The facts:

An employee who was being treated for cancer suffered from dry mouth and throat as a side effect of the treatment, and had to consume large amounts of water throughout the day to combat the side effect.

As a result, she asked for two disability accommodations:

• Relaxing of a rule that prohibited drinks of any kind at workstations.
• Permission to leave the workstation often, and without asking, because of a frequent need to use the restroom.

She was granted both accommodations, and worked under those conditions for several months without incident except for one time:  A substitute boss who hadn’t been informed of the employee’s condition refused to all the employee to leave the workstation during an especially busy period. The employee wet her pants.

The employee sued for denial of a disability accommodation.

The employee said:
The temporary supervisor’s blunder caused extreme embarrassment, besides being an illegal breach of the agreement to grant her the accommodation.

The employer said:
The employee had worked under the accommodation conditions for several months without a hitch — in that the regular supervisor had never once denied the employee the accommodation. The incident in question was a simple mistake in communication, in that the temp supervisor wasn’t aware of the accommodation, and would have granted it had he been aware. Further, the employer maintained, the employee should have informed the boss of the accommodation or should have just left the workstation to use the restroom.

Who won the case?

Answer: The employee, who received $200,000 in damages from the employer.

Why: The court rejected the employer’s argument on two counts –

• The employee was under no obligation to inform the boss of the accommodation. The legal language for such an event is called continuing the “interactive process” — the back and forth between employee and supervisor to arrive at a reasonable accommodation. The court said the employee had already engaged in the interactive process and was under no obligation to continue it with another supervisor once the accommodation had been granted.
• Even a single incident of failure to accommodate can have more-than-trivial consequences. An employer must be vigilant about maintaining the accommodation at all times. In short, someone should have informed the temp supervisor about the situation.

Cite: A.M v. Albertsons LLC.

The Supreme Court recently ruled on a case involving employees at a fire department in Connecticut. To be considered for a promotion, the employees had to take a written and oral test. Candidates with the best scores were chosen.

A group of African-American firefighters complained that the test was biased, so the department threw out the results and started from scratch.

However, the white employees who would’ve been promoted based on the test scores sued. The Supreme Court agreed, ruling the department threw out the results of a perfectly good test.

Now, an African-American employee has filed his own suit. He’s claiming the test really was biased, and that he was unfairly denied a promotion when the policy on the test was reinstated.

Got that? We’ll keep you posted on how the suit proceeds.

One thing these cases show: Employment tests can be complicated. Companies should track results to look for signs of a disparate impact.

In this recent case, notes scrawled on a napkin ended up getting a company dragged into court:

The company’s VP of Technology worked for the employer for 17 years with no problems — until a new president was brought in.

The VP disagreed with the president on several things, and received an uncharacteristically negative review from the president.

Faced with financial problems, the company brought in a management consultant to meet with the president and other decision-makers. One decision that came from that meeting: The VP of Technology was fired.

He was told it was because he wasn’t the type of leader the company wanted. But he thought it was because of his age (he was 58 at the time, and the company replaced him with a 45-year-old) and sued. He won. Why?

Evidence presented included notes the president wrote on a napkin while meeting with the consultant. The scribblings included a note that the company’s execs should be “young, energetic” “future people.”

After seeing that, the judge agreed age likely influenced the president’s decision.

Cite: Inman v. Klockner Pentaplast Of America, Inc.

The scene:

“You know demoting Marty is going to present a little problem, right?” HR manager Diane Corsey said.

“You mean because of his cerebral palsy?” Darlene asked.

“I’m not saying you can’t or shouldn’t demote him,” Diane noted. “I just want to be sure it’s not because of his disability.”

“This is not about his disability,” Darlene affirmed. “It’s about his performance. It takes him forever to get anything done. He’s had warnings, and there’s been no improvement. In fact, it it wasn’t for his disability, I’d probably recommend firing him.”

“Have you talked to him about any accommodations we might make that would make the job a little easier for him?” Diane asked.

“No, because he hasn’t asked about accommodations,” Darlene said. “We talked about this when we hired him – that the law didn’t obligate us to offer him help if he didn’t ask for it. He’s pretty stubborn about being independent, you know.”

First move
“I know,” Diane agreed. “Still, I wonder whether we should make the first move on that.”

Darlene went through with the demotion, and Marty ended up quitting – and suing for disability discrimination. The company said Marty never asked for an accommodation, so the supervisor had gone by the book.

Did the company win? (Answer below.)

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Answer:

No, the company lost.

The HR manager and the supervisor had interpreted the law almost perfectly, the judge noted in the decision. Almost.

The Americans with Disabilities Act does state that in most cases, the employee is required to request a disability accommodation from the employer.

This was the exception, however.

When an employee’s disability is so obvious and the employee’s performance is below standards, the responsibility falls on the supervisor to approach the employee and suggest an accommodation for the disability.

Of course, the employee isn’t required to accept an accommodation, and in that instance the matter is closed. But for obvious disabilities, the supervisor must make the first move and ask.

Don’t ignore the obvious
The lesson here is that you just can’t ignore the obvious.

Being aware of the problem, the supervisor could have approached the employee and made a suggestion, especially because the employee was struggling with performance.

Broaching a subject like that can be difficult, but if you keep it performance-related, you’re on safe legal ground.

[Based on: Brady v. Wal-Mart Stores, Inc.]

Ever since the ADA Amendments Act got passed in January, employers and HR managers have been asking, “So, what does all this mean?” The Equal Employment Opportunity Commission has finally gotten around to giving some answers.

Last week, the EEOC laid out an explanation of employer responsibilities for following the act (knows as “ADAAA”).

• First, in a key passage, the agency summarized the intent of the act:

“The definition of disability … shall be construed broadly, to the maximum extent permitted by the terms of the ADA. The focus of an ADA case should be on whether discrimination occurred, not on whether an individual meets the definition of ‘disability.’”

Meaning: Besides broadening the circumstances under which a worker is considered disabled, the act also broadens the circumstances under which a worker can sue for disability discrimination. In other words, if a worker can show that an employer discriminated because of perceived disability — even if the worker wasn’t disabled — the worker has a case against the employer.

• The agency also put into focus some of the broader circumstances that make up a disability:

“An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.”

Here’s how that differs from earlier rules: Previously, an inability to do the physical requirements of a job wasn’t enough to qualify a worker as disabled. The individual also had to show some limitation in performing “major life activities,” such as walking, eating, etc. The EEOC’s interpretation of the new rules turns all that around to a point that a limitation in doing the specific tasks of a job could be enough to categorize someone as disabled.

The EEOC provides an example:

“Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.”

Meaning: A long-term limitation on doing a work function is a disability.

• Short-term limits on major life activities now also fall under the definition:

“An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.”

Meaning: What was considered a “temporary condition” can now be considered a “disability.”

Any good news?
It’s not all bad. The regulations maintain the existing requirement that a worker must be a “qualified individual with a disability.” That means the individual “satisfies the requisite skill, experience, education and other job-related requirements … and who, with or without reasonable accommodation, can perform the essential functions of such position.”

So you still can require applicants and employees to meet essential job requirements, which, for most jobs, include regular and predictable attendance and conformance to the basic standards of performance and behavior.

And even in the case of the employee with a 20-pound lifting restriction, yes, that person may be disabled, but you still can disqualify the person because lifting is an essential part of the job and no reasonable accommodation is available.

As for the temporary part (”fewer than six months”) of the regs,  the EEOC recognizes that not all temporary conditions are disabilities:

“Temporary, non-chronic impairments of short duration . . . such as the common cold, seasonal or common influenza, a sprained joint, minor or non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely” generally are not disabilities.

In a recent opinion letter, the EEOC tried to clear up some confusion over the wording of help wanted ads.

The question: Does including a phrase such as “women and minorities encouraged to apply” break the law?

The answer: No, according to the EEOC.

Encouraging certain groups to apply doesn’t mean you’re biased against or in favor of any type of person.

However, the letter points out that some companies make the mistake of using similar — but discriminatory — phrasing. For example: “We are seeking women … ”

“Seeking” implies a preference for that group. Therefore, a court would likely consider it to be illegal bias.

Read the entire Opinion Letter here.

It’s a constant challenge for employers: Offering the benefits and incentives that employees desire without running into compliance problems with the feds.

Here are three popular benefits that present a legal minefield for benefits managers — and ways companies can offer them without fear of repercussions.

1. Wellness programs and the ADA

While every employer wants to promote healthier lifestyles for its employees, some wellness initiatives run afoul of the Americans with Disabilities Act — if the initiatives are constructed in a manner that makes it more difficult for certain employees to participate.

Example: A company unveils an on-site exercise program; participants can bring home perks like extra vacation days, cash bonuses, gift cards, etc.

Problem: The company has several disabled employees who are physically unable to participate and, therefore, can’t reap the benefits of the rewards.

Fix: If your wellness program includes certain features in which disabled employees can’t participate, create some alternatives where these employees can earn the rewards — like attending a class on the benefits of doing the cardiovascular exercises permitted by their disability.

Note: Don’t forget the tax implications of your rewards.  For example, all cash equivalent rewards — gift cards, etc. — are taxable, where as the tax status of an iPod Shuffle or movie tickets is uncertain.

2. Domestic partner benefits

While domestic partner benefits are highly coveted by many employees, domestic partners aren’t generally granted the same protections as spouses under ERISA and the IRS regs. For example, unlike spousal health coverage, domestic partner benefits are taxable.

However, there are two exemptions:

1. If the employee’s partner qualifies as a dependent, or
2. If the partner is recognized as a spouse or the benefits are protected under state law, as in MA, CT and VT.

And there are more restrictions surrounding the rules for flexible spending accounts (FSAs). However, ERISA trumps state law, and flex accounts are subject to the Defense of Marriage Act (DOMA), which only recognizes traditional marriages.

The effects: Flex accounts may not reimburse workers for domestic partner medical care, care of a domestic partner’s dependent, etc.

To get around the red tape, many companies require the employee to cover the entire cost of the partner’s health coverage. To balance this out, some employers adjust the worker’s pay to make up for the difference.

For a more extensive look at the tax problems with domestic partner benefits, check here.

3. Employee referral programs and the EEOC

The Equal Employment Opportunity Commission has already addressed the problems that accompany word-of-mouth recruiting. According to the EEOC, employee referrals can limit workplace diversity and increase the risk for discrimination because employees tend to only recommend colleagues of the same race, gender ethnicity.

Potential legal problems: Even in cases of accidental discrimination, companies that do extensive hiring based on employee referrals can be fined or sued by the EEOC. To add to more pressure to employers, EEOC compliance manuals now recommend that most firms scale back — or eliminate altogether — their employee referral programs.

Safeguard: If your company has no intention of scrapping its employee referral program, make sure to measure its effect on employee diversity and encourage widespread participation.

When IT finds someone’s been browsing offensive Web sites on a work computer, you’d normally fire the employee. But what happens when it’s a computer several employees share?

That’s what happened in this recent case:

All employees in one department of a hospital shared a computer. Employees each had their own username and password, and company policy required them to log in under their own name and log out when they were finished.

But in practice, the first employee to use the computer would normally stay logged in all day, with all employees working under that name.

During one shift, an employee noticed pornographic sites in the computer’s Web browsing history. She complained to HR, who brought the matter to IT for an investigation.

It turned out that the only male employee in the department was logged in to the computer at the time the porn sites were visited. He denied going to the sites, citing the common practice of all employees sharing one login ID.

A further investigation showed the man was the only department employee scheduled to work on a day when some some of the sites were browsed. He was fired.

Still, he said he didn’t do it — and he sued the hospital for gender discrimination, claiming they assumed he viewed the pornography because he was the only male employee.

The company asked a judge to toss the case, arguing it conducted a thorough investigation before the employee was fired.

The court agreed. First, since the man was logged in to the computer at the time, it was reasonable to start the investigation with him. And the list of possible perpetrators was narrowed down even further by comparing employees’ schedules with the times the sites were accessed, giving the company good cause to fire the employee.

Lesson: When multiple employees share one computer, it’s smart to create a policy requiring individuals to log in and out. But to track activity, the company still has to enforce the policy. If the hospital had done that in this case, it may have avoided the lawsuit altogether.

Cite: Farr v. St. Francis Hospital and Health Centers

The U.S. Bureau of Labor Statistics produced data showing in 2008, women who were full-time wage and salary workers had median weekly earnings that were about 80% of the median for their male counterparts. Median weekly wages were $638 for women, $798 for men. In 1979,  women earned about 62% of what men made.

Here’s a percentage comparison to men between ‘79 and ‘08, by typical age groups in the workforce:

• Age 20-24: ‘79 — women made 61% of what men made; ‘08 — women made 80% of what men made
• 25-34: ‘79 — 68%; ‘08 — 88%
• 35-44: ‘79 — 58%; ‘08 — 77%
• 45-54: ‘79 — 57%; ‘08 — 77%
• 55-64: ‘79 — 60%; ‘08 — 78%

Clearly, women who work in in entry-level positions that typically go to workers under age 25 come the closest — 88% — to equaling the pay of their male counterparts. In most other age groups, women make about three-quarters of what male counterparts make.

Apart from the cold numbers, there’s the big question: Even with the gains, women still make less. Why?

Some of course will point to sex discrimination. Others will say it’s because women more often than men drop out in mid- or early-career to raise children, and then have to play catch-up later on.

For whatever reason, the gap exists.

To see the full BLS report, “Highlights of Women’s Earnings 2008,” go here.

That’s what one construction firm learned recently after settling a sexual harassment suit brought by a male employee.

The employee claimed his male supervisor subject him to a constant barrage of obscene comments, sexual innuendos, propositions and implied physical threats.

When he brought the conduct to attention of upper management, he was allegedly told, “This is a construction site; this kind of thing goes on all the time.”

With help from the EEOC, the employee sued. The company agreed to settle for an undisclosed amount.

The lesson: Managers need to take all harassment complaints seriously, no matter what the genders of the accuser and the accused.

Cite: EEOC v. Haydon Brothers Contracting, Inc.