Category Archives: ADA

Mental Health Conditions and the ADA

Mental healthIn many cases, making reasonable accommodations for employees’ physical conditions should seem straightforward enough.

Provide a hearing-impaired worker with the necessary phone equipment, for example. Allow a blind employee to bring his or her service dog to work. Lower the height of a wheelchair user’s desktop.

Addressing the needs of individuals with mental health conditions—which can be difficult to understand or even recognize—is a bit trickier for employers. Recent history gives us examples (like this one) of how organizations can run afoul of the American with Disabilities Act when dealing with mental health issues in the workplace.

This week, the U.S. Equal Employment Opportunity Commission issued a resource document it hopes will explain workplace protections and appropriate accommodations for employees and job applicants with mental health conditions under the ADA.

Judging by recent EEOC data, many employers could use some guidance in this area.

During fiscal year 2016, the organization resolved nearly 5,000 charges of discrimination based on mental health conditions, and obtained roughly $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations. And, EEOC charge data show that claims of discrimination based on mental health conditions are on the way up.

Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights is geared toward the individual employee, but can also be instructive for businesses. For instance, the document offers examples of possible accommodations to help individuals with mental health conditions perform their jobs, such as altering break and work schedules (scheduling work around therapy appointments, for example), providing quiet office space or devices that create a quiet work environment, making changes in supervisory methods and granting permission to work from home.

It also outlines scenarios in which employees or job applicants are allowed to keep a mental health condition private, and details situations that permit employers to ask medical questions, including queries surrounding mental health.

“Many people with common mental health conditions have important protections under the ADA,” said EEOC Chair Jenny R. Yang, in a statement. “Employers, job applicants and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees.”

Disability Stigma Alive and Well

Came across this post on LinkedIn the other day, reminding us all about the importance of giving disabled Americans the chance to 512903522-disabilityprove themselves in the workplace.

Included in the general reminder by Amber Fritsch, a talent-management consultant, were other reminders for employers — including  the new provisions regarding leave as a reasonable accommodation — the Employer-Provided Leave and the Americans with Disabilities Act — released by the Equal Employment Opportunity Commission earlier this year. Would be nice to think we’re moving in the right direction toward giving the more than 56 million Americans with disabilities a fair shake in corporate America.

But then I harked back to something I had come across earlier in the year — a mention of a movie I can’t say I’ve seen and can’t say I want to: Me Before You.

According to this recent post by Jennifer Laszlo Mizrahi, president of RespectAbilityUSA.org, the film is “the latest Hollywood movie to end with the assisted suicide or euthanasia of the lead character with a disability.”

She calls it “yet another case of ‘ableism’ — prejudice that people with disabilities are somehow less human, less valuable, less capable than others — and should simply die.”

Pretty grim description, but not too far removed from the stigma disabled job candidates still face, she says. The latest research from Mizrahi’s organization shows the numbers of working disabled Americans is still woefully low.

It cites findings that only one-in-three Americans with a disability has a job today and, of those who do, 400,000 work in sheltered workshops, also known as “enclaves” or “crews.” These institutions literally and legally can and frequently do pay people with disabilities sub-minimum wages, says Mizrahi. She adds:

“The lack of opportunity for people with disabilities leads to poverty, prison and, as we see in the fictionalized true story behind Me Before You, even death.”

In a follow-up conversation, Mizrahi cited a Kessler Foundation study showing 70 percent of people with disabilities are working age and currently striving for work. Only 34 percent have any job, however. From her vantage point …

“There has been NO improvement in the labor-force-participation rate in decades for people with disabilities. Zippo. And because other groups made progress and we did not, the gap in [those] rates between people with and those without disabilities has increased substantially.” 

She thinks a serious, systemic and ongoing communications campaign highlighting the benefits of inclusive hiring and self-employment is needed in this country so “people with disabilities can achieve the American dream, just like anyone else.”

Not sure why this hasn’t happened yet. Also not sure what the underlying problem is. And it’s not like we haven’t probed the matter. This recent HREOnline news analysis shows problems of recognizable bias in the hiring process still in existence at a majority of companies.

As Paula Brantner, executive director of Workplace Fairness in Silver Spring, Md., says in that story:

“You start with the adherence to the law [i.e., the Americans with Disabilities Act], but until you get to where people can actually work side-by-side with someone who has a disability, it’s going to be hard to overcome some of those deeply held biases that are really unfounded in reality.

“HR needs to send the message that this is a company that welcomes workers with disabilities and then facilitate that process every step of the way.”

HRE Editor David Shadovitz’s more-positive HRE Daily post last year at least cites some evidence that disabled workers and job applicants are starting to overcome some of these barriers.

The post includes statistics from John O’Neill, director of employment and disability research at the Kessler Foundation, showing that roughly 16 percent of those with disabilities say they’ve experienced barriers resulting from supervisors’ attitudes and about the same proportion experienced barriers resulting from co-workers’ attitudes.

But when you ask them about their ability to overcome those barriers, about 41 percent of the former said they were able to do that and 54 percent of the latter said the same.

So there’s hope. But the overcoming efforts shouldn’t rest on the shoulders of disabled workers alone.

Anxiety Disorders and the ADA

A recent Pennsylvania district court ruling underscores what one attorney calls the “fundamental difficulty” that employers face in responding to mental health-related disabilities in the workplace.

In Kiera Barber v. Subway, the U.S. District Court for the Middle District of Pennsylvania has ruled that Subway must head to trial to defend claims that the sandwich restaurant chain violated the Americans with Disabilities Act by terminating an employee rather than accommodate her disability.

The chain of events that led them to this point begins in the summer of 2012 …

Court records indicate that Kiera Barber—who worked as a “sandwich artist” at a Subway location in Harrisburg, Pa. for roughly two weeks starting in May 2012—completed an online employment application and subsequently interviewed with Akash Patel, the owner of the Harrisburg franchise. During that face-to-face meeting, Barber informed Patel that she suffers from anxiety and may need to take breaks when and if anxiety episodes occur during her shifts. (She also produced medical documentation of her anxiety disorder and social phobia, at Patel’s request.)

Patel, who had previously advised Barber that a sandwich artist’s duties included preparing sandwiches for and interacting with Subway customers, reportedly noted that Barber’s requested accommodation “wasn’t a problem.”

On June 12, however, Barber suffered an anxiety attack while preparing a sandwich at the front of the store, eventually retreating to an employee-only area to attempt to get her symptoms under control. According to Barber, Patel followed her to the back of the store, asking about her condition and pressuring her to return to work. When her condition did not improve, Barber requested permission to leave early.

And that’s where the concerned parties’ accounts of that June day begin to “diverge considerably,” according to court documents.

Barber says that Patel responded to her request by saying he “[didn’t] see any reason to keep training you if you’re going to keep having anxiety attacks.” She also testified that Patel “commanded” her to leave the store.

Barber claims she was never told that she was fired, but “perceived his order to leave as a formal termination of her employment with Subway.” Subway, however, maintains that Patel adequately accommodated Barber’s request and expected her to report for her next scheduled shift. When she didn’t, Patel concluded that Barber wasn’t coming back at all. Court records show that neither Barber nor Patel have initiated contact with the other since the June 12 incident.

It’s worth pointing out that this opinion is at the summary judgment stage, where the threshold for success is much lower than at trial or in the motion for summary judgment phase.

But, however the case plays out, it can still be instructive for employers, says Michael Studenka, a Newport Beach, Calif.-based partner at Newmeyer & Dillion.

Because mental-health disabilities are invisible to the eye, managers can simply perceive behavioral symptoms—tardiness, a lack of attention to detail, an inability to relate to co-workers or customers, for instance—as substandard work performance, says Studenka.

As such, mental health-related issues can be “a source of great exposure” for an organization, he says.

“Employers have an obligation to engage in the interactive process when they know or have reason to know that an employee is suffering from a disability in the workplace,” continues Studenka. “HR cannot be everywhere at once, and thus, in order to comply with this requirement, employers must remain vigilant in regularly training supervisors to recognize potential mental-health disabilities that exist in their workforce, as well as handling requests for accommodations based upon the same.”

Managers, he says, are “the eyes and ears of the company,” and “must understand what they need to do if they become aware of, or even suspect that an employee is dealing with a mental-health issue.”

Making Your Career Site More Accommodating

Earlier this week a press release arrived in my email that served as a reminder of the work that still remains to be done as far as career sites are concerned.

ThinkstockPhotos-464672063In this case, the question at hand is, How accommodating is our career site for candidates who are deaf or have a hearing impairment?

The bottom line: Most organizations’ career sites are severely lacking on this front.

The findings come from a study conducted by CareerXroads and Middlesex County College in New Jersey.

As the press release explains …

“The study, which took place over four months and used the fictional job seeker Jack ‘Jacque’ Coostow to probe some of the world’s most admired companies, found that companies are missing fundamental pieces in ensuring the deaf and hearing impaired have what they need to learn about and apply for jobs.

Middlesex students submitted Coostow’s résumé for positions at the 100 companies on Fortune’s 2014 Best Companies To Work For list. The companies on this list are widely admired for their recruiting and human resources practices. They are considered models for organizations worldwide. Many of them have repeatedly touted their commitments to diversity hiring, including individuals with physical disabilities.”

Among the findings …

  • Three in 10 companies provided a phone number or email address that would allow deaf or hearing-impaired job seekers to access resources for their special communication needs.
  • Roughly one in 10 companies had a TTY line, also called a text telephone or Teletypewriter, that enables deaf and hearing impaired individuals to communicate by phone.
  • One in five companies asked applicants if they had preferences in communication.

You’d think we’d be further along by now than that. No?

Target Pays the Price for Problematic Assessments

You never have to look far for examples of big companies spending big money to deal with claims of discriminatory employment practices.

This week’s cautionary tale comes courtesy of Target Corp.

On Monday, the Minneapolis-based discount chain agreed to pay $2.8 million to resolve charges of discrimination stemming from employment assessments used by Target, which “disproportionately screened out applicants for exempt-level professional positions based on race and sex,” according to the Equal Employment Opportunity Commission. The payout will be distributed among more than 3,000 individuals.

In its investigation of the retail giant, the EEOC determined that the assessment tests Target administered to thousands of candidates—who were ultimately rejected—for upper-level positions were not job-related, and violated Title VII of the Civils Right Act of 1964.

In addition to finding that the assessments unduly eliminated individuals in particular groups from consideration—namely African-Americans, Asians and women, according to the EEOC—the Washington-based agency determined that one of the assessments Target had been using violated the American with Disabilities Act. In this case, applicants were subjected to medical examinations prior to an offer of employment, which, as the EEOC notes, is prohibited by the ADA. Finally, the EEOC found that Target committed recordkeeping violations by failing to maintain records adequately enough to evaluate the impact of its hiring processes.

While maintaining that it didn’t act improperly regarding the assessments, Target did stop using the tests in question during the EEOC’s investigation, and has “agreed to better track its testing process and check for impact based on race, ethnicity and gender,” according to Target spokeswoman Molly Snyder.

In the same statement, Snyder noted that Target had relied on these tests “over the past decade,” and said the EEOC concluded that “only a small fraction of the assessments … could have been problematic.”

The settlement underscores the “quite risky” nature of the pre-employment assessments commonly used by many employers, says Tashwanda Pinchback Dixon, an Atlanta-based attorney at Balch & Bingham, and a member of the firm’s labor and employment and litigation practice groups.

“It’s important that employers take a very close look at these tests and make sure there is a clear link to business necessity,” says Dixon, whose experience includes focusing on Title VII sex and race discrimination claims.

Ensuring such a connection “is even more critical with tests that seek medical information, because of the ADA and the Genetic Information Nondiscrimination Act,” adds Dixon.

In most instances, she says, “a case can be made for business necessity when the position requires manual labor, such as manual lifting requirements.”

In Target’s case, however, “the link to business necessity is not as obvious.”

In light of this week’s settlement, Dixon says that employers should expect their pre-employment assessments to come under scrutiny by candidates and—if brought to its attention—the EEOC.

As such, “employers should also evaluate and monitor whether their assessments have an adverse impact on any protected class,” she says, “including race, gender and individuals with disabilities.”

Know When the ADA Trumps Your Policy

101390464 -- gavel and law booksBeware your urge to discipline.

That seems the best mantra for HR leaders in this new ADA day.

Two reminders of the mounting murkiness when it comes to drawing the line between your work policies and the amended Americans with Disabilities Act floated my way recently in this piece from the Society for Human Resource Management (registration required) and this from The Growth Co., headed up by Lynne Curry.

The SHRM piece highlights a $180,000 settlement Walgreens agreed to pay a cashier who the company fired after she took and ate a $1.39 bag of potato chips without paying for it. Turns out the cashier, Josefina Hernandez, was a diabetic who needed the chips during a hypoglycemic attack to stabilize her blood sugar.

Also turns out, in this age of heightened disability sensitivity and the need for employers to be sure they’re engaging in reasonable-accommodation discussions and the interactive process, Walgreens apparently did everything wrong. (Requests for comments from Walgreens have not been returned.)

According to the piece, when a loss-control supervisor asked for an explanation after finding the empty potato-chip bag under the counter at her cash register, Hernandez wrote in a statement, “My sugar low, not have time.” The supervisor didn’t know what she meant, so she was fired for violating Walgreens’ anti-grazing policy. On the contrary, the courts found, it was Walgreens that was in violation, of the ADA.

Had HR been involved throughout the investigation and pre-termination process, Walgreens would probably have been $180,000 richer. As Robin Shea, an attorney with Constangy, Brooks & Smith, says in the piece, “HR people are generally in the best position” to determine whether workplace discipline and/or termination is an overreaction.

“If it appears that the employer is using a nuclear weapon to kill a gnat, then maybe termination is not the answer,” she tells SHRM.

The other piece concerns alcohol. In it, Curry reminds us that, as much as an employee’s alcohol dependence brings everyone down — employee, co-workers and employer — and although you can establish policies prohibiting alcohol consumption at work or prior to work events, an alcoholic does have rights.

For the record, here’s Curry on that:

“According to the federal Equal Employment Opportunity Commission, an alcoholic who can perform the essential functions of his [or her] job may have a disability requiring employer accommodation under the Americans with Disabilities Act. The courts are fairly unanimous in ruling that an employer needs to grant at least one leave of absence so an alcohol-dependent employee can participate in a treatment program if the employee hasn’t misused alcohol on the job or engaged in misconduct.

“For example, in the landmark Schmidt v. Safeway Inc. case, the court ruled that the ADA may require an employer to provide a leave of absence to an employee with an alcohol problem if it is likely that the employee would be able safely to perform his duties following treatment. With an alcohol-dependent manager, a leave of absence for outpatient or inpatient treatment may be the logical accommodation.”

At the same time, she writes:

” … alcoholism doesn’t immunize managers or employees from the consequences of their actions. Employers can hold alcohol-dependent managers and employees to the same performance and behavior standards as non-alcoholics and discipline or discharge an alcoholic whose alcohol use adversely affects his job performance. As an example, if an alcoholic employee often arrives late to work or makes frequent errors, the employer can take disciplinary action based on the poor job performance and conduct. Furthermore, the 2nd U.S. Circuit Court of Appeals ruled that the ADA does not protect an employee from termination for alcohol-related absenteeism when reliable attendance at scheduled shifts is an essential job function.”

Where does this leave us? I guess with a simple “Be Careful.” And in today’s increasingly employee-supportive legal landscape, “Consult Counsel,” too.

As clear-cut as it may seem that certain activities — such as stealing company property and alcohol abuse — have no legitimate place in your organization, except as forbidden zones in your employee handbook, just remember to beware the law, where black-and-white mandates are far outweighed by shades of gray.

Increased Skepticism Around EEOC Claims?

lawsuitAccording to at least one attorney, a recent Sixth Circuit appeals court ruling in a disability discrimination case underscores the federal courts’ increasingly cynical view of EEOC claims.

An overview of what led to the April 10 decision in EEOC v. Ford Motor Co.:

Jane Harris, a now-former Ford employee with irritable bowel syndrome, sought a job schedule of her choosing, which would allow her to work from home as needed, up to four days a week. Ford denied her request, determining that “regular and predictable on-site attendance” was essential to Harris’s “highly interactive” job as a resale buyer with the company.

Early in her career with Ford, Harris—who joined the automaker in 2003—earned awards and accolades for what court documents describe as her “strong commodity of knowledge” and “diligent work effort.” Her performance soon deteriorated, however, and by her fifth full year with the company, Harris ranked in the bottom 10 percent of her peer group within Ford. By 2009, her last year with the organization, she “was not performing the basic functions of her position,” according to court records.

In addition, Harris missed an average of 1.5 work days per week in 2008, and frequently arrived at work late and left early, court records indicate.

Harris’ irritable bowel syndrome naturally exacerbated the situation, with her symptoms contributing to greater stress. In turn, the added stress worsened her symptoms and made it more likely for her to miss work.

Court records suggest that Ford “tried to help” Harris, adjusting her work schedule and allowing her to work from home on an ad hoc basis, for instance. But, despite these measures being taken, Harris was still “unable to establish regular and consistent work hours” and failed “to perform the core objectives of the job.”

After Ford attempted to offer alternative accommodations—some of which Harris rejected—she was terminated in September 2009, as a result of what the company called “several years of subpar performance and high absences.”

In August 2011, the EEOC sued Ford under the Americans with Disabilities Act. While the Sixth Circuit ruled against Ford in an April 2014 decision, an appellate panel voted to rehear that ruling. The court ultimately reversed that decision, noting that an employee with a disability is not qualified for a position if he or she cannot perform the necessary functions of the role with or without reasonable accommodation. The court noted that telecommuting may be a reasonable accommodation per the ADA, except in a scenario in which regular attendance is essential to performing the job’s critical functions.

The EEOC “has been pursuing telecommuting claims on a regular basis,” says Mark Girouard, a Minneapolis-based labor and employment attorney with Nilan Johnson Lewis.

This decision, however, figures to make establishing these claims more difficult for the organization, says Girouard.

“Obviously, each position must be analyzed individually, but the Sixth Circuit’s description of the job at issue in this case could be applied to many other positions.”

In other words, there are many jobs where availability to participate in face-to-face interactions should necessitate regular and predictable performance, he says, adding that “the en banc decision makes clear that courts should defer to employers’ business judgment on that issue.”

Last week’s decision “adds to the list of recent major losses for the EEOC,” says Girouard. “Separate and apart from the substance of the decision, the fact that the EEOC lost another major lawsuit highlights the increasing skepticism applied to the EEOC by the federal courts.”

2014’s Top 10 Posts

Here at The Leader Board, it was another interesting year covering the HR arena, with issues ranging from the controversy surrounding the HR certification, to lawsuits based on a worker’s commute, to HR leaders’ efforts to ensure their organizations’ compliance with the Affordable Care Act and various other legal requirements, just to name a few.

Below are links to the top 10 most-read posts of 2014, according to Google Analytics.

When viewed together, the posts create an accurate mosaic of the issues HR leaders are faced this year and are likely to continue dealing with into the new year.

Enjoy!

  1. SHRM Rolls Out New Certification (May 13)
  2. HR Plaintiffs Build Their Case Against Lowe’s (Jan. 24)
  3. Google Tackles Incentives and Rewards (April 29)
  4. More Restrictions on Criminal-Background Checks (Feb. 10)
  5. Employers Missing ADA Coverage in FMLA Cases (June 30)
  6. Friedman Shakes It Up at SHRM (June 23)
  7. ‘The 27 Challenges Managers Face’ (July 28)
  8. Who’s Leading the Way? (Nov. 13)
  9. Woman Sues Ex-Employer Over Commute (July 2)
  10. Giving HR the Boot (April 9)

Yes, a ‘Cantankerous Jerk’ Can Be Fired

177030950 -- angry bossCan a person be lawfully terminated just for being a hard-core grump? Yes, says the U.S. Court of Appeals for the Ninth Circuit in the case of Matthew Weaving v. City of Hillsboro.

Weaving, an officer with the Hillsboro (Ore.) Police Department, was cited several times over a period of years for conflicts with fellow employees. A formal report — issued after a departmental investigation of an officer’s grievance about him — concluded he was “tyrannical, unapproachable, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” (That’s quite a list.)

Based on the investigation, which also found Weaving had created a hostile work environment and did not possess the emotional intelligence to work in a team environment, he was fired Dec. 11, 2009, after three years with the force.

He sued under the Americans with Disabilities Act, claiming he had been diagnosed with attention deficit hyperactivity disorder, and this condition caused his work conflicts and limited his ability to work or interact with others (a requirement of his job).

He contended his ADHD was a disability, which a district court upheld, but the appeals court reversed. (For everything you ever wanted to know about Weaving’s contention and how both courts viewed the ADHD/ADA issue, see both links above.)

Considering Weaving’s argument that ADHD falls under the ADA, I thought I’d share several earlier blog posts from some of us at HRE that delve into other expansions of, or attempts to expand, the definition of disability under the law.

This one, by David Shadovitz, delves into an appeals court ruling establishing that temporary impairments are now allowed under the law so long as they’re severe enough.

This post, by Mark McGraw, also gets into the temporary-condition allowance, in a different lawsuit, and mentions the American Medical Association’s new definition of obesity as a disease, adding exponentially to the ranks of the disabled.

And this from me a few years back highlights an informal letter issued by the Equal Employment Opportunities Commission warning that requiring a high-school diploma from a job applicant might violate the Americans with Disabilities Act because the requirement could effectively screen out anyone unable to graduate because of a learning disability.

Meanwhile, in this latest case, employers have good reason to breathe a sigh of relief, says Myra Creighton, a partner with Atlanta-based Fisher & Phillips. The case, she told me, “upholds the principle that employers can enforce their employee-conduct standards governing personal interaction without worrying that the employee will blame his or her bad behavior on his or her disability.”

The ruling doesn’t, however, rule out ADHD as a disability if the plaintiff can prove the condition limits his or her ability to work.

As the Practical Law piece in the first link above puts it, the Ninth Circuit majority held “that the employee’s condition … did not rise to the level of disability [and argued] that a different holding … would open employers to potential liability each time they take an adverse-employment action concerning a hostile employee.”

The dissenting minority, however, it says, notes that “employers are [still] left in the complicated position of having to determine whether an individual, who has been properly diagnosed with ADHD, should be deemed disabled or just a jerk.”