Posts belonging to Category discrimination

Service-Dog ‘Fakers’: Could It Happen at Work?

464734925 -- guide dogsThis was certainly intriguing: a release from KCRA in Sacramento, Calif., about a hearing before the California State Senate examining what appears to be a real problem out there: people masquerading their dogs as guide dogs for the disabled so they can bring them along to wherever they’re going.

I guess they would miss them that much, which says something about the kind of person who would conjure up such a scheme. Worse yet, what kind of person would actually then “play act” a disability, namely blindness?

“This is a big issue in California,” Phyllis Cheng, the executive director of the Fair Employment and Housing department, says in testimony. In fact, here is the entire senate-hearing report:

Here, too, is the Fox 45 news report on the problem:

So I’m wondering, could this become a problem in the workplace? I asked two employment attorneys — Keisha-Ann Gray at Proskauer (HREOnline‘s “Legal Clinic” columnist) and James McDonald, managing partner of the Irvine, Calif., office of Fisher & Phillips — for their takes on this.

They tell me that, although there is no hard-and-fast rule under the Americans with Disabilities Act requiring employers to allow guide dogs to accompany disabled employees, every employer with 15 or more employees is required to try and make a reasonable accommodation if the request is made, unless that accommodation would cause an undue hardship to the business or present a direct threat to health and safety.

Could this kind of cheating actually lead to workplace “dog parks” though? Well, maybe not dog parks, but both say yes, they could see this kind of problem occurring at work. Such widespread scheming is definitely humanely possible, they say. ”I know of people personally who claim their pets are service animals and they put a little vest on the animal so they can go in restaurants, etc.,” McDonald says.

Neither attorney gave much credence to this getting out of hand, necessarily, in corporate America. Thinking realistically, if you consider the fact that employees bringing dogs to work would then have to care for them for the entire day (and we’re talking food, exercise and potty breaks), “that might mitigate this a little bit,” McDonald says.

The bottom line to keep in mind, says Gray, is that this is the very type of situation that could get you in legal trouble if not handled properly. Faking questions aside, “once the employer is aware they have someone who can perform essential functions of the job, but would need help to perform the job based on a disability,” that employer must engage in a reasonable-accommodation dialogue.

And although “reasonable” does mean it does not create undue hardship or safety hazards, proving that a particular dog might bite or “seems irritable” could get dicey.

I’m thinking trying to nail someone for faking a disability or service-dog credentials could get dicey, too.

Best advice, from Gray: “If you’re thinking of denying a person a request for a reasonable accommodation, for whatever reason, get counsel involved.”

Momentum Building for Putting Disabled to Work

Nice to see how much attention RespectAbilityUSA has gotten in just a little more than a month since I posted this plea to employers by the Washington-based nonprofit to get more disabled Americans into the workforce.

122470463 -- disabled execThe group — dedicated to empowering people with disabilities — made sure I saw this latest release touting all the big names to have signed on since that plea went out Jan. 13, including BMX bike legend and host of MTV’s The Challenge, T.J. Lavin; Delaware Gov. Jack Markell; U.S. Rep. Pete Sessions, R-Texas; U.S. Rep. Brad Sherman, D-Calif.; and Paralympian Matt Cowdrey.

Yes, the word is getting out. So much so that Lavin is now starring in a new public-service ad for RespectAbilityUSA that started airing Feb. 14. In the ad, he says “whether it is me, you, or someone who just wants to work — we all should have the same opportunity to achieve the American dream.”

Last month’s post included results from a just-completed RespectAbility poll showing three out of four people with disabilities surveyed value a job and independence over government benefits. This latest announcement, one short month later, mentions companies that are starting to get it, such as Walgreen’s, EY and AMC. They “have found people with disabilities to be highly valued employees who drive their company’s productivity as loyal, safe employees,” the release says.

Now, says Respectability President Jennifer Laszlo Mizrahi, “it is time for other companies to open new doors for people with disabilities.”

“The bottom line,” she says, “is that people with disabilities want a hand up, not a hand out. They want to work side-by-side with people who don’t have disabilities, make their contribution to society, pay their taxes and achieve the American dream.”

I like how Lavin puts it, too: “Recognize the disability, respect the ability, but imagine the possibility.”

We’ll keep watching this momentum and where it heads. In the meantime, employers and their HR executives should be bracing for two final rule revisions — issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs and impacting affirmative-action plans for veterans and people with disabilities — that go into effect on March 24. I have a news analysis appearing soon on our website,, about these new rules and what they mean, and will share a link here when it goes live.

You might say the rules, revising the OFCCP’s Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 of the Rehabilitation Act, are the government’s way of ensuring this momentum does, indeed, go forward.

A Valuable Legal Lesson

courtroomThis recent Michigan court ruling may seem like a bit of a puzzler, but it could also be instructive for employers.

The United States Court of Appeals for the Sixth Circuit is sending the case of Deleon v. Kalamazoo County Road Commission to trial, ruling the plaintiff can proceed with suing the county for an adverse employment action motivated by discrimination—after being granted the very job transfer he had previously sought.

According to the suit:

In 2008, Kalamazoo County employee Robert Deleon applied for an internal transfer to the position of equipment and facilities superintendent. According to the job description, the role entailed working primarily in an office as well as a “garage where there is exposure to loud noises and diesel fumes.”

Initially passed over for the job, Deleon was involuntarily transferred into the position when it became available again in 2009. He subsequently sued the county, claiming the transfer was a retaliatory adverse employment action, in addition to alleging the working conditions in his new job led to him developing bronchitis as well as a cough and sinus headaches due to the aforementioned diesel fumes.

According to Kalamazoo County, Deleon never withdrew his initial request for the transfer, and did not complain at the time he received it.

In its ruling, however, the appeals court found Deleon had provided sufficient evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis, and that his work environment was “objectively intolerable.” The court also noted that Deleon applied for the position under the impression the move would include a $10,000 raise; a raise he never received, advancing the argument that his transfer was involuntary.

The case is “a classic example” of the challenges employers face in defending against discrimination claims, says Joel S. Barras, a Philadelphia-based partner in Reed Smith’s labor and employment practice.

Employers often spend tens of thousands of dollars in these cases, “which typically involve disproving a negative,” he says. “[It’s] no wonder there’s a cottage industry of plaintiffs’ lawyers who indiscriminately file claims against ‘deep-pocket’ employers, which only serve to detract focus from the cases of actual discrimination and retaliation.”

Nevertheless, this particular decision holds a valuable lesson for employers and HR, says Barras.

“The takeaway … is to always go the extra step, even if the outcome seems obvious.

“Common sense alone may not guarantee summary judgment,” he continues, advising employers in similar situations to ask the applicant if he or she still wants the job, clearly describe the working conditions, and make sure the candidate truly understands what the job entails.

There is a direct correlation between the amount of time and effort HR professionals expend on the front [end] of employment decisions and the chances for getting discrimination and retaliation suits dismissed quickly and relatively inexpensively.”

Is Anti-Unemployment Discrimination Going Global?

I received an interesting email the other day suggesting the European Union may be in the early stages of adopting legislation to classify individual unemployment as an equal-employment-opportunity issue.

134518530 -- unemployedActually, according to the source, Brussels, Belgium-based Ius Laboris, the suggestion is more like a tiny whisper, but it is safe to say the EU’s general directorate has expressed interest in passing pan-European legislation to classify individual unemployment as an EEO matter.

“In essence,” the email says, “this would mean ‘unemployment’ was a protected category on a par with race or religion, prohibiting employers and employment agencies from asking employees about their current employment status in a job interview, and creating the threat of legal action if a business was demonstrated to have discriminated against an applicant on the basis of unemployment.”

Not sure where this is going and/or in what time frame, IL’s spokesperson tells me. And though it comes on the heels of similar moves across the United States, it’s hard to tell how far the anti-unemployment-discrimination momentum will take us on this side of the pond either.

At the time I wrote this news piece on New York’s passage of such legislation, this is where things stood here: “New York City is only the most recent jurisdiction where legislative action has been taken to protect the unemployed. States that have already passed laws against such discrimination include Oregon (passed in March 2012) and New Jersey (2011). The District of Columbia passed a similar bill in May 2012. And as of May 2013, five states — New York, Pennsylvania, Massachusetts, Iowa and Minnesota — have introduced bills during the 2013 legislative session, with another 17 states considering doing so.” Sources tell me this is still the case.

Wondering how this trend will be impacted if the unemployment figures continue to suggest steady job growth, as noted in this Associated Press piece released Wednesday.

Whatever the case, I’m compelled to share with you HREOnlineTalent Management Columnist Peter Cappelli’s column from several years ago, advising against such discrimination because it simply doesn’t make business sense.



Will the EEOC Be Updating National-Origin Guidance?

There were some good signs in a public meeting in Washington yesterday (Nov. 13) that the U.S. Equal Employment Opportunity Commission may be willing to consider updating its guidance on national-origin discrimination issued after the 9/11 attacks.

177818736-- public meetingSuch is the gist of a blog post on Seyfarth Shaw’s Workplace Class Action Blog by Paul Kehoe, senior counsel in the employment law firm’s Washington office, who attended the meeting — aimed at hearing testimony about the challenges in today’s workplace related to national-origin discrimination, including English-only policies.

In a separate note about the meeting, Kehoe says the testimony “indicated some level of support for updated guidance from the EEOC.” He adds that, while it’s unclear whether the agency will actually revise the guidance, “an initial step to updating [a] guidance is to hold a public hearing.”

In his blog post, Kehoe describes some of testimony on both employer and employee sides:

Employer representatives suggested clarifying certain aspects of the current EEOC guidance and providing best practices, while fully considering employers’ legitimate interests and Title VII’s statutory intent. Advocates for workers suggested providing additional guidance narrowing the permissible instances where English-only policies would be appropriate and addressing ‘listener’or ‘implicit’ bias as it relates to customer preference and other issues.”

He also explains what’s at stake:

Currently, the EEOC’s guidance recognizes that claims may be brought under both disparate-treatment and disparate-impact theories of discrimination. Of course, in a disparate-treatment claim, the plaintiff would bear the ultimate burden of establishing pretext, while in a disparate-impact claim, the ultimate burden would fall on the employer to establish that the policy at issue was job-related and consistent with business necessity. Updated guidance would likely provide more context for the regulated community, but may ultimately make it more difficult for employers to comply with the EEOC’s view of Title VII.”

And in signing off, he provides some worthy employer caution:

Will the EEOC choose to update guidance in this area, which by Commission standards was recently completed in 2002, when there are other more pressing guidance documents to update? Only time will tell, but employers should review their language-related policies to determine whether they are in compliance with Title VII or if the policy needs additional consideration.”




Religious-Discrimination Claims Rising

Muslim woman at workAccording to a recent Wall Street Journal piece, The Equal Employment Opportunity Commission received 3,811 religious discrimination complaints last year.

While this number represents a dip from the record 4,151 religious-discrimination claims brought to the EEOC in 2011, the article notes that religion-based complaints have more than doubled in the past 15 years, and are growing at “a faster clip” than claims involving race, age, sex or disability, for example.

Part of this uptick “comes from employees—Muslims, Christians, Seventh-Day Adventists and others—who were denied requests to avoid work on Sabbath days,” according to the article. “Conflicts have also erupted over workers’ appearance, particularly in jobs requiring uniforms, involving food preparation and in image-focused fashion retailing.”

In September, for instance, New Albany, Ohio-based clothing chain Abercrombie & Fitch settled EEOC lawsuits involving two Muslim women and their hijabs, the veils typically worn to cover the head and chest of Muslim females. In one case, former employee Umme-Hani Khan said she was fired after an A & F manager said her hijab violated the company’s “Look Policy” dress code. The other suit alleged Abercrombie refused to hire an applicant who wore a hijab. Per the settlement, the retailer will inform applicants that exceptions to its “Look Policy” may be available, and must also regularly review its religious accommodation decisions and report to the EEOC twice annually.

Also in September, the EEOC sued Canonsburg, Pa.-based Consol Energy Inc., alleging the company pushed a long-time employee to retire after he objected to using a new biometric hand scanning device that tracks employee time and attendance. According to the claim, the employee repeatedly told mine officials that submitting to a biometric hand scanner violated his beliefs as an Evangelical Christian, and wrote a letter explaining the relationship between hand-scanning technology and the Mark of the Beast discussed in the Book of Revelation of the New Testament.

Earlier this year, the EEOC filed a suit charging that Star Transport Inc. refused to provide two employees with an accommodation of their religious beliefs when it terminated their employment because they refused to deliver alcohol.

Despite the growing number of religious discrimination complaints being brought to the EEOC, it remains a small number that actually reach the litigation stage. In fact, the EEOC filed nine religion-based lawsuits in fiscal year 2012, a drop from 15 in 2011 and 24 in 2010.

Still, settlements of religious discrimination claims such as those leveled against Abercrombie & Fitch often oblige companies to provide training and meet other requirements, as seen in Abercrombie & Fitch’s case. Other organizations may be wise to take note, as these settlements should serve “as a teaching example for other employers,” Jeanne Goldberg, senior attorney advisor with the EEOC, told the Wall Street Journal.

Crossing Over to the Daaahhhrk Side … Mwahahaha …

Thought this might make for a good Halloween post — a piece written by Merrily Archer, founder, president and CEO of Denver-based EEO Solutions and a former trial attorney for the U.S. Equal dv1137057-- dark sideEmployment Opportunity Commission. It’s all about … (steady your hobgoblin nerves) … the pro-employer daaahhrk side (insert eery music and a witch’s cackling howl).

Actually, the only scary part of Archer’s post is her first subhead — you guessed it: “The Dark Side.” Alarming, though, is the deep divide she describes between those going after the “evil” employers — those “villains” accused of discrimination, harassment, etc. — and the employers (and HR departments) themselves, simply trying to survive and comply in a “victim”-sided system.

Whatever faction you favor, you have to admit Archer knows each one well — each side of the ever-widening “good-guy/bad-guy” chasm, as she describes it. She’s walked and lived them both. Here’s a small reflection on her stint as an “employer-hater”:

I’d grown accustomed to the rhetoric: The EEOC and [Plaintiff Employment Lawyer Association] people did ‘God’s work’ and helped ‘victims’ of discrimination. By contrast, employers, especially the ones they were currently suing, were malevolently unenlightened, law-flouting discriminators that would discriminate, harass and retaliate with reckless abandon without their vigilance and the threat of liability.”

And a sampling of her growing disenchantment and concern that all was not necessarily right with the ship she happened to be on:

After doing ‘God’s work’ at the EEOC, however, I’d reached very different conclusions: (1) the people most ostensibly dedicated to improving the workplace make the worst employers; (2) in the most Machiavellian sense, rhetoric about ‘God’s work’ and ‘changing hearts and minds through litigation’ often just masks ego and greed; (3) the identity of the righteous ‘good guys’ is seldom clear; (4) discrimination and an employer’s ability to disprove discrimination are two very different things. Not surprisingly, when I left the EEOC to begin my employer-focused practice in 2000, my EEOC colleagues and the PELA people told me that I was joining the ‘Dark Side,’ even the ‘Forces of Evil.’

And here’s what she witnessed and went through as HR practitioners fell prey to governmental aggression:

In the victim/villain melodrama of discrimination litigation, the EEOC and PELA people cast — and treat — HR managers as incompetent boobs or raging racists. After hours of intense deposition questioning, this treatment could make most HR practitioners cry … . As a defense attorney, I’ve had to intervene in the most condescending, unconscionable bullying of HR practitioners and managers in depositions and investigations, all ostensibly in the name of vindicating another person’s rights. But to the EEOC and employee-side counsel that perpetuate [that] victim/villain paradigm, the inherent ‘evil’ of discrimination justifies their abuse of other humans accused of it. When you’re doing God’s work, after all, all is allowed.”

Lastly, as an attorney criticizing attorneys, she argues in favor of both sides uniting to rid workplaces of working conditions that, in many cases, definitely do need to change:

In theory, the EEOC, employers, civil-rights groups, and the HR community share much common ground in advancing equal-employment opportunity, but for a victim/villain model made by attorneys, for the benefit of attorneys. Employment discrimination, workplace inclusiveness and the costs to employers of EEO disputes are complex, multifaceted social problems that deserve more analysis than victim/villain caricatures. Our progress toward full inclusiveness, after all, depends on our ability to find common ground, not deepen divides.”

Granted, other voices deserve to be heard on this apparent and troubling divisiveness between the EEOC and the employers it was created to keep an eye on. But Archer’s alone sure sheds some illuminating light on a problem I, for one, didn’t know much about: the other “victims” on the ”dahhrrk side” of business.

A Broader Definition of ‘Reasonable Accommodation’

Meanwhile …

As the nation stays riveted on Washington’s dramatic avoidance of a default/continued-shutdown guillotine, I’ll venture to point out that legal events impacting employers have 93424272-- handicap parkingbeen rumbling along in other rings of this governmental circus.

A posting about this recent case, for instance, caught my eye — a ruling from the Fifth Circuit Court of Appeals that further broadens the Americans with Disabilities Act’s definition of “reasonable accommodation” to include — well, sort of — granting a free on-site parking space so an employee has an easier time getting to the door.

The ruling in the case, Feist vs. State of Louisiana, essentially takes employers beyond the ADA requirement that an employee be accommodated so he or she can accomplish the essential functions of the job to now include a guidance from the U.S. Equal Employment Opportunity Commission saying reasonable accommodation must include anything that enables workers “to enjoy equal benefits and privileges of employment.”

In this case, yes, a free parking spot — which Assistant Attorney General Pauline Feist requested of her employer, the Louisiana Department of Justice, due to osteoarthritis in her knee. (According to the case, she was denied the spot by her employer, filed a discrimination charge with the EEOC, was later fired for poor performance, and filed suit in the Fifth Circuit’s district court, claiming disability bias and retaliation. The district court ruled in favor of the Louisiana DOJ, but the appeals court took her side, essentially saying there was more to her accommodation than simply allowing her to do the essential functions of the job.)

“In short, the court said, there doesn’t need to be a link between an employee’s essential functions of a job and a request for reasonable accommodation,” writes‘s Dan Wisniewski in his post.

He cites this HR takeaway from Christopher Ward, writing on the Labor & Employment Law Perspectives blog:

The Fifth Circuit’s decision … follows a clear trend suggesting that employers must take a broad view of their obligations with respect to disabled employees. Following the Court’s conclusion, an employer’s accommodation analysis is not limited to an evaluation of whether a potential accommodation is reasonable as measured against an employee’s job functions; instead, the focus should be simply [on] whether the potential accommodation is reasonable … . Prudent employers should thus focus their accommodation analyses more on the reasonableness of potential accommodations themselves and put less emphasis on the accommodation’s impact on the employee’s ability to perform his or her job functions.

Just more to focus — or refocus — on as you let out the breath you’ve been holding, wondering if there’d be a government looming over you at all.

Health-Risk Assessments Under Greater Scrutiny

Health-risk assessments seem to be provoking more and more ire lately: first, professors and other employees at Penn State University revolted after the university announced that employees and their dependents who wanted to continue receiving healthcare benefits from the organization would either complete an HRA or else pay a $100 monthly surcharge. PSU backed down and will no longer require employees to complete the HRA. In the wake of that debacle, U.S. Rep. Louise M. Slaughter, D.-N.Y., has asked the Equal Employment Opportunity Commission to investigate wellness programs that require HRAs and to create guidelines designed to prevent employers from using the information to discriminate against workers.

“What happened at Penn State was appalling to me,” Slaughter told the New York Times yesterday.

Slaughter’s no stranger to the issue of medical privacy: She’s the author of the Genetic Information Nondiscrimination Act.

Here’s what Slaughter wrote in her letter to the EEOC (referencing the PSU program):

While the employer wellness program has recently suspended this fee, their plan still raises concerns about the type of information that can be collected through wellness programs and the definition of ‘voluntary’ participation. It is my strong hope that EEOC promptly drafts subregulatory guidance stopping this type of abuse and ensuring strong nondiscrimination protections for employees in wellness programs.”

Matthew T. Brodie, a law professor at St. Louis University, told the Times that HRAs could potentially have a discriminatory financial impact on women employees by, for example, asking them about whether they plan to get pregnant. Female employees who decline to participate because of privacy concerns over that particular question may be disproportionately affected, he said.

Although the EEOC had indicated earlier this year that it planned to issue guidelines on HSAs to ensure they don’t conflict with federal antidiscrimination laws, no such guidance has been issued yet.

A Dream Yet to be Realized

Martin_Luther_King_-_March_on_WashingtonToday is the 50th anniversary of Dr. Martin Luther King’s famous “I Have a Dream” speech in Washington. It’s being honored with celebrations and speeches, including a speech this afternoon by President Obama, the nation’s first black president. But one quick glance at the headlines serves as a reminder that discrimination is far from vanquished, even in the workplaces of some of America’s most well-known and prestigious companies. To wit, Merrill Lynch has just agreed to pay the largest settlement ever to be paid in a racial discrimination suit to a group of 700 black brokers who worked for Merrill.

The $160 million settlement caps an eight-year legal battle that included two appeals to the U.S. Supreme Court. “This is a somewhat heroic story because these plaintiffs just kept fighting and fighting,” John C. Coffee Jr., a law professor at Columbia, told the New York Times.

The brokers contended that they received less management support than their non-black coworkers and were often ostracized by their colleagues. When the suit was filed in 2005, only about one of every 75 brokers at Merrill was black. Ironically enough, Merrill’s first black CEO, E. Stanley O’Neal, admitted in a deposition that black brokers at the company might have a harder time succeeding than whites because most of Merrill’s prospective clients were white and might not trust their money to a non-white broker.

The plaintiffs’ chances looked especially dicey after the Supreme Court ruled for the defendants in last year’s Wal-Mart ruling. However, Linda D. Friedman, the plaintiffs’ lawyer, was able to convince an appellate panel for the U.S. Seventh Circuit last year to reverse a lower-court ruling that denied class certification to the plaintiffs. Friedman argued that Merrill’s practice of encouraging brokers to form teams and letting departing brokers hand off customers to other team members had a disparate impact on black brokers.

A trial was set for next year after Merrill’s appeal of the decision was denied a hearing by the Supreme Court. However, the company decided to settle instead.