HRM 6302 Unit IV

HRM 6302, Employment Law 1

Course Learning Outcomes for Unit IV Upon completion of this unit, students should be able to:

4. Characterize conduct that violates federal anti-discrimination laws in employment. 4.1 Analyze the requirements a plaintiff must establish to make a claim of failure to reasonably

accommodate.

5. Explain the concept of reasonable accommodation under the Americans with Disabilities Act (ADA). 5.1 Discuss the interactive process required by the ADA and the employer duty to reasonably

accommodate disabilities. 5.2 Describe reasonable accommodations for a given scenario.

Required Unit Resources Chapter 9: Reasonably Accommodating Disability and Religion, pp. 323–366 Unit Lesson Simply prohibiting discrimination was insufficient for full protection of religion as a protected category. The Civil Rights Act of 1964 therefore included a requirement that employers reasonably accommodate religious observance and practice, unless an employer can show that accommodation would be an undue hardship on the business. This requirement contributes to a diverse workplace, enabling workers who might otherwise not meet certain workplace requirements to earn a living. In the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores, Inc. (1993), the court found that the retailer could not refuse a Muslim woman wearing a headscarf for religious reasons even if it clashed with the store’s dress code. They further found that the employee did not specifically have to state the headscarf was required by her religious faith and ask to be accommodated. The court found that if the employer at least suspected that the scarf was religious in its purpose, it must accommodate. Reasonable accommodation appeared again in employment law when the Americans with Disabilities Act (ADA) passed in 1990. It became the cornerstone of workplace disability guidance. In 2008, the ADA Amendments Act (ADAAA) further expanded and more clearly defined conditions that qualify as disabilities and shifted the focus from the applicant or employee to the employer and its actions to assist that individual to enable him or her to work (Walsh, 2019). In the area of religion, reasonable accommodation boosts diversity in the workforce by breaking down barriers to workers who have the skills and abilities to be productive. In 1993, Congress passed the Family and Medical Leave Act (FMLA) to provide unpaid leave for the employee’s own serious medical condition, to care for a close relative with a serious health condition, and for the birth of a child (Walsh, 2019). While serious health condition is not synonymous with disability, there is some overlap and the potential for complex situations exists when overlap occurs. While FMLA addressed a specific need for short-term leave in defined situations for employees who could heal and get back to work relatively quickly, it did not address situations where longer leaves are needed by disabled employees. Thus, in the period after the ADAAA was passed in 2008, the U.S. Equal Employment Opportunity Commission (EEOC) turned its attention to employer leave policies that it finds operate as obstacles to accommodating disabled workers. In one of its biggest cases, the EEOC claimed that Verizon violated the ADA by refusing to make exceptions to its no fault attendance policy to accommodate employees with disabilities. Under the company's policy, after an employee accumulated a defined number of chargeable absences, he or she was placed on a disciplinary step, which could lead to more serious discipline, including termination. Verizon settled the case for $20 million and agreed to revise its attendance plans and policies,

UNIT IV STUDY GUIDE Reasonable Accommodation

HRM 6302, Employment Law 2

UNIT x STUDY GUIDE Title

provide mandatory training for employees responsible for administering these plans and policies, and report employee complaints of disability discrimination to the EEOC (EEOC, 2011). The agency has also targeted workers’ compensation leave exhaustion policies and maximum leave periods on the same theory – that they unlawfully restrict the use of leave as a reasonable accommodation. Despite the efforts of the ADA, unemployment remains high among disabled Americans. According to the Bureau of Labor Statistics (BLS, 2016), the unemployment rate for persons with a disability was 10.7 percent in 2015, approximately double the 5.1 percent unemployment rate of those with no disability. Moreover, EEOC (n.d.) data showed that disability discrimination charges reached an all-time high in 2015, an increase of six percent from 2014. In 2016, the EEOC released a resource to address issues surrounding leave from the workplace as a reasonable accommodation (EEOC, 2016). The document, titled Employer-Provided Leave and the Americans with Disabilities Act, addresses a number of issues, and provides specific examples to illustrate how policies can unreasonably restrict leave and how it can instead be modified to accommodate disabled employees. In addressing how the ADA intersects with the FMLA, the EEOC reminds employers that an employee may be eligible for leave under the ADA even if he or she is not eligible for Family and Medical Leave or has exhausted leave under that law (EEOC, 2016). Nevertheless, an employer may take into account leave taken under the FMLA in determining whether additional leave would be an undue hardship. The EEOC resource makes clear that inflexible policies that cap leave at a specific amount of time, no fault policies that count every absence the same way, and 100 percent healed policies that require employees to certify that they have no work restrictions do not comply with the ADA. At the same time, the EEOC does not leave employers without means to work through what are often thorny situations. Indefinite leave is not required as a reasonable accommodation. To assess leave that is required, employers may communicate with employees on leave to inquire about their status, potential need for additional leave, and the likelihood of returning to work after any additional leave (EEOC, 2016). Further, employers should consider reassigning an employee to an open position for which he or she is qualified as an accommodation when the employee is unable to return to his or her current role. A recent investigation of a concern by an employee illustrated the ways in which the FMLA and ADA can intersect and the traps into which employers can fall. An employee who was being counseled for attendance and was on the verge of termination reported that she believed she was being treated unfairly because her absences and tardiness were for physical therapy and other medical appointments and for personal legal matters. She had used all her paid time off and received subsequent performance counseling for taking time in excess of her paid time off. This case presented a complex array of issues: reasonable accommodation of potential physical and mental disabilities, leave under the FMLA, and policies on attendance and tardiness. The employee’s managers believed that she had exceeded her allowed time off and violated the employer’s policy, and therefore, the issue warranted discipline. This approach, however, placed the employer at risk of a charge of discrimination under the ADA and a charge of violating the FMLA. To evaluate the employee’s claim, it had to be determined whether she had informed her management that her absences were related to a medical condition that was protected (and the information gathered showed that she had). Next, each of the absences and tardiness in the period covered by the potential discipline required individual review to determine whether the absence or tardiness was for a protected reason under the ADA or FMLA. If so, then the absence could not be considered for purposes of any discipline. This could have been avoided had the managers had recognized that the employee was taking time off for potentially protected reasons and was seeking an accommodation to the employer’s policies or FMLA intermittent leave for medical treatment. Instead, the managers involved focused on the inconvenience of the employee’s absences and their questions about the validity of her absences and failed to seek human resources guidance to navigate what in reality was a complex situation, which to them seemed a simple case of excessive absenteeism. The message to employers is meant to be clear and unequivocal. The standard is that employers must carefully evaluate situations involving accommodation of employee and applicant disabilities. Policies and practices should be routinely reviewed, and revised as needed, to ensure reasonable accommodation of all disabled workers. With regard to attendance policies in particular, they should include the ability to excuse

HRM 6302, Employment Law 3

UNIT x STUDY GUIDE Title

absences under the ADA, FMLA, and state and local laws that provide for leave. Those responsible for the administration of policies and procedures must consider modifications of policies and practices when situations arise that would impose discipline or some other adverse action on an employee for absences caused by a protected disability. They must also consider exceptions to regular practices when such an exception may constitute a reasonable accommodation. Accurate and thorough documentation of all requests for accommodation and all responses by the employer are very important. Employers should document the duties of the position in question, the ability to assign the disabled employee's responsibilities to others, and the need for and cost of replacement workers. Above all, employers must realize there is no one-size-fits-all solution in this difficult area. In each situation, accommodations must be reviewed and implemented based on the individual and sometimes unique facts of each particular case.

References Bureau of Labor Statistics. (2016, July 21). Persons with a disability: Labor force characteristics summary

[News release]. http://www.bls.gov/news.release/disabl.nr0.htm EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (U.S. 2015). U.S. Equal Employment Opportunity Commission. (n.d.). Charge statistics (Charges filed with EEOC) FY

1997 through FY 2015. https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm U.S. Equal Employment Opportunity Commission. (2011, July 6). Verizon to pay $20 million to settle

nationwide EEOC disability suit [Press release]. https://www.eeoc.gov/eeoc/newsroom/release/7-6- 11a.cfm

U.S. Equal Employment Opportunity Commission. (2016, May 9). Employer-provided leave and the

Americans with Disabilities Act. https://www.eeoc.gov/laws/guidance/employer-provided-leave-and- americans-disabilities-act

Walsh, D. J. (2019). Employment law for human resource practice (6th ed.). Cengage Learning.

https://online.vitalsource.com/#/books/9781337670685 Suggested Unit Resources You are encouraged to read the following chapter in your textbook, which continues this unit’s discussion of other employment law issues posed by diverse workforces. Chapter 10: Work-Life Conflicts and Other Diversity Issues, pp. 373–413 In order to access the following resources, click the links below. The following PowerPoint presentations are supplements to the textbook chapter readings and are provided for further knowledge and review of the unit materials. Chapter 9 presentation (PowerPoint) or Chapter 9 presentation (PDF) Chapter 10 presentation (PowerPoint) or Chapter 10 presentation (PDF)

HRM 6302, Employment Law 4

UNIT x STUDY GUIDE Title

Learning Activities (Nongraded) Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit them. If you have questions, contact your instructor for further guidance and information. At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic situations that relate to employment law. Exploring these questions allows you the opportunity to further your understanding of the concepts in each chapter and prepares you for similar situations you may encounter in your workplace.

• Review the Chapter 9 questions in your textbook on pages 368–371.

HRM 6302, Employment Law 1

Course Learning Outcomes for Unit IV Upon completion of this unit, students should be able to:

4. Characterize conduct that violates federal anti-discrimination laws in employment. 4.1 Analyze the requirements a plaintiff must establish to make a claim of failure to reasonably

accommodate.

5. Explain the concept of reasonable accommodation under the Americans with Disabilities Act (ADA). 5.1 Discuss the interactive process required by the ADA and the employer duty to reasonably

accommodate disabilities. 5.2 Describe reasonable accommodations for a given scenario.

Required Unit Resources Chapter 9: Reasonably Accommodating Disability and Religion, pp. 323–366 Unit Lesson Simply prohibiting discrimination was insufficient for full protection of religion as a protected category. The Civil Rights Act of 1964 therefore included a requirement that employers reasonably accommodate religious observance and practice, unless an employer can show that accommodation would be an undue hardship on the business. This requirement contributes to a diverse workplace, enabling workers who might otherwise not meet certain workplace requirements to earn a living. In the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores, Inc. (1993), the court found that the retailer could not refuse a Muslim woman wearing a headscarf for religious reasons even if it clashed with the store’s dress code. They further found that the employee did not specifically have to state the headscarf was required by her religious faith and ask to be accommodated. The court found that if the employer at least suspected that the scarf was religious in its purpose, it must accommodate. Reasonable accommodation appeared again in employment law when the Americans with Disabilities Act (ADA) passed in 1990. It became the cornerstone of workplace disability guidance. In 2008, the ADA Amendments Act (ADAAA) further expanded and more clearly defined conditions that qualify as disabilities and shifted the focus from the applicant or employee to the employer and its actions to assist that individual to enable him or her to work (Walsh, 2019). In the area of religion, reasonable accommodation boosts diversity in the workforce by breaking down barriers to workers who have the skills and abilities to be productive. In 1993, Congress passed the Family and Medical Leave Act (FMLA) to provide unpaid leave for the employee’s own serious medical condition, to care for a close relative with a serious health condition, and for the birth of a child (Walsh, 2019). While serious health condition is not synonymous with disability, there is some overlap and the potential for complex situations exists when overlap occurs. While FMLA addressed a specific need for short-term leave in defined situations for employees who could heal and get back to work relatively quickly, it did not address situations where longer leaves are needed by disabled employees. Thus, in the period after the ADAAA was passed in 2008, the U.S. Equal Employment Opportunity Commission (EEOC) turned its attention to employer leave policies that it finds operate as obstacles to accommodating disabled workers. In one of its biggest cases, the EEOC claimed that Verizon violated the ADA by refusing to make exceptions to its no fault attendance policy to accommodate employees with disabilities. Under the company's policy, after an employee accumulated a defined number of chargeable absences, he or she was placed on a disciplinary step, which could lead to more serious discipline, including termination. Verizon settled the case for $20 million and agreed to revise its attendance plans and policies,

UNIT IV STUDY GUIDE Reasonable Accommodation

HRM 6302, Employment Law 2

UNIT x STUDY GUIDE Title

provide mandatory training for employees responsible for administering these plans and policies, and report employee complaints of disability discrimination to the EEOC (EEOC, 2011). The agency has also targeted workers’ compensation leave exhaustion policies and maximum leave periods on the same theory – that they unlawfully restrict the use of leave as a reasonable accommodation. Despite the efforts of the ADA, unemployment remains high among disabled Americans. According to the Bureau of Labor Statistics (BLS, 2016), the unemployment rate for persons with a disability was 10.7 percent in 2015, approximately double the 5.1 percent unemployment rate of those with no disability. Moreover, EEOC (n.d.) data showed that disability discrimination charges reached an all-time high in 2015, an increase of six percent from 2014. In 2016, the EEOC released a resource to address issues surrounding leave from the workplace as a reasonable accommodation (EEOC, 2016). The document, titled Employer-Provided Leave and the Americans with Disabilities Act, addresses a number of issues, and provides specific examples to illustrate how policies can unreasonably restrict leave and how it can instead be modified to accommodate disabled employees. In addressing how the ADA intersects with the FMLA, the EEOC reminds employers that an employee may be eligible for leave under the ADA even if he or she is not eligible for Family and Medical Leave or has exhausted leave under that law (EEOC, 2016). Nevertheless, an employer may take into account leave taken under the FMLA in determining whether additional leave would be an undue hardship. The EEOC resource makes clear that inflexible policies that cap leave at a specific amount of time, no fault policies that count every absence the same way, and 100 percent healed policies that require employees to certify that they have no work restrictions do not comply with the ADA. At the same time, the EEOC does not leave employers without means to work through what are often thorny situations. Indefinite leave is not required as a reasonable accommodation. To assess leave that is required, employers may communicate with employees on leave to inquire about their status, potential need for additional leave, and the likelihood of returning to work after any additional leave (EEOC, 2016). Further, employers should consider reassigning an employee to an open position for which he or she is qualified as an accommodation when the employee is unable to return to his or her current role. A recent investigation of a concern by an employee illustrated the ways in which the FMLA and ADA can intersect and the traps into which employers can fall. An employee who was being counseled for attendance and was on the verge of termination reported that she believed she was being treated unfairly because her absences and tardiness were for physical therapy and other medical appointments and for personal legal matters. She had used all her paid time off and received subsequent performance counseling for taking time in excess of her paid time off. This case presented a complex array of issues: reasonable accommodation of potential physical and mental disabilities, leave under the FMLA, and policies on attendance and tardiness. The employee’s managers believed that she had exceeded her allowed time off and violated the employer’s policy, and therefore, the issue warranted discipline. This approach, however, placed the employer at risk of a charge of discrimination under the ADA and a charge of violating the FMLA. To evaluate the employee’s claim, it had to be determined whether she had informed her management that her absences were related to a medical condition that was protected (and the information gathered showed that she had). Next, each of the absences and tardiness in the period covered by the potential discipline required individual review to determine whether the absence or tardiness was for a protected reason under the ADA or FMLA. If so, then the absence could not be considered for purposes of any discipline. This could have been avoided had the managers had recognized that the employee was taking time off for potentially protected reasons and was seeking an accommodation to the employer’s policies or FMLA intermittent leave for medical treatment. Instead, the managers involved focused on the inconvenience of the employee’s absences and their questions about the validity of her absences and failed to seek human resources guidance to navigate what in reality was a complex situation, which to them seemed a simple case of excessive absenteeism. The message to employers is meant to be clear and unequivocal. The standard is that employers must carefully evaluate situations involving accommodation of employee and applicant disabilities. Policies and practices should be routinely reviewed, and revised as needed, to ensure reasonable accommodation of all disabled workers. With regard to attendance policies in particular, they should include the ability to excuse

HRM 6302, Employment Law 3

UNIT x STUDY GUIDE Title

absences under the ADA, FMLA, and state and local laws that provide for leave. Those responsible for the administration of policies and procedures must consider modifications of policies and practices when situations arise that would impose discipline or some other adverse action on an employee for absences caused by a protected disability. They must also consider exceptions to regular practices when such an exception may constitute a reasonable accommodation. Accurate and thorough documentation of all requests for accommodation and all responses by the employer are very important. Employers should document the duties of the position in question, the ability to assign the disabled employee's responsibilities to others, and the need for and cost of replacement workers. Above all, employers must realize there is no one-size-fits-all solution in this difficult area. In each situation, accommodations must be reviewed and implemented based on the individual and sometimes unique facts of each particular case.

References Bureau of Labor Statistics. (2016, July 21). Persons with a disability: Labor force characteristics summary

[News release]. http://www.bls.gov/news.release/disabl.nr0.htm EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (U.S. 2015). U.S. Equal Employment Opportunity Commission. (n.d.). Charge statistics (Charges filed with EEOC) FY

1997 through FY 2015. https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm U.S. Equal Employment Opportunity Commission. (2011, July 6). Verizon to pay $20 million to settle

nationwide EEOC disability suit [Press release]. https://www.eeoc.gov/eeoc/newsroom/release/7-6- 11a.cfm

U.S. Equal Employment Opportunity Commission. (2016, May 9). Employer-provided leave and the

Americans with Disabilities Act. https://www.eeoc.gov/laws/guidance/employer-provided-leave-and- americans-disabilities-act

Walsh, D. J. (2019). Employment law for human resource practice (6th ed.). Cengage Learning.

https://online.vitalsource.com/#/books/9781337670685 Suggested Unit Resources You are encouraged to read the following chapter in your textbook, which continues this unit’s discussion of other employment law issues posed by diverse workforces. Chapter 10: Work-Life Conflicts and Other Diversity Issues, pp. 373–413 In order to access the following resources, click the links below. The following PowerPoint presentations are supplements to the textbook chapter readings and are provided for further knowledge and review of the unit materials. Chapter 9 presentation (PowerPoint) or Chapter 9 presentation (PDF) Chapter 10 presentation (PowerPoint) or Chapter 10 presentation (PDF)

HRM 6302, Employment Law 4

UNIT x STUDY GUIDE Title

Learning Activities (Nongraded) Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit them. If you have questions, contact your instructor for further guidance and information. At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic situations that relate to employment law. Exploring these questions allows you the opportunity to further your understanding of the concepts in each chapter and prepares you for similar situations you may encounter in your workplace.

• Review the Chapter 9 questions in your textbook on pages 368–371.