HRCU 648: Legal Issues In Human Resources

Legal Issues within Disability Discrimination
Carin E. Smalley
Legal Issues in Human Resources HRCU 648
Benedict Lastimado
October 22, 2013

Introduction Within my company, we have an employee that committed what our company terms a “Class A” violation this past summer of 2013. Typically, a violation of this type would be punishable by termination. Because this employee was covered by a workman’s compensation injury and was working modified/light duty at the time of this violation, however, the employee attempted to defend his actions by claiming that because he was being weaned off of the narcotic pain medication that he had been taking to deal with the pain from his work injury, he was temporarily disabled and should
be exempted from typical consequence. Upon review, a Human Resources (HR) manager above me chose not render an official decision, but instead said that she would support our store’s decision to either terminate the employee or to be lenient and merely advance the employee to final-step written documentation that would only put him on a “final notice”. The initial inclination of my Business Partner (Store Manager) and myself was to terminate this employee, but we felt a stronger pressure from HR to take the lenient stance to afford the employee one more chance. Ultimately, we did not terminate this employee. The decision that we made has bothered me because I feel that our company did not take a strong enough stance toward this employee’s reprehensible behavior due to fear of possible legal action. In making this decision, we set a precedent of weak discipline and of not adequately backing junior-level store management. We chose to make the decision that we did because of a collective fear of losing an imagined case and because we lacked understanding of the disability discrimination process.
ADA, ADAA & Discrimination The American’s with Disabilities Act (ADA) was passed in 1990 and the American’s with Disabilities Amendments Act (ADAAA) was signed into law in 2008. In passing the ADA, Congress intended to adopt a definition of disability in order to end discrimination against people with disabilities. (Pierre-Louis, 2013) The process for the ADA was to define if an individual possessed what could be considered a disability and then to establish if the person was otherwise qualified for a job if the disability was not a factor – if it could be accommodated so that the essential functions of a job could be performed. Per the ADA, a disability is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of an individual; a record of such an impairment; or being regarded as having such an impairment.” (Pierre-Louis, p.S-1, 2013) When the ADAAA was signed into law in 2008, it “prohibits discrimination or retaliation against a person with a disability by an employer.” (Bennett & Randolph, p.3, 2013) Forms of disability discrimination include: discriminatory testing/standards/selection criteria, limiting/segregating/classifying candidates based on disability status, offering less/different benefits to individuals who are disabled, not providing reasonable accommodations, and requiring non-essential medical examinations that are unrelated to the work. Additionally, the ADAAA law has no formal requirement that the individual considered for disability possess a formal diagnosis. (N.C. Lawyers Weekly, 2013) As considered under the ADAAA, almost anyone with any form of mental or physical limitation will be regarded as disabled. Disabilities that are considered to be “under control” and intermittent in nature are also covered i.e.: asthma, cancer, and epilepsy. In fact, the only conditions that were excluded from consideration in the ADA are: transsexuals, exhibitionists, transvestites, pedophiles, and voyeurs. (Francyne, 2013)
Interactive Process According to the ADAAA, an employee or an applicant possessing essential qualifications is entitled to request an accommodation. Upon receiving the request, an employer will then participate in an interactive process with the applicant to identify if there is a reasonable accommodation that can be made. It is typically the employee’s/applicant’s place to make the employer aware that an accommodation is needed unless the “need for accommodation is obvious to the employer” (Bennett & Randolph, p.11, 2011). Additionally in cases of mental disabilities, it is common that, either the individual with a mental impairment may hesitate to request an accommodation for fear of perception and treatment and being set apart by others or simply because, due to the impairment, they are not capable. In this instance, if it is apparent that an employee may be in need of an accommodation, an employer should endeavor to extend an offer of assistance. (Pierre-Louis, 2013) Under the rules of the ADAAA, the determination as to whether the accommodation can be made and the type of accommodation is ultimately the employer’s - unless the accommodation would constitute an undue hardship upon the employer. (Francyne, 2013) During the interactive process, employers must only consider modifications toward the essential functions required to do the job in question. Essential functions are the necessary duties of the position in question that are absolutely required by the position. Essential (primary) functions of the job are set apart from secondary job functions that are ancillary to the essential functions. Ancillary requirements may be performed by the person in the position, but are not required. To ensure that organizations minimize their liability in the event of a claim, it is suggested that organizations regularly audit all active job descriptions for accuracy. Once the job descriptions have been audited, it is also a recommended practice for job incumbents to be made aware of and sign the amended job descriptions so that, in the event that and accommodation is requested, the amended job description is the benchmark of the process. Once an accommodation is requested, it is also highly recommended that, rather than spending extended amounts of time over-analyzing the proposal or dismissing it due to perceived expense or feasibility, a test run of the accommodation is attempted as an act of participating in the interactive process in good faith on the part of the employer. (Bennett & Randolph, 2011)
Reasonable Accommodation Employees and applicants for consideration of an accommodation “must have an actual impairment that substantially limits one or more major life activities or a record of such impairment.” (Dwoskin & Squire, p.4, 2013) As to the question of Reasonable, it is prudent of an employer to ask if themselves if: an accommodation can effectively resolve the disability and if the accommodation would allow a disabled individual to reach a performance level the same as an employee who is not considered to be disabled. Considerations of reasonable accommodations include but are not limited to: job restructure, changes to shift, changes to scheduled times, possible reassignment of the disabled employee into a vacant position, leave, modified workplace policies, and providing interpreters/helpers or equipment to help complete the essential functions. In consideration of restructuring a job, an employer must evaluate which job functions are considered essential and which functions are considered marginal. When allocating tasks to be considered as either essential/marginal, consideration is given to the amount of time spent on the function and the consequences of not completing the function, terms included in any collective bargaining agreements, experiences of past employees who have held this position, and relevant experiences of employees currently holding this position. It should also be noted that while courts consider an employer’s evaluation of essential functions to be valuable proof, it is not absolute proof that a function will be regarded as essential. (Dwoskin & Squire, 2013) If I’d have known this past summer what I understand now about the ADAAA and disability discrimination process, I would have tabled a decision about terminating/disciplining my erring employee who chose to verbally abuse his supervisor and obtain the opinion of a qualified Independent Medical Examiner as to whether he really was temporarily qualified to be considered disabled when he chose his actions against management.
When the ADA began, it was intended to protect those with disabling conditions from being held out of employment based on the functions that they could not do related to their disability. When the ADA was tested in court, however, the courts ended up stalling the process of accommodation by spending most of their time deciding if someone could actually be deemed disabled or not relative to their condition. With the amendments to the ADA, the focus has been redirected onto the process of reasonable accommodation and attempting to remove the barriers that hold the disabled out of
employment.
References
Bennett, A., & Randolph, S.
E. (2011). Is everyone disabled under the ADA? An analysis of the recent amendments and guidance for employers. Employee Relations Law Journal, (4). 3. Retrieved from: http://libproxy.chapman.edu
Dwoskin, L. B., & Squire, M. (2013). Reasonable accommodation under the new ADA: how far must employers go?. Employee Relations Law Journal, (4). 3. Retrieved from: http://libproxy.chapman.edu
Francyne, S. (2013) Commentary: ADA/AADAA/EEOC = OMG!. Michigan Lawyers Weekly, [serial online]. Available from: Academic OneFile, Ipswich, MA. Retrieved from: http://libproxy.chapman.edu
Pierre-Louis, M.E., (2013) Accommodating Employees With Mental Illnesses Under the ADAAA. HR Focus, 90(4), S-1-S-4. Retrieved from: http://libproxy.chapman.edu
U.S. District Court Eastern District of N.C. Case Summaries: April 19, 2013. (2013, April 19). North Carolina Lawyers Weekly. Retrieved from:
http://libproxy.chapman.edu