Since the Americans with Disabilities Act (ADA) was amended a few years ago to expand on what is considered a “disability,” almost any medical condition of any consequence may now be enough for an employee to be considered “disabled.”  While many past ADA claims were defended by arguing that the employee was not truly disabled, that defense is practically gone now (unless the employee really has no cognizable medical condition).
Continue Reading Qualification is Key under the ADA

Last month the EEOC issued its Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employers from obtaining medical information from employees unless those inquiries are part of a voluntary employee health program. Under the ADA an employee wellness program must also offer reasonable accommodations to individuals with disabilities so they have equal access to program fringe benefits.
Continue Reading Don’t Let An Employee Wellness Program Make You Sick

Managing interpersonal conflict in the workplace is always a delicate and time-consuming duty for managers and Human Resources personnel.  But what happens when an employee claims that he or she suffers from a disability due to stress from working with a specific manager or supervisor?  Must the employer accommodate the alleged disability by transferring the employee (or the supervisor!) to another role within the company?  According to a recent opinion from the California Court of Appeals, Higgins-Williams v. Sutter Medical Foundation, 237 Cal. App. 4th 78 (3d Dist. 2015), the answer is No.
Continue Reading My Boss Drives Me Nuts! But Is That A Disability?

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.
Continue Reading How To Prevent Discrimination And Retaliation Against Domestic Violence Victims–Part II

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.
Continue Reading How To Prevent Discrimination And Retaliation Against Domestic Violence Victims–Part I

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.
Continue Reading Fired for Being Too Fat? The ADA May Make That Illegal

Organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to establish federal and state laws that specifically prohibit discrimination in employment based on a person’s weight.  According to a NAAFA report from 2007, the likelihood of weight-based employment discrimination is 12 times more likely for overweight adults, 37 times more likely for obese persons, and 100 times more likely for severely obese adults.  Yet to date, no federal legislation exists that specifically prohibits discrimination based on weight, and only one state (Michigan) and a handful of cities have passed laws that make weight-based discrimination illegal. 
Continue Reading Will Obesity Become A Protected Characteristic?

Online social media presents great rewards – and potential risks – for employers.  With more than 500 million active users on Facebook alone, there is no question that a large percentage of employees in every workforce use some form of online social networking.  Even when information on social media networks is not publicly available (such as when employees use “friends only” privacy settings in a social media network such as Facebook), employees often grant access to (“friend”) their supervisors, many of whom also use the same social media.  Likewise, there is no doubt that social media use goes on during work hours and at work – even where employers takes steps to restrict this behavior. 
Continue Reading Does Federal Genetic Privacy Law Prohibit Employers from Monitoring their Employees on Facebook?

You may have seen a recent news item about a woman who claims her supervisor told her to “change your bra, or you don’t have a job.”  No, this is not one more episode of sexual harassment in the workplace.  Instead, it is a somewhat awkward, perhaps amusing (at least for those not involved), definitely unique workplace situation – another example of why being an HR professional is never boring. 
Continue Reading “Lose Your Bra or Lose Your Job”

When the wars in Iraq and Afghanistan began, employers faced many issues with employees departing for military service.  Now that soldiers are returning in greater numbers and coming back to their jobs, are you keeping in mind all of the requirements under federal law, including USERRA and the FMLA – and even the ADA? 
Continue Reading Are You Ready for Our Heroes to Come Home?