The draft “Diagnostic and Statistical Manual of Mental Disorders” contains proposals to expand the category of disabilities to include a number of disorders, including binge eating and pathological gambling. Some have taken that to mean that employers will have to accommodate such disorders, or face penalties under the ADA.

The truth: It’s unlikely, for at least two reasons:

• When psychiatry classifies some disorders as disabilities, that doesn’t automatically mean they’ll fall under qualified disorders under the ADA. In fact, some recognized mental disabilities are specifically excluded from ADA protection, such as compulsive theft and pyromania.
• The proposals are in draft form only, and the psychiatry association has three years to field and incorporate public comment into the proposals. So, nothing will happen prior to 2013, and there could be a host of changes by then.

Here’s an easy recipe for a lawsuit: A manager sees a resume and likes the candidate’s qualifications — but after meeting the applicant in person, immediately changes his mind.

That happened in one recent case.

An employee applied online for a job at a debt collection agency. She had eight years of relevant experience, and the hiring manager liked her qualifications enough to invite her in for an interview.

But once the candidate met the manager in person, she was immediately turned down for the job. Why? Apparently because she was blind.

According to the candidate, once the manager realized she was blind, he told her, “This isn’t going to work out,” and sent her on her way.

The woman tried to explain that she’d spent eight years doing similar work for eight years with the help of assistive technology for the blind, but again the manager told her she wouldn’t be considered for the job.

She took her complaints to the EEOC, which helped her sue. She won a $55,000 settlement.

This case highlights the need to train managers on disability discrimination while recruiting. Advances in technology have made it possible to accommodate more qualified employees than ever — and at a lower cost. According to a recent study by the Job Accommodation Network, 56% of accommodations cost nothing at all, while another 37% involve only a small, one-time cost ($600 on average).

As this case shows, failing to explore those options can create big legal problems — but that’s not all. As the EEOC’s lawyer in the case noted, the candidate had been successful performing similar work in the past, and company missed out on her skills and expertise.

Cite: EEOC v. Sentry Credit, Inc.

B & H Foto and Electronics Corp. paid its Hispanic employees less than their non-Hispanic co-workers, according to a lawsuit filed on behalf of 149 Hispanic warehouse workers.

The company was also accused of failing to provide health benefits to Hispanic workers and promote them because of their national origin.

Result: The company was forced to settle and pay out $4.3 million in wages and benefits to the 149 employees.

As part of the settlement, B & H agreed to:

• equalize Hispanic employees’ wages with other workers’ pay
• maintain a written non-discrimination policy
• conduct supervisor training
• post bilingual wage-and-hour and benefits notices, and
• submit to Equal Employment Opportunity Commission (EEOC) audits for the next five years.

When fighting bias claims, nothing can doom a company quite like the employee showing the judge a discriminatory e-mail or text message from a supervisor. But as this recent case shows, there are still steps employers can take to protect themselves from those claims.

An African-American security guard sued his employer for discrimination. His reason: racially charged jokes send to him by his supervisor via text messages.

One of the messages, which was sent to several employees, contained a serious racial slur. On top of that, the employee also claimed white employees got more favorable work assignments than minorities.

Employees who have permanent written evidence of harassment or bias (like a defamatory e-mail or text message) usually do well in court.

But not this time. Here’s why:

After getting the messages, the employee complained to HR. After getting the complaint, the company:

1. gave the supervisor a “final warning”
2. transferred the employee to a location with a different supervisor (which the employee had requested), and
3. looked into his claims about work assignments, but found no evidence he was right.

After that, the employee sued anyway, claiming the company didn’t do enough. But the court disagreed.

Prompt investigation and appropriate discipline can protect companies from managers’ bias and stupid misuse of technology.

Cite: Griffin vs. Harrisburg Property Services, Inc.

When employees are caught breaking the company’s computer use policy, they usually have an explanation of why they’re innocent. Does that mean bosses can’t fire them without absolute proof?

No, it just means you need to conduct consistent and thorough investigations. Here’s what happened in a recent court case:

A manager noticed excessive personal computer use by one of his employees, so he asked IT to examine her hard drive and Web browsing history.

What they found was worse then the manager expected: The hard drive contained pictures of nude men, and her work e-mail contained a message with a pornographic image attached. The employee was fired for violating the company’s computer use policy.

The employee, an African-American, denied responsibility for the images. She said she received the e-mail from a co-worker and didn’t know how the pictures got on the hard drive. She claimed she had complained to HR about the images, but nothing was done about.

As for her termination, she believed she was fired because of her race. She sued the company.

In court, the employee pointed to numerous events to show her co-workers were biased against her. For example, she claimed she was told she “didn’t know her place” and said other employees disapproved of her dating white men.

She argued the company didn’t investigate the computer situation thoroughly enough and had just wanted to get rid of her.

The court didn’t buy the argument. First, the instances she mentioned had nothing to do with the people who decided to fire her and were just stray comments that didn’t seem connected to the termination.

Second, even if she was telling the truth about the pornography on her computer, that didn’t necessarily matter. The company just had to show it honestly and reasonably believed she broke the policy. It did that, and the judge tossed the case.

When it comes to computer policy violations, figuring out who’s to blame can be complicated. Employees in other lawsuits have claimed viruses automatically downloaded porn or that someone logged into their computers without permission.

But the good news for HR is you don’t need to prove to a judge that the employee was guilty — just that you investigated properly and made a non-biased decision based on the information you had.

Cite: Twymon v. Wells Fargo & Co.

Outback Steakhouse was sued by the EEOC after female employees claimed they were kept out of managerial positions because of their gender.

After failing to have the case tossed, Outback settled for $19 million. In addition, the settlement requires the company to create an online application system for employees interested in management positions.

The EEOC said the point of the online system is to spread the word about open positions to all employees and set up a more objective selection process. Smaller companies won’t need an online system, but when managers choose candidates for promotions, they should make sure all qualified employees have an equal opportunity to apply.

Cite: EEOC v. Outback Steakhouse of Florida, Inc.

You can’t promote everyone — managers frequently have to say no to qualified candidates, simply because they aren’t the best. Just make sure when that happens that they’ve the documented the real reason.

An African-American woman sued after being denied a promotion. The employer, a fire department, had a three-step process for promoting employees to captain:

1. Employees meeting minimum requirements took a written test
2. Those who passed took a job simulation test, and
3. A group of managers met to discuss the top three candidates and chose the best.

Twice the woman made it to the last step, but lost out to white males. According to her, it was because of her race and gender. She argued she had more relevant experience than the promoted employees, including several stints as acting captain.

The department claimed the group of managers had concerns about her performance and “interpersonal skills.”

The problem: The managers didn’t keep any record of the discussion, so the department couldn’t prove to the court the real rationale behind its decisions.

On the other hand, the employee presented recent performance evaluations that were consistently positive. The judge ruled in her favor.

Lesson: The employer had a multi-part decision-making process, but missed a critical step.

Without proper documentation, courts will be more inclined to believe the employee’s side of the story. That’s especially true when it comes to hiring and promotion decisions, which can be highly subjective.

Cite: Wesley v. Arlington County

A woman working as a server at a restaurant learned she was pregnant. She mentioned the pregnancy to the owner’s daughter, who also worked there. The daughter recommended she not tell anyone.

However, the daughter told the owner. That’s when the owner called the employee and left a voice mail about his plans to discriminate: “The first time any sign of that pregnancy shows up, you’re through,” he said. According to him, she’d be able to keep her job “through the third month and then it’s time to go.”

Soon after that, the woman was fired.

Not surprisingly, she sued. She played the voice mail during her trial, and the court ruled in her favor.

Cite: EEOC v. J.H. Hein Corp.

Answer True or False to the following (answers below):

1. If you supervise a disabled employee who can’t meet production standards for that position, the law calls for you to lower the standards for that person.

2. The Americans with Disabilities Act applies only to companies that have at least 15 employees.

3. Employees who abuse drugs are generally not protected by the ADA.

4. Employers are required to provide disabled employees with aids such as eyeglasses, hearing aids and the like.

Answers

1. False. The law calls for you to provide practical and reasonable accommodations to help the employee meet the general standards, but you are not required to lower standards.

2. True. The law recognizes that ADA accommodations might present too big a burden on small employers who have less flexibility.

3. True. Bans against and penalties for drug abuse can be fully enforced by supervisors and employers, and are not affected by the ADA. The one exception is if an employee enters a rehabilitation program and asks for help. Still, even if an employee is in rehab, you can discipline the employee for subsequent instances of abuse.

4. False. Employers are required to make accommodations in some instances, such as a chair, but generally aren’t required to supply healthcare “personal use” items.

A nurse was let go after doctors repeatedly complained she had trouble hearing their instructions. The woman wore hearing aides in both ears, but that didn’t help the predicament.

She was placed in another position temporarily and told she could look for another job in the hospital. Instead, she quit and sued the hospital for disability discrimination.

Apparently, the woman told the doctors about an easy way to fix the communication issue: All they had to do was stop listening to loud music in the operating room.

According to the EEOC, who took up the case, such a simple accommodation shouldn’t have a problem. The employer couldn’t get the case thrown out, and ended up settling for $100,000.

Cite: EEOC and Reherman v. St. John Health System