Human Resources and Workplaces

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We previously posted about the United States Equal Employment Opportunity Commission (“EEOC”)’s new fact sheet, entitled “Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” and considered the fact sheet’s examples as to how an employer might violate Title VII’s prohibitions in discriminating against applicants or employees who experience domestic or dating violence, sexual assault, or stalking.

In this post we’re going to consider the ADA examples provided on the fact sheet, and our recommendations for how you can avoid discriminating against the victims of domestic violence in your workplace.

As HR professionals, we often think about how to prevent domestic violence from spilling over into workplace violence, through the use of workplace violence policies, domestic violence response teams, and “no guns in the workplace” policies.

You may not, however, have given much thought as to how to prevent discrimination and retaliation against victims of domestic violence who are employed by your company, or who have sought employment with your company.  This issue is crucially important to victims of domestic violence; when they lose their jobs, or fail to obtain employment, they lose the ability to be economically independent, and oftentimes then remain controlled by their abuser.  This issue is also critically important to employers, who may inadvertently subject themselves to liability if they are not aware of the federal, state, and local laws that protect the victims of domestic violence from discrimination and retaliation.

Many employers are committed to promoting and maintaining a diverse workforce.  But why do employers value diversity?  Does diversity really affect a company’s balance sheet?  Or does diversity only have abstract value?

A brief that was recently filed with the U.S. Supreme Court argues that some employers seek diversity as a tool for increasing revenue and remaining competitive in global markets.

The Supreme Court recently held oral arguments in a case involving affirmative action policies in higher education.  The case involves a challenge to the admissions policy at the University of Texas — a policy which considers an applicant’s race as one of several relevant admissions criteria.

Name:  Richard E. “Rick” Sullivan
Title:  Principal
Company:  HR STAR Consulting

1.  How many years have you been working in HR?  35 + years

2.  Favorite thing about working in HR?  Problem Solving; Aligning the human resources with the business focus

3.  Best piece of advice you ever received about a career in HR?  Listen; Be Flexible

When you are conducting a workplace investigation, do you instruct employees interviewed not to discuss the investigation with other employees?  You probably do.  It protects the fairness, integrity and truth-gathering function of the investigation.  It allows you to do the best possible investigation.

Did you know, however, that giving that instruction to employees — to not discuss the investigation with co-workers — may be illegal?  The National Labor Relations Board (NLRB) recently said it is.  Read on for their explanation and what you can do about it.

Employers often wonder about how best to deal with employees with disabilities. Even in this enlightened, post-ADAAA (Americans with Disabilities Act Amendments Act of 2008) society, there are still employers that are afraid to hire applicants or worry about keeping employees who they learn have some type of physical or mental impairment that constitutes a disability.

However, according to an article published on Diversityinc.com, How Recruiting People With Disabilities Solved Toyota’s Costly Problem, when Toyota Motor North America needed to add a production process that would require additional employees to implement, the company decided to utilize its employees with known developmental disabilities to handle the project. 

Does any employee believe that interrupting a meeting of company executives and mooning them would not get you fired?  Well, we found one who does, and he even went to court over his belief.  His story is a good reminder about handling awful behavior and terminating employees the right way.

As reported yesterday, Jason Selch worked for an asset management company that, through some mergers, became a subsidiary of Bank of America.  He was upset with his proposed compensation after the merger.  He got even angrier when a co-worker he liked was fired after refusing to accept a lower compensation plan.  So, Selch decided to protest in his own, special way — he burst into a meeting of executives and, after confirming he was not subject to a non-compete, he mooned the executives and left.

Employers in the Atlanta area may have heard about this story of a school teacher seeking additional paid time off to care for his wife, who is suffering from a rare bacterial infection that required the amputation of her hands and feet.  His co-workers have tried to come to his aid:  other teachers at the school have offered to “donate” some of their accrued paid time off (“PTO”) to the teacher, who has already exhausted all of his PTO caring for his wife.  However, the school board rejected those offers, citing a policy that prohibits employees from transferring PTO.  Here is how a school board spokesperson explained the situation to a local newspaper:

As my colleague considered several months ago, organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to counter the prejudices many have against obese individuals.  As part of its efforts, NAAFA is working to establish federal and state laws making obesity a protected class.  To date, however, these efforts have only resulted in one state (Michigan) and a handful of cities passing laws making weight-based discrimination illegal.

While efforts to make obesity a protected class have not been especially successful, there has, however, been more movement towards the greater recognition of obesity as a disability under the Americans with Disabilities Act (ADA).   My colleague previously noted that a federal district court in Louisiana had found that an employee who weighed 527 pounds at the time of her termination was “an individual with a disability” as defined under the ADA.

You are the HR manager and have just received an FMLA leave request from an employee.  At almost exactly the same time, the employee’s supervisor comes to you wanting to terminate the employee because of performance issues.  You know that FMLA leave does not prohibit an employer from taking action based on an unrelated, legitimate business reason, so you review the supervisor’s information (which supports termination) and sign off on the decision.

Of course, the employee then sues the company for violating the FMLA, claiming the termination was retaliation for her leave request.  Later, you learn that the supervisor’s information that justified termination was not true or not supported by the facts.  You (and others) were duped by the supervisor to permit the termination!  It may be cold comfort for the company that, at least, this isn’t a willful violation of the FMLA, rendering the company liable for double damages, also known as liquidated damages.

Or is it?