Category: ADA

Manager’s Guide to Discrimination in the Workplace

Published by Brett Holubeck on April 27, 2020

Image of umbrellas at the beach to represent diversity in the workplace and demonstrate that diversity is beneficial to an — Photo by XiaoXiao Sun on Unsplash

Discrimination in the workplace is not something that ended in the 1960’s with the passing of the civil rights act and desegregation of public schools. It continues today.

A recent Glassdoor survey found that 61 percent of U.S. employees “have witnessed or experienced discrimination based on age, race, gender or LGBTQ identity in the workplace.”

In particular the survey found that:

Forty-two percent of working adults in the US have either been a victim of racism or have witnessed racism at work.
Around 45 percent of workers in the US have either experienced or witnessed ageism at work, which makes it the most common form of discrimination in the workplace

Most people will eventually witness some form of discrimination while they are at work. Sometimes people will shrug off the discrimination or think that it is no big deal, but should they have to? Discrimination in the workplace is something that no one should have to tolerate and one that no business should want to occur.

Basically, every company needs to be aware of the issues surrounding discrimination in the workplace so they can act. You do not want workers (or the business itself) to discriminate against people. The average cost of an employment lawsuit can cost tens of thousands of dollars. One survey by Hiscox found that the average cost of defense and settlement was $160,000. Companies need to deal with employees, managers, and even clients that discriminate against workers. Businesses that fail to do so will subject themselves to lawsuits, have less productive employees, poor morale, and a higher turnover.

What is Discrimination?

Discrimination comes in many forms. Title VII protects employees from discrimination based on a person’s sex, race, color, national origin and religion. The ADEA protects employees from discrimination based on age (at least if the person is over 40) The Americans with Disabilities Act Amendments Act (ADAAA) protects individuals with disabilities from discrimination. You can read more about accommodating individuals with disabilities here. The Equal Pay Act prohibits paying employees doing the same work differently unless certain conditions are met.

Stereotypes, jokes about someone’s racial characteristics, concerns that someone cannot do something or would not want a promotion because they are pregnant, and the idea that disabled people are somehow less able to complete a task have no place in the workplace.

For example, most people think that young people are best apt to start a business or run a company based on the companies that we frequently see in the news that were started by young founders (Facebook, Apple, and a number of other tech companies). These are not typical companies. One study found that “a 50-year-old founder is 1.8 times more likely to achieve upper-tail growth than a 30-year-old founder.” Many older founders benefit from their experience in founding a company, experience that younger people have not been able to achieve yet. Everyone’s unique experience brings some benefit to the workplace.

Creating a Culture that Does not Allow Discrimination

The most important thing that companies and managers can do to correct discrimination is to take an active role in preventing it in the workplace.

First, companies need to educate their managers, supervisors, and other leaders about discrimination issues and gather information about it. Supervisors need to understand the laws on discrimination and the areas where discrimination is most likely to occur so that they can take an active role in preventing it. Moreover, companies should gather data about terminations, promotions, and pay to ensure that they are not inadvertently discriminating against any members of any protected category.

Managers need to understand that discrimination in the workplace is not something that will ever be tolerated and they need to act quickly when they witness it, or someone reports it to them. This is the way that you fight discrimination or any bad behavior in the workplace. You have to act! You have to call things out! You cannot let things slide! Managers need to be acutely aware that a joke or a comment is a lot more than that to the person on the receiving end.

Culture is not something that you learn at a one-hour seminar where the speaker uses a ton of buzzwords and everyone leaves excited. It takes an incredible amount of hard work and leadership at the top to create an organization with the right culture. It is something that is built day by day and person by person in the organization. A bad leader can create a culture of discrimination very easily.

In the context of preventing discrimination, there are a few different types of bad leaders that can destroy the culture pretty quickly and cause discrimination issues. Any leader that actively participates in making inappropriate jokes in the office will cause problems. A boss that ignores complaints and let’s things go will create a welcome environment for discrimination.

To be effective, a manager or supervisor needs to set the tone in the workplace. In a lot of ways, it is like parenting. If you tolerate behavior that is inappropriate, then people will think it is permissible and will continue to do it. Managers need to be willing to step in and stop any instances of discrimination in the workplace.

To do this, managers also need to set the tone about appropriate behavior and make employees aware that they can report issues to the managers. Managers can do this by having short meetings at the beginning or end of a shift reviewing procedures and practices at the company. For example, managers refresh employees’ minds about the appropriate ways to report a complaint, to request a disability accommodation, and perform other actions that will reduce the possibility of discrimination.

Acting to Reduce Hiring Biases

The only way to reduce bias in hiring and terminations is to examine your data.

In general, you need to know what the makeup of your workforce is compared to the workforce available in your area if possible and your applicant pool. If you are not hiring enough of a certain group or never hire any qualified applicants of a certain group, then it can start to look like you are either purposefully not hiring individuals with a certain protected characteristic or there is a disparate impact on certain individuals in the hiring process.

If you do have a disparate impact in hiring, then you need to consider where you are hiring individuals. For example, if you are a tech company and only hire on college campuses, then there is a good chance that you are discriminating against older individuals through your hiring methods. Older people tend not to be college students.

Another common issue that some worksites have is paying women different than men in the same job and that they are doing similar work. The Equal Pay Act states that you cannot pay men and women differently for doing the same job. As noted in the Act, you can have different pay for people in the same job doing the same work when the salary is determined by:

(i) a seniority system;
- (ii) a merit system;
- (iii) a system which measures earnings by quantity or quality of production; or
- (iv) a differential based on any other factor other than sex

One final point, a person’s ability to negotiate a better salary is not a factor other than sex. If you pay people differently because they negotiated differently, then you may be subject to a discrimination claim.

You can read more about correcting disparities among protected groups in my article on preparing an affirmative action plan. It only applies to federal contractors, but it has considerations for businesses to help address the issue.

How to Reduce Bias in Termination and Discipline

To eliminate discrimination in the discipline and termination process you can review my article about the questions that you should ask when considering whether to discipline someone, what level of discipline to apply, and whether you should terminate someone.

For purposes of determining whether the action was discriminatory the most important questions are:

Was progressive discipline applied?
Is there any written documentation?
Does this violation warrant termination or the level of discipline applied?
Have all other employees who violated the rule or policy been similarly disciplined or terminated?
Are there extenuating circumstances that would mitigate the level of discipline or termination

Essentially, the questions are focused on whether you have applied your policies consistently and how you have treated individuals in the past. All companies should have a progressive discipline policy where they are consistent in treating violations of company policy the same. Obviously, the most important question for purposes of determining whether there has been discrimination is whether other employees were treated the same in the past. You need to treat everyone the same when disciplining and terminating employees.

It is that simple to say, but it is more difficult in practice. You need to review circumstances and past practices carefully to ensure that you are treating people fairly. Sometimes, there will be extenuating circumstances and you may treat people differently. You need to document why you treated them differently or made an exception to your rule when you discipline employees. A haphazard approach is likely to lead to liability and lawsuits.

How to Respond to an Allegation

As I have said before, all companies need to have a complaint procedure and train your supervisor on those procedures. I also wrote about conducting a workplace investigation before and much of that information is relevant to an allegation of discrimination. The most important part of that article in this context is to keep good records on past behavior; respond in a timely manner to a complaint; gather the information quickly; and take a systematic approach to wrapping up the investigation by examining the evidence, your past practices, and assessing the witnesses’ credibility carefully.

I do have a couple of additional items to add to those articles that are specific to these kind of discrimination claims.

You need to understand that these are sensitive issues for the people that are discussing them. A claim that someone was discriminated against on the basis of their sex or was on the receiving end of jokes about their sex should have investigators or people that they can report the claim to that are both women and men. It can be very uncomfortable to discuss these issues. A woman may not feel as comfortable about reporting discrimination to a man and vice versa. There needs to be other channels for them to report to that take this kind of factor into consideration.

As I said above, a claim that there has been disparate treatment for individuals with a certain protected characteristic may require the company to run a statistical analysis to determine whether the actions of the company in hiring individuals discriminated against a certain group. The best way to fight these lawsuits is to examine your data regularly and adjust your hiring practices if it causes a disparate impact on a protected group.

Conclusion

You can reduce discrimination in the workplace. It takes an effort of all team members, supervisors, and upper management to do so. Managers are in a unique place to reduce discrimination because they witness employee behavior. A good manager knows how to respond to employee problems and quickly stop any inappropriate behavior which helps build a positive and respectful culture over the long term.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Veterans in the Workplace

Published by Brett Holubeck on November 11, 2019

It’s Veterans Day. A great day to honor all those that have served our country in the military. For employment lawyers, businesses, and Human Resource professionals, it is a great time to review some of the special requirements of employing veterans.

The Benefit of Employing Veterans

Companies love veterans. The Center for Talent Innovation found that efforts to hire veterans can “consume as much as 20 or 30 percent of recruiting budgets at some large corporations.” There are a number of reasons for the efforts that these companies put forth to hire veterans.

First, military veterans often gain valuable skills while they perform their service. Sometimes these are hard skills like working on airplanes, coding various programs, and engineering. Oftentimes, it is the soft skills that are gained through military service. Typical Army training includes a lot of activities that help improve discipline, communication and working with a team, and a ton of confidence through overcoming obstacles. All of these are transferable to the workplace.

Of course, some of this recruitment may be due to requirements for federal contractors and subcontractors. The Office of Federal Contract Compliance Programs requires these companies to make special efforts to recruit veterans as part of the requirements to complete affirmative action plans.

One other advantage is that employers can receive a tax credit for hiring veterans (it is going to potentially go away if it is not renewed by December 2019). Employers can get $1,500-$9,600 in tax credits for the first year of their employment.

Possible Disability Issues

Many companies that employ veterans have concerns about PTSD and other disabilities that affect many veterans. About twenty-nine percent of recent veterans report having a service-connected disability. This compares to the nearly one in five people in the US (approximately 56.7 million people) that have a disability. A quick reminder, most disabilities are relatively easy to accommodate. Two-thirds of disabilities require less than $500 to accommodate and one quarter cost nothing at all. Having a disabled person can even be an advantage in the workplace as they may bring a different and often valuable perspective that would otherwise be missed. And after all, what would the world be without Beethoven’s Ninth Symphony (composed when he was almost completely deaf), the music of Stevie Wonder and Ray Charles who were both blind, the inspirational story of Helen Keller (who as a deaf-blind woman lived a fascinating life and graduated from college nearly 90 years before the Americans with Disabilities Act was passed), and the challenges Franklin Delano Roosevelt faced from polio. The possibility of a disability should not deter companies from hiring veterans unless they cannot perform the job duties even with an accommodation.

PTSD and Veterans

One of the biggest challenges many companies face in employing veterans is Post-traumatic Stress Disorder (PTSD). PTSD is not limited to individuals in the military but can affect anyone. It affects approximately 3.5 percent of U.S. adults, and an estimated 1 in 11 people will be diagnosed PTSD in their lifetime. Studies have shown that around 11% to 20% of combat veterans have PTSD.

A person develops PTSD when they are directly exposed to death, threatened death, serious injury, or sexual violence. A person with PTSD has intense and disturbing thoughts that recur long after the traumatic incident that caused them ends and seeks to avoid any triggers that remind them of the traumatic event. These experiences can range from flashbacks; nightmares; intense sadness, fear or anger; and a sense of detachment from the world and other people. People with PTSD often seek treatment through therapy and medication.

How can employers accommodate PTSD at work? JAN has a great list of questions to consider to accommodate these individuals:

What limitations is the employee experiencing?
How do these limitations affect the employee and the employee’s job performance?
What specific job tasks are problematic as a result of these limitations?
What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
Has the employee been consulted regarding possible accommodations?
Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
Do supervisory personnel and employees need training?

Common accommodations for these individuals can include a flexible schedule and a modified break schedule. Employees with PTSD may be eligible for leave under the FMLA and the ADA. They may be eligible for intermittent leave under the FMLA based on the medical diagnosis of their doctors. As is common with accommodations, accommodating an individual with PTSD is likely a cost neutral accommodation (the accommodations involve changes to the workplace that do not require the employer to spend money, such as by purchasing special equipment, to accommodate the employee and allow them to work).

Service Dogs

Service animals cause many companies to panic. Many people have read about pets being claimed to be service animals when they lack any sort of training and are concerned about bringing animals into the workplace. However, services animals can be integrated into most workplaces relatively easily.

As with any other request for an accommodation (and assuming that the ADA applies), an employer needs to go through the interactive process with the employee to accommodate their request. I’ve written about that here.

JAN has a great explanation of how to assess whether to allow these animals in the workplace as an accommodation.

What this means for employers: When an employee with a disability requests to use a service animal at work, you have the right to request documentation or demonstration of the need for the service animal (when the need is not obvious) and that the service animal is appropriately trained and will not disrupt the workplace. However, while documentation demonstrating that an employee has a covered disability may come from a health care provider, you may need to consider documentation from other sources that explains the need for the service animal and that shows the animal is appropriately trained. Another option is to have a trial period; allow the employee to bring in the service animal on a trial basis to see if allowing the animal is effective and does not pose an undue hardship. There is no set time frame for a trial period, but one to six weeks might be enough time to assess the situation.

What this means for employees: In addition to documenting they have a disability, employees who use service animals need to be able to show that the service animal is needed for disability-related reasons and that the service animal is trained to be in a work environment without disrupting the workplace or otherwise behaving inappropriately. If your doctor recommended the service animal, then your doctor should be able to verify that you need the service animal for disability-related reasons. Regarding your service animal’s training, in some cases documentation from the service animal trainer would be helpful. In other cases, you may want to offer to demonstrate how the service animal behaves in the workplace.

Service dogs can serve a variety of functions including helping those with autism, individuals that are hard of hearing, limited mobility, diabetics, individuals with allergies, and those with a disease or condition that causes seizures, PTSD, and other issues. Many people fail to recognize that an individual with a service animal may have an “invisible” health issue that the dog is meant to accommodate or help with.

If there is an employee that is allergic to dogs, then the company should work with that individual to address the issue. Possible solutions can include ensuring that the service animal and the employee with allergies work in different parts of the building, that they have a different pathway to areas of the building than the service animal, and the use of portable air filters.

Of course, service animals may not be able to work in all environments and it may not be possible to accommodate an individual with a service animal. Anyone that must work in a sterile environment (think surgery) may not be able to have a service animal while they are in that area, places where food is prepared or food processing plants in the areas where the food is made (they must still be permitted in cafeterias and dining areas), and anywhere else where they may not be able to physically go (places that can only be accessed by ladders, etc.).

Where to Recruit Veterans

As I mentioned, many companies actively seek veterans. So where are the best places to recruit veterans?

There are a number of sites that aim to help companies recruit veterans.
- https://recruitmilitary.com/
- https://www.hireheroesusa.org/companies/
- https://hireveterans.com/
- https://www.mynextmove.org/vets/
Many American Job Centers have a veterans and military transition center representative for veterans and companies that wish to hire them.
The American Legion and Recruit Military offer career fairs for veterans
Finally, and most importantly, establishing your organization as an organization that values veterans, reserve duty members, and other military personnel is probably the best way to hire veterans. Word of mouth is still one of the best ways to hire. One survey by SurePayroll Inc. found that small business owners preferred word of mouth referrals with 70% of small businesses using word of mouth to hire individuals compared to 37% that use job websites (companies can use more than one method to recruit).

Conclusion

Veterans have a lot to offer companies through the valuable training that they gained through their military service. There are a number of resources to help veterans find jobs, and there are a lot of resources to help employers interested in benefitting from the soft and hard skills many military members possess as a result of their service.

Lastly – Happy Veteran’s Day! Thank you so much to those of you who have served our country. We are thankful to have individuals like you who are willing and able to serve!

The information provided is my own and does not reflect the opinion of my firm or anyone else.

One in Five People Have a Disability: How Do Workplaces Accommodate Them?

Published by Brett Holubeck on September 28, 2018

Nearly one in five people in the US (approximately 56.7 million people) have a disability. Only 18.7% of people with a disability had a job compared to 65.7% of those without a disability. Disability issues are increasingly critical for companies to understand especially as the workforce continues to age. One out of every 4 US workers will be over 55 by 2024, which is important because 48% of persons over 65 have a disability. People are also working longer and nearly 40% of people aged 65-69 are still working. As the working population ages, more people in the workforce will have a disability.

What is A Disability Under the ADA

The Americans with Disabilities Act (ADA) protects employees from being discriminated against because they have a disability or their employer regards them as disabled. It applies to any company with more than 15 employees. Under the law, a person has a disability when they meet one of three conditions (not every medical condition is protected). Here is a helpful breakdown from the EEOC (a government agency that enforces workplace discrimination laws):

A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
A person may be disabled if he [or she] is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Is Obesity a Disability Under the ADA?

Obesity is not only a major medical problem in the US, with nearly 40% of adults meeting the criteria for obesity and 7.7% being severely obese, it is also an evolving and changing area of disability law.

The 7^th Circuit (covering Illinois, Indiana, and Wisconsin) will decide whether severe obesity (formerly known as morbid obesity) is a disability under the ADA. Generally, the standard has been that severe obesity is not a physical impairment (meaning it is not protected under the ADA) unless it is caused by an underlying disease or medical disorder. The 2^nd, 6^th, and 8^th Circuits have all found that severe obesity is not a disability without some associated medical issue or disorder. If the 7^th Circuit finds that obesity is a condition that is protected under the ADA, then numerous workplaces would need to prepare to accommodate these employees.

No matter what happens in the 7^th Circuit, if you have an employee like Al Bundy, who actively insults customers and just about anyone around him, then you should probably consider terminating him or her.

The Interactive Process or Providing a Reasonable Accommodation to Disabled Workers

If an employee informs their employer that they have a disability (note the employee does not need to say the magic words of disability or ADA) or the need for an accommodation is obvious, then the employer needs to begin the interactive process to determine what accommodation it should provide. The company should also document that it received a request to accommodate the disability and provide a copy to the employee to show that the company is committed to accommodating the employee.

The law requires employers to provide a reasonable accommodation for an employee unless providing an accommodation would cause the employer to suffer an undue hardship (it is too difficult or expensive, which is a high standard to meet) or the person cannot perform the essential functions of the job. For example, the nurse in last week’s article could not perform one of the essential functions of her job: lifting patients.

During the process, the employer asks the employee questions to determine what accommodation the employee wants and what is the problem that needs to be corrected (what tasks the disability is hindering or preventing the employee from doing). Employers should stay away from questions about the exact medical condition that the employee has and medical details (usually).

An employer does not need to give the employee the exact accommodation that the employee wants but may choose which accommodation to provide as long as it engages in the interactive process with the employee and considers the employee’s needs. To accommodate an employee, an employer may need to purchase a device to help the employee complete their job, modify the employee’s work schedule, or offer them a vacant position. Courts also generally require companies to continue to assess the accommodation and make changes to the accommodation as needed (assuming that this is a condition that will change, or the employee informs the company that his or her condition changed). Some conditions need only a one-time accommodation. The employee or their doctor may also have informed the company that the employee’s condition will not change. Companies do not need to continue seeking information from the employee in these situations.

Employers should document the discussion about the accommodation that they provide and how the employer determined which accommodation to provide. The interactive process is never the same because workplaces, jobs, and disabilities are all unique. However, when done right, the employee and the company can both win. The employee is more productive, less stressed, and a better, more loyal member of the team. The employer shows its employees that it cares for them, it gets a more productive employee, and employee morale improves.

Conclusion

Accommodating an employee with a disability can and should be done. Most of the time, it can even be done with little or no cost to the company. The Job Accommodation Network has conducted surveys showing that 59% of respondents stated that accommodating their employee cost nothing, and 36% had a one-time expense which cost $500 on average. Working with an employee to find the right accommodation also can show the employee that the company cares about the employee, which increases the employee’s morale. Rather than something that HR dreads, accommodating a disability can be a chance for HR to do one of its primary tasks: supporting employees and making them more productive by putting the “human” back in Human Resources.

The information provided is my own and does not reflect the opinion of my firm or anyone else.