The largest single class disability discrimination lawsuit, brought by the Equal Employment Opportunity Commission (EEOC) against Verizon Communications, was recently settled to the tune of 20 million dollars. The suit contested Verizon’s “no fault “ attendance policies because of their inflexibility which did not allow for reasonable accommodation of individuals with disabilities, in violation of the Americans with Disabilities Act (ADA.) The EEOC maintained that, as a result of the attendance policies at the 24 Verizon subsidiaries named in the suit, hundreds of disabled individuals who had needed accommodation were disciplined or terminated. In addition to the large payout, Verizon will be required to overhaul a number of its policies and provide mandatory training to those who administer them, will have additional reporting requirements to the EEOC and must appoint an internal consent decree monitor. Further details are outlined on the EEOC web site.
The Verizon case represents an important lesson for all employers: you must provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability, unless doing so would cause an undue hardship, i.e. significant difficulty or expense. Always keep the ADA in mind when crafting leave policies and carefully consider potential ADA situations when considering termination or other adverse employment actions.
Not unexpectedly, the Supreme Court ruled Monday that the discrimination bias case brought against Wal-mart did not qualify for proceeding further as a class action suit. The case grew from a 2001 suit brought by an individual, Betty Dukes, and involves accusations that the retail giant pays women less and gives them fewer promotions than their male counterparts.
The court did not rule on whether women have been discriminated against, only that they could not sue Wal-mart as a class. The justices split 5 -4 on ideological lines on part of the decision but unanimously found that the plaintiffs’ lawyers had improperly sued under a certain section of class action rules that was not primarily concerned with monetary damages.
This Supreme Court decision reverses a prior ruling by the 9th District Court of Appeals of San Francisco. If allowed to proceed as a class action suit on behalf of 1.6 million current and former female employees, Wal-mart’s already substantial costs would likely have soared into the billions of dollars and it is likely that similar suits would have cropped up against other organizations. While this ruling is a clear victory of sorts for the big box giant and perhaps other large businesses, litigation by at least two of the several plaintiffs may continue individually meaning Wal-mart is not yet off the hook, though it is a decidedly smaller hook than it would’ve been. Wal-mart claims that its policies prohibit discrimination and that it has taken steps since the suit was filed to address problems.
As the saying goes, statistics don’t lie. Well, maybe they can be misleading at times. But the EEOC’s recent publishing of its chart of charges filed by individuals from 1997 through 2010 contains important information. The steepest rise in filings against employers has been in the area of retaliation. That’s when an organization is accused of taking an adverse employment action, such as termination or discipline, as a result of an employee’s engaging in a protected activity such as bringing a claim of harassment, taking protected leave or participating in protected union activity.
This doesn’t mean that you can’t legitimately fire someone who deserves it. But the message is this: before taking any sort of adverse action against an employee, make sure you have documentation that the action is related to job performance or some other legitimate reason. And if the employee has recently engaged in a protected activity, be sure to conduct a careful analysis of the circumstances and to have proper documentation to prove that your action is not retaliatory. Your best protection is to have a policy against retaliation, train your managers in it, communicate with an employee who brings forth a claim, and to document, document, document.
Subscribers to HRSentry have excellent resources at their fingertips 24/7! These include resources on retaliation, its prevention and proper termination to reduce your organization’s risk.
We’ve been thinking a lot about job descriptions here at HRSentry®, having recently launching a new product called Job Descriptions Made Simple which helps users quickly assemble job descriptions that are ADA-compliant. Job descriptions aren’t legally required and, as writing them sometimes feels daunting, you may be tempted to avoid having them or to not update the ones you do have. But I would argue that job descriptions are helpful for myriad reasons and provide important legal protection for your organization.
Why have job descriptions? They serve as a communication tool between the employer and employees so there’s mutual understanding about the expectations and responsibilities of the position. They provide a useful reference for performance management and as grounds for termination if an employee cannot or will not meet the written duties and expectations of the job. Job descriptions justify Exempt or Nonexempt categorizations as required by the FLSA and they can protect an organization from employment claims brought under the ADA or Title VII. The key is to do them well.
Be thoughtful about making sure all the “essential duties” of the position are documented. The EEOC describes these as the tasks which are fundamental to the position and, if removed, would fundamentally change the job. You can also think of essential duties as the reason the job exists. If you are creating a description of a position that isn’t new but already exists, get input from the person doing the job as that person knows the job well and will appreciate being consulted.
When culling the essential duties in a job description, focus on what needs doing, not on how it’s done. Here’s an example: don’t say, “lift up to 50 lbs. equipment” if what is actually required is that the equipment be moved. The function to be accomplished is transporting the equipment so that’s what you should say to make sure you don’t exclude individuals who might need a reasonable accommodation such as using a dolly.
You should also pay attention to bona-fide occupational qualifications (BFOQ) to make sure the job description does not violate Title VII or other laws related to protected to class protection, such as those based on race, gender, age, national origin or pregnancy status. So, for instance, don’t specify that the job occupant needs to male or female unless you can prove that it’s really required to this this job. For instance, a counselor of a support group for teenage girls discussing sexual issues needs to be a woman if the girls are to feel comfortable opening up. So being female in this case is a BFOQ.
As mentioned job descriptions are not legally required but, if you have them, they are treated as legal documents and they must be kept for at least two years. So be thoughtful and careful about creating them and consider using Job Descriptions Made Simple to ensure they work well for you!
Free Webinar: Join us on May 12th at 2pm for the “EEOC – Discrimination and Harassment Laws” webinar, presented by Brenda JM Sabin, CBP HRSentry’s Director of Operations and Site Administration.The EEOC governs many Federal laws and regulations as they pertain to discrimination and harassment. Discrimination and harassment can occur from the time an individual applies for a position with your organization, through the orientation process and the employment time, right up to the termination of that employee. Do your managers and supervisors understand how important these laws are? Do you? Learn the complexities of the discrimination and harassment laws and learn to protect your organization. Click here for more information on how to sign up for the “EEOC – Discrimination and Harassment Laws Webinar”.
