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Wednesday
Jul082015

ICYMI: Our Social Media Posts This Week -- July 5 - 11, 2015

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

In the post on Sunday 7/5/15 we talked about the failure to pay a bonus to a disabled employee possibly being illegal discrimination. Here, the employer had a bonus scheme that disqualified employees who had received a warning for sickness absence (as opposed to those who received warnings related to conduct, which was discretionary). This operated so as to discriminate against disabled employees.  

TAKEAWAY: Whether or not it is facially intended to be discriminatory, if a policy does indeed discriminate against a protected class, you can be taken to task for same.

The post on Monday 7/6/15 contained 8 guidelines for evaluating accommodation requests. They include giving each request individual consideration, never saying never, and never saying always. The remaining 5 guidelines are in the post.

TAKEAWAY: Employers have an obligation to attempt to accommodate an employee’s disability (assuming the person meets the other requirements under the law); fulfilling that obligation can make the difference between a happy employee (and successful employer) and a lawsuit.

In the post on Tuesday 7/7/15, we reminded you to think carefully if you have an English-only rule. Why? Because the EEOC will claim you are discriminating on the basis of national origin. The only time to have such a rule is if it can be tied to a specific business necessity and then it must be limited in scope. Some of the allowed times are listed in the post.

TAKEAWAY: Your handbook or policy manual is indeed yours, and it is your business, but you must still ensure that there is no discrimination – intended or otherwise - on the basis of any protected characteristic.

The post on Wednesday 7/8/15 questioned if small businesses take risks by not following employment laws? Of course the answer is yes. The post talks about some of those risks.

TAKEAWAY: No matter the size of your business, be aware of what laws apply and your obligations under those laws. Ignorance is no excuse.

The post on Thursday 7/9/15 reminded us that although same-sex marriage is legal, Title VII still does not ban discrimination on the basis of sexual orientation.

TAKEAWAY: While something may be legal, that does not mean that it is in the best interests of your company – think carefully before you take even legal adverse action against someone based on their sexual orientation.

The post on Friday 7/10/15 contained 5 things (not) to do when facing workplace harassment or discrimination. The list is written with the employee in mind but can (and should) also be used by employers as a sort of mirror-image checklist. So what are the 5 things? Don’t forget to keep a record (document, document, document). Don’t fail or wait to report the issue. Don’t hamstring the investigation. The remaining 2 items are in the post.

TAKEAWAY: Employees are getting smarter and more litigious; make sure you as the employer know your rights and obligations and act uniformly and legally.

Finally, in the post yesterday 7/11/15 we noted that yes, even the EEOC has a duty to try to accommodate. What happened? The EEOC employee’s lung disease made her sensitive to air quality. She requested a private office with air purifier or the ability to telecommute. Both requests were denied; she was assigned to a cubicle that was too large for the air purifier to work for her. A month later, she spoke to a disability coordinator about her need for accommodation. Two months later she had surgery and returned following the surgery. She was told the EEOC was still looking for an office. By the following month, the employee guessed that the EEOC would not accommodate her. While all this was going on, the employee’s supervisor was allegedly harassing her about caring for her disabled mother. She eventually requested transfer to another office in a specific position; despite that position being open, she was transferred to another position and remained there until going out on disability retirement. Not surprisingly, she then filed suit for failure to accommodate, retaliation and hostile work environment. The EEOC moved to dismiss or for summary judgment. The judge ruled in favor of the EEOC as to a private office and the transfer request, but in favor of the employee on telecommuting as a possible accommodation. Read more of the details in the post.

TAKEAWAY: Even the agency charged with oversight and enforcement of discrimination and accommodation statutes has a duty to comply, so don’t you think you better also?

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