York Regional Attorney Robert D. Rose.  “The EEOC will pursue these cases to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”

Read more about the lawsuit.

DOJ, Philly School Dist. Settle Religious Bias Suit Over Length of Muslim Employee’s Beard

Employers take note. You cannot out-of-hand turn down an employee’s request for a reasonable accommodation allowing an employee to wear a beard more than the prescribed length under the your rules unless it would cause undue hardship.

The School District of Philadelphia will no longer be able to routinely deny police officers’ requests to be able to wear their beards at longer length due to religious reasons. Under a settlement reached with the U.S. Department of Justice last week, the school district agreed to institute a procedure to handle reasonable accommodation request by officers seeking to be excused from its policy limiting beards to one-quarter inch.

DOJ had sued on behalf of Siddiq Abu-Bakr, a school police officer who is Muslim, and similarly-situated employees who maintain a beard longer than one-quarter inch for religious purposes but were denied a reasonable accommodation.

“Consistent with his religious beliefs, Abu-Bakr has maintained a beard longer than one-quarter inch the entire time that he has worked for the school district, with no indication that the beard diminished his performance.”

Under the agreement, the school district agreed to:

  • develop and distribute a revised school police officer proper attire & appearance policy, which will include a procedure by which school police officers can request a religious accommodation;
  •  notify current and prospective school police officers that their religious accommodation requests will be considered on an individualized basis and that the school district will engage in an interactive process with the school police officers before denying any religious accommodation requests under the revised school police officer proper attire & appearance policy;
  • provide mandatory training on religious accommodation to all supervisors, managers, human resources officials and other individuals who may receive inquiries from school police officers regarding the revised school police officer proper attire & appearance policy

The school district also will pay compensatory damages to two similarly-situated employees and will expunge all discipline related to the policy from their personnel files.

EEOC: Employee Violated ADA in Treatment of Employee With Congenital Abnormality

The EEOC has taken a Southern health care organization to court over its treatment of employee who suffered a congenital abnormality, charging it violated the Americans With Disabilities Act in the way it handled her situation.

The lawsuit recounted that the employee, Cecelia Whitten, has congenital orthopedic abnormalities that, since birth, have caused her to have difficulty standing for long periods, walking long distances and keeping her balance. Whitten began working for McLeod Health in 1984 as a communications specialist. In 2012, McLeod required Whitten to submit to two medical examinations as a result of symptoms related to her disability. Whitten was placed on leave pending the completion of the medical examinations. As a result of one of the medical examinations, McLeod’s Occupational Health Department recommended certain job accommodations for Whitten. Around Aug. 13, 2012, McLeod informed Whitten that she could not return to work in her position as a communications specialist because McLeod could not provide her with certain job accommodations. The EEOC said that despite the fact that Whitten could perform her job duties, McLeod did not allow her to return to work but rather fired her on Feb. 12, 2013 when she exhausted her Family and Medical Leave Act leave.

The EEOC said that this conduct violates the ADA because it was based assumptions about Whitten’s disability. “In this case, Ms. Whitten had been performing her job for almost 30 years, when she was fired because of assumptions associated with her disability. The EEOC is here to fight for the rights of people like Cecelia Whitten.”

Read more.

 

Depression at Work

In this column, regular contributor and HR consultant Robin Paggi encourages employers to be proactive in dealing with employees who are depressed, while making sure they observe laws that make it illegal to discriminate against an individual because of mental disability.

Depression at Work: The Challenges and Opportunities for Employers

by Robin Paggi MA, SPHR-CA, CPLP, CPC

The suicide of actor Robin Williams, who reportedly was suffering from severe depression, is a harsh reminder of how devastating the illness can be.

While Williams was certainly a unique individual, his battle with depression was not unique. Indeed, each year about 25 million U.S. adults experience major depressive disorder, according to the National Institute of Mental Disorders.

Because major depression is one of the most common mental disorders in the U.S., it is imperative that employers and supervisors know what to do if employees reveal they have the disorder (or something similar) or if it appears that they do.

Employees who reveal that they suffer from depression are probably doing so because they need some time off work or other accommodation to manage their illness. California’s Fair Employment and Housing Act requires employers with five or more employees to provide a reasonable accommodation to employees whose illness makes the performance of a major life activity difficult. Major life activities include physical activities (breathing, walking, hearing, seeing), mental activities (thinking, communicating), social activities (interacting with others), and working.

Employers and supervisors may request that the employee provide medical certification to substantiate that an accommodation is needed. Once that’s provided, they need to engage in what is called the interactive process with the employee to determine what the employee might need in order to continue to perform his or her essential job duties. Although the preferences of the employee should be considered, the accommodation implemented should be one that is most appropriate for the employer as well as the employee. (For more information, see “Disability Under the Fair Employment and Housing Act: What You Should Know About the Law” at http://www.dfeh.ca.gov.)

Additionally, employees needing time off of work because of depression might be eligible for Family Medical Leave if they work for an employer with 50 or more employees.

Employers and supervisors who suspect that an employee is depressed because of a decline in performance or a change in the employee’s behavior (such as lack of cooperation, absenteeism, irritability, excessive crying) should schedule a meeting with the employee and follow a format like this (based on “How to Talk to a Depressed Employee” by Joni E. Johnston, Psy.D.):

  1. State your concern for the employee. “Robin, I want to talk to you because I’m concerned about you.”
  2. Talk about observable behavior. “You missed several important deadlines over the past two weeks.”
  3. Acknowledge the change in behavior. “That’s just not like you.”
  4. Encourage action. “If things in your personal life are affecting you, we have a confidential employee assistance program that you can call.” Or, if your company doesn’t have an EAP, “you might want to talk to a professional about it.”
  5. Be sympathetic, but limit the conversation if the employee begins to reveal personal information.
  6. Reinforce your concern. “I really want to help you get back on track.”
  7. Reinforce the need for performance improvement. “It’s up to you whether you seek professional help or not, but I still need for you to meet your deadlines.”

While the last line above might sound harsh, it is important that employees know that suffering from a mental illness does not excuse them from having to meet performance standards. It also might be the impetus that they need to seek help.

Finally, employers and supervisors should know that discrimination against applicants and employees because of mental disabilities (or perceived disabilities) is unlawful and that any information about such disabilities must remain confidential.

Depression can be devastating. However, with the right treatment, it can be managed and worked around. Getting the right treatment is up to the employee. Helping the employee work around it (with reasonable accommodations and performance discussions) is up to the employer.

Robin Paggi is the Training Coordinator at Worklogic HR.

Her last column for this blog was on how domestic violence affects the workplace.

Before that, she wrote for this blog on the topic of fashion rules do’s and dont’s.

She has also written on making sure terminations are not related to romance.

For other prior columns by Robin appearing in my blog, click here, here, here, and here.

EEOC: Donut Making Plant Violated Title VII By Not Accommodating 7th-Day Adventist Employee

There was an old Dunkin Donuts commercial where one person says, What time is it? And the other person replies, Time to make the donuts!

Well, for an employee with certain religious beliefs, maybe not just anytime is right to make the donuts. A Dunkin Donuts manufacturing facility in Arden, N.C. stands accused by the EEOC of failing to accommodate a Seventh Day Adventist who applied for a donut maker job at the plant. Problem was the management wanted him to start working on a Friday afternoon, which would have taken his shift through Friday night when the Seventh-Day Adventist Sabbath begins.

So after management revoked the job offer, and the EEOC got wind of what happened, well you can guess the rest. The EEOC sued the facility in federal court for a Title VII violation for not granting the applicant a reasonable accommodation that would allow him both to work and to observe his religion–the very essence of Title VII’s protection against religious discrimination.

The case is Equal Employment Opportunity Commission v. Citi Brands, LLC d/b/a Dunkin’ Donuts Bakery, Civil Action No. 1:13-CV-00236. You can read more about it here.

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