November 5, 2013

 

 

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

November 19, “Human Resources Issues for Business Owners” hosted by Simjee Periodontics and Cool Smiles Orthodontics.

 

 

Full Day Workshop on January 16: Start the new year on the right “employment law” foot! Click on HR4U 101 Workshop for more details.

 

South Loop Club to Pay $100,000 to Settle EEOC Sex Harassment and Retaliation Case

South Loop Club, a Chicago bar and grill will pay $100,000 under a consent decree entered today to settle a sexual harassment and retaliation case brought by the EEOC

 

The EEOC had alleged that South Loop Club fostered a culture where sexual harassment and retaliation against female employees went unchecked.  South Loop Club opted to settle the case shortly after it was filed and before answering the complaint. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. 

 

The U.S. District Court Judge entered the decree settling the suit, which provides $100,000  in monetary relief to the victims, and requires South Loop Club to report to  the EEOC for the next two years on all employee complaints of sex- or  gender-based harassment and retaliation.   South Loop Club must also train all its employees on the prevention and eradication of harassment and retaliation and adopt new policies regarding those forms of misconduct.  The decree also specifically provides that South Loop Club cannot require recipients of monetary relief to keep the facts underlying the case confidential, waive their rights to file charges with a government agency, or refrain from reapplying for work with the company.

 

 "This case is a reminder that federal law protects women working in bars from sexual harassment as much as women working in high-end business environments. It doesn't matter whether your collar is blue, pink or white — sexual harassment is illegal, and the EEOC will combat it.

 

New California Disability Regulations Allow Support Animals in Workplace

California employers should be prepared to welcome support dogs and other animals into the workplace as a reasonable accommodation for disabled workers requiring support under new disability regulations issued by the California Fair Employment and Housing Commission. The new regulations significantly expand protections for disabled workers and outline new requirements regarding reasonable accommodations, the interactive process, and proof of discrimination. The regulations took effect on December 30, 2012. Key provisions are set forth below.

 

The California Fair Employment and Housing Act (“FEHA”) will be broadly construed to protect individuals from disability discrimination and in favor of expansive coverage. The focus in disability discrimination cases under the FEHA will be on whether discrimination occurred, not on whether the individual has a covered disability.

 

The new regulations require employers to allow “assistive animals” in the workplace as a reasonable accommodation. Assistive animals include not only service dogs for the visually and hearing impaired, but also support dogs or other animals that provide “emotional or other support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.”

 

Employers may set minimum standards for assistive animals, such as requiring the animal:

• To be free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces; 
• To not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace; and 
• To be trained to provide assistance for the employee’s disability.

 

If an employee asks to bring an assistive animal into the workplace as a reasonable accommodation, the employer may require the employee to provide a medical certification from the employee’s “health care provider” (the definition of which is expansive, discussed below) stating the employee has a disability and explaining why the employee requires the assistive animal as an accommodation. The employer also may require the employee confirm the animal meets the employer’s minimum standards. The employer may challenge, based on objective evidence of offensive or disruptive behavior, that the animal meets its standards within the first two weeks the assistive animal is in the workplace. An employer may require annual recertification of the continued need for the support animal.

 

The definitions of physical and mental disability now provide specific examples. The regulations also incorporate the ADA’s and ADAAA’s definitions of disability, and, to the extent that federal protections are broader, those protections will prevail over any conflicting provisions in the FEHA. Disabilities do not include, however, conditions that are mild and do no limit a major life activity.

 

Like the definition of disability, the definition of major life activities also must be construed broadly and includes physical, mental and social activities, particularly those that affect employability or present a barrier to employment or advancement.

 

Accurate, current job descriptions may constitute evidence of essential job functions. Likewise, reference to the importance of the performance of a job function in prior performance reviews also may demonstrate a job function is essential.

 

The regulations have expanded the types of professionals and therapists who are considered “health care providers” who may furnish a medical certification. Health care providers now include marriage and family therapists, acupuncturists, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers, and physician assistants.

 

A reasonable accommodation also includes any modification or adjustment that is “effective in enabling an employee with a disability to enjoy equivalent benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.”

 

Employers have an “affirmative duty” to make reasonable accommodations for the known disability of any employee or applicant, unless the employer can demonstrate, after engaging in the interactive process, that doing so would pose an undue hardship. Employers must consider all possible accommodations, except ones that create an undue hardship. They must consider the preference of the applicant or employee to be accommodated, but have the right to select and implement an effective, alternate accommodation. 

 

Employers need not eliminate essential job functions as a reasonable accommodation or lower a quantity or quality standard that is an essential job function. Leaves of absence may be a reasonable accommodation, as long as the leave likely will permit the employee to return to work. Employers need not provide an indefinite leave of absence or create a new position as a reasonable accommodation.

 

The new regulations include a detailed explanation of the interactive process and emphasize that employers must start the process whenever an employee or applicant with a known disability requests a reasonable accommodation, or whenever they become “aware” of the need for an accommodation through a third party or by observation. In addition, employers must start the interactive process when an employee exhausts leave under other laws and the employee’s health care provider indicates that further accommodation is necessary.

 

Employers may require the applicant or employee to provide medical documentation confirming the existence of a disability and the need for an accommodation. However, employers are prohibited from inquiring about the underlying medical cause of the disability. Employees and applicants must cooperate in good faith during the interactive process and provide reasonable medical documentation.

 

The employee or applicant bears the burden of proving he is a qualified individual capable of performing the essential functions of the job with or without reasonable accommodation. If the employee establishes he is qualified, he then must show his disability was a factor that influenced an adverse employment action, but not the sole or even dominant cause for the adverse action.

 

If employers engage in the interactive process, they may assert as a defense that no reasonable accommodation exists that would allow the employee to perform the essential functions of the position without imposing an “imminent and substantial degree of risk” to the employees or others. 

 

California employers should review the new regulations carefully and revise their policies and practices as necessary. Employers should ensure job descriptions are current and should consider integrating essential job functions into employee performance review documentation.

 

Factoids

Workplace Ethics

• 34% of employees think their managers are unethical
• 50% have seen misconduct in the office
• 20% or whistleblowers say they have faced retaliation
• 42% say their company’s ethics culture is weak

 

Quotes

“Everyone has a right to be stupid. Some just abuse the privilege."

~Author Unknown~