Employment Practices liabilityWhen bad thIngs happen to good schools Sharon K. Stull, J.D., SPHR-CA
What gets us in trouble? • What employment practices get us in trouble? • Handling complaints • Documentation • Discrimination • Harassment • ADA / Interactive Process • Retaliation
Handling complaints • Legal Obligation? • Taking all reasonable measures to prevent harassment or discrimination of any kind. • Training - everyone! • Recognizing harassment/discrimination/ADA Issues. • Dealing with issues before they become a “complaint” • Documenting that initial complaint • Reporting • Follow-through and follow-up
documentation • Why is it important to document? • What kinds of things should you be documenting? • How do you document that initial complaint? • 5Ws + 1H
Formula for documenting • 5Ws + 1H • Who – who are the parties involved? • What – what exactly happened? • When – dates, times, how many times? • Where – locations • Witnesses – did anyone see or hear it; did you tell anyone about it? • How did it make you feel?
discrimination/harassment • What is discrimination? • When someone is treated differently because of their protected class status • What kinds of discrimination exist?
Discrimination/harassment Race/Color National Origin Ethnicity/Ancestry Religion Sex/Gender Age Sexual Harassment Marital Status Transgender Status Veteran Status Medical Condition Whistleblower Status Association With Perception of Retaliation Disability
Americans with disabilities act • The ADA is intended to enable disabled persons to compete in the workplace based on the same performance standards and requirements that employers expect of persons who are not disabled. • VERY employee oriented – will try to find in favor of the employee.
Americans with disabilities act Passed in 1990 and makes it: “unlawful to discriminate in employment against a qualified individual with a disability.” Enforced by EEOC or DFEH
Disability 1. A physical or mental impairment that substantially* limits one or more of the major life activities. * California – merely limits 2. A record of such impairment 3. Being regarded as having such impairment.
Major life activities Functions such as caring for oneself, performing manual tasks, walking, seeing, hearing speaking, breathing, learning and working.
limits Federal standard is “substantially limits” California standard is “merely limits” Federal law takes into consideration “mitigation.” California law does not.
Qualified individual “An individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.” 29 CFR Part 1630
Essential functions The fundamental job duties of the employment position. • The reason the position exists is to perform that function. • Limited number of employees available to perform that function • Function highly specialized
Reasonable accommodation Is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of the job or to enjoy benefits or privileges of employment equal to those enjoyed by employees without disabilities.
accommodations Providing or modifying equipment or devices Job restructuring Part-time or modified work schedules Reassignment to a vacant position Adjusting or modifying examinations, training materials or policies Providing readers or interpreters Making the workplace readily accessible to and usable by people with disabilities.
Undue hardship An employer is required to provide a reasonable accommodation unless: it is an undue hardship or will incur significant difficulty or expense Most accommodations cost less than $200
When … An accommodation is needed: • When an employee asks for one An employer must know that an applicant or employee needs a reasonable accommodation. Hidden vs. Apparent Disability
Disability not apparent Generally, it is the responsibility of the applicant or employee with a disability to inform the employer that an accommodation is needed. The request does not have to be in writing and no “magic language” is required
Employee requests Courts have suggested in some cases that it is enough for the employee to say, “I want to keep working for you, do you have any suggestions?” A statement such as that will trigger the employer’s duty to find out if there is some job the employee can fill or if there is a reasonable accommodation
Interactive process An informal, interactive discussion between the employer and the individual who needs accommodation after a request has been made. The employer and individual identify the limitations imposed by the disability and available accommodations that would overcome those limitations to enable the employee to perform the essential functions of the job.
Interactive process • Cooperative process • Reasonable and good faith efforts on both sides. • Not necessary to just defer to the employee’s request. • Employer determines if the individual has a disability covered by ADA
Interactive process • Employer makes an individualized determination, based on objective medical or other evidence, of whether a person with a disability poses a direct threat of harm to himself or herself or others, and if so, whether that threat can be removed by reasonable accommodation. • Document the entire process
Privacy The Federal Privacy Act of 1974 forbids employers from revealing facts about an employee’s medical condition with the employee’s consent. HIPAA Be careful how you explain an accommodation. Be careful about passing around get well cards
summary • Recognize discrimination/harassment • Take all complaints seriously • Deal with it – immediately • Document • ADA claims – interactive process a must! • Questions Sharon K. Stull, J.D., SPHR-CA email@example.com