Transgender Discrimination and the Law
March 7, 2018
Court Finds Transgender Discrimination Violates Federal Anti-Bias Law
The 6th Circuit Court of Appeals ruled that employers cannot discriminate against transgender employees without violating Title VII. The appeals court also rejected attempts to claim religious beliefs should shield the employer from such discrimination claims.
1/31/2017 - OFCCP has revised the Disability Self Identification form to include a new expiration date of January 31, 2010 - to obtain a copy of the new form, go to this link (click here) to go to the OFCCP website.
U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification, which became effective on January 22, 2017. Employers may no longer use prior editions of the form and must use the latest version dated 11/14/2016.
Click here for additional information:
Ford Motor Company to Pay up to $10.125 Million To Settle EEOC Harassment Investigation
Blacks and Women Subjected to Harassment at Two Chicago Facilities, Federal Agency Found
CHICAGO - Ford Motor Company has agreed to pay up to $10.125 million to settle sex and race harassment for a group of individuals which was investigated by the U.S. Equal Employment Opportunity Commission (EEOC) at two Ford plants, the federal agency announced today.
In its investigation, the EEOC found reasonable cause to believe that personnel at two Ford facilities in the Chicago area, the Chicago Assembly Plant and the Chicago Stamping Plant, had subjected female and African-American employees to sexual and racial harassment. The EEOC also found that the company retaliated against employees who complained about the harassment or discrimination.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964. Ford chose to voluntarily resolve this issue with the EEOC, without admission of liability, to avoid an extended dispute.
The conciliation agreement provides monetary relief of up to $10.125 million to those who are found eligible through a claims process established by the agreement. The agreement also ensures that during the next five years, Ford will conduct regular training at two of its Chicago-area facilities; continue to disseminate its anti-harassment and anti-discrimination policies and procedures to employees and new hires; report to EEOC regarding complaints of harassment and/or related discrimination; and monitor its workforce regarding issues of alleged sexual or racial harassment and related discrimination.
Federal Court Issues Historic Ruling in EEOC Lawsuit: Civil Rights Act of 1964 Prohibits Sexual Orientation Discrimination
Court Agrees With Federal Agency's Position That Sexual Orientation Discrimination Is a Form of Sex Discrimination Prohibited by Title VII
The U.S. Equal Employment Opportunity Commission (EEOC) announced today that a federal court has denied a motion to dismiss a sex discrimination lawsuit filed by EEOC, ruling that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.
On March 1, EEOC filed the U.S. government's first sex discrimination lawsuit based on sexual orientation, U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB), in U.S. District Court for the Western District of Pennsylvania in Pittsburgh. In its complaint, EEOC charged that a gay male employee was subjected to sex discrimination in the form of harassment because of his sexual orientation and then forced to quit his job rather than endure further harassment. In response to EEOC's lawsuit, the defendant filed a motion to dismiss the case.
In a decision issued on Nov. 4 by U.S. District Judge Cathy Bissoon, the court denied Scott Medical Health Center's motion to dismiss EEOC's case. In its ruling, the court found that sexual orientation discrimination is a type of discrimination "because of sex," which is barred by Title VII. Applying decisions of the U.S. Supreme Court finding that Title VII's ban on sex discrimination includes adverse treatment of workers based on "sex stereotypes," i.e. pre-conceived ideas of how a man or a woman should act or think, the federal court stated, "There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality."
The federal court then concluded, "That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor's view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate." While the federal court made a legal ruling in the case, to date there has been no trial or factual finding whether discrimination occurred.
The court's decision is consistent with EEOC's reading of Title VII's sex discrimination ban. As the federal law enforcement agency charged with interpreting and enforcing Title VII, EEOC has previously concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination. On July 15, 2015, EEOC, in a federal sector decision, determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. See Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015).
In that case, EEOC explained the reasons why Title VII's prohibition of sex discrimination includes discrimination because of sexual orientation: (1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.
EEOC to Collect Summary Pay Data
First Collection Will Be in March 2018
WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) today announced that starting March 2018, it will collect summary employee pay data from certain employers. The new data will improve investigations of possible pay discrimination, which remains a contributing factor to persistent wage gaps. The summary pay data will be added to the annual Employer Information Report or EEO-1 report that is coordinated by the EEOC and the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). OFCCP collects data from federal contractors and subcontractors.
"More than 50 years after pay discrimination became illegal it remains a persistent problem for too many Americans," said EEOC Chair Jenny R. Yang. "Collecting pay data is a significant step forward in addressing discriminatory pay practices. This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal antidiscrimination laws."
"Collecting data is a critical step in delivering on the promise of equal pay," said U.S. Secretary of Labor Thomas E. Perez. "Better data will not only help enforcement agencies do their work, but it helps employers to evaluate their own pay practices to prevent pay discrimination in their workplaces."
EEOC is committed to providing support for employers as they transition to reporting summary pay data on the new EEO-1 report. In response to public comments, the first deadline for the new 2017 EEO-1 report will be March 31, 2018, which gives employers 18 months to prepare. This revision does not impact the 2016 EEO-1 report, which is due on September 30, 2016 and is unchanged.
Private employers including federal contractors and subcontractors with 100 or more employees will report summary pay data. Under no circumstances should employers report individual pay or salaries or any personally identifiable information.
Federal contractors and subcontractors with 50-99 employees will not report summary pay data, but they will continue to report employees by job category as well as by sex, ethnicity, and race as they do now. Employers with 99 or fewer employees and Federal contractors and subcontractors with 49 or fewer employees will not be required to complete the EEO-1 report as is current practice.
The EEOC adopted this new EEO-1 after an extensive deliberative process that included publication of two versions of the proposed EEO-1 for public comment and a public hearing on March 16, 2016, at which stakeholders, researchers, and academics discussed the EEO-1 proposal and responded to questions from EEOC Commissioners. In total, the EEOC considered written comments from thousands of individuals, employers and their representatives, civil rights and women's organizations, human resources and payroll associations, and Members of Congress.
The EEOC does not disclose EEO-1 data for a specific employer; it only publishes large-scale aggregated EEO-1 data in a way that fully protects employer confidentiality and employee privacy. OFCCP holds EEO-1 data for federal contractors and subcontractors confidential to the maximum extent possible under the Freedom of Information Act and the Trade Secrets Act.
EEO-1 Report Due Sept. 30
The Equal Employment Opportunity Commission has completed its mailing of the 2016 EEO-1 Survey notification letters and opened the survey for 2016 reporting.
Private Sector Employers Must Provide Workforce Data to EEOC by Sept. 30 - Go to the EEOC website for additional information: (click below)
VETS-4212 Report Due Sept. 30
Government contractors and subcontractors whose contract meets certain criteria are required to report annually on their affirmative action efforts in employing veterans. The 2016 filing season for the VETS-4212 is open and ends Sept. 30.
June 2016: EEOC Wants You To Know Your Pay Rights
What You Should Know: Equal Pay and the EEOC's Proposal to Collect Pay Data
More than 50 years after pay discrimination became illegal with the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, it remains a persistent problem for too many Americans. In 2016, the Equal Employment Opportunity Commission (EEOC) published a proposal to collect pay data, marking a significant step forward in addressing discriminatory pay practices. This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of federal anti-discrimination laws.
1. What is the EEOC's proposal to collect pay data?
The EEOC, in partnership with the Department of Labor, published a proposal to annually collect summary pay data by gender, race, and ethnicity from employers, including federal contractors, with 100 or more employees.
The EEOC has proposed to revise the Employer Information Report (EEO-1) to collect pay data from employers. For fifty years, EEO-1 data has provided the federal government with workforce profiles from private sector employers by race, ethnicity, sex, and job category. This proposal would add aggregate data on pay and hours worked.
The new pay data would provide the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor with insight into pay disparities across industries and occupations and strengthen federal efforts to combat discrimination. The new pay data also would allow the EEOC to compile and publish aggregated data that will help employers in conducting their own analysis of their pay practices to facilitate voluntary compliance. The agencies would use this pay data to assess complaints of discrimination at the initial stages of an investigation, focus agency investigations, and identify existing pay disparities that may warrant further examination.
In March 2016, the EEOC held a public hearing and heard extensive testimony on the proposal. Stakeholders also had an opportunity to submit written comments for a sixty-day period. After reviewing the testimony and public comments, the EEOC will submit any revisions to the proposal for a second comment period in the summer of 2016 before the proposal is finalized.
2. What are my rights to equal pay under federal law?
Men and women must be paid equal wages if they perform substantially the same work in the same workplace under the Equal Pay Act. "Equal pay" refers to more than just your paycheck. The right to equal pay includes the right to an equal salary, overtime pay, bonuses, stock options, profit sharing, bonus plans, life insurance, vacation and holiday pay, and other forms of pay. Under the Equal Pay Act, unequal compensation cannot be justified unless the employer shows that the pay differential is based on a fair seniority, merit or incentive system, or a factor other than sex.
In addition to the Equal Pay Act, other laws prohibit pay discrimination, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. Under these laws, covered employers may not discriminate in pay, hours, and benefits on the basis of race, color, religion, sex, national origin, age (over 40), disability, or genetic information.
All of these statutes are enforced by the EEOC. Many states and cities have their own fair employment practices agencies that prohibit employment discrimination. Some of these laws cover employers that may not be covered by federal employment discrimination laws, and some cover additional bases such as sexual orientation, marital status, and veteran status.
3. What should I do if I think that I am not being paid fairly?
If you have received a discriminatory paycheck within the last 180 days (or 300 days if the employer is also covered by a state or local employment discrimination law), you can file a discrimination charge with the EEOC. The EEOC will help you to decide what to do next, and conduct an investigation if you decide to file a charge of discrimination. It is illegal for your employer to retaliate against you for contacting the EEOC or filing a charge. For more information, visit https://www.eeoc.gov, call 800-669-4000 (voice) or 800-669-6820 (TTY), or visit your local EEOC office (https://www.eeoc.gov/field/index.cfm for contact information).
July 2016 - Office of Federal Contract Compliance Programs (OFCCP) -
The OFCCP announced a Final Rule that sets forth the requirements that covered contractors must meet under the provisions of Executive Order 11246 that prohibit sex discrimination in employment.
This Final Rule replaces the outdated sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces. The Final Rule deals with a variety of sex-based barriers to equal employment and fair pay, including compensation discrimination, sexual harassment, hostile work environments, a lack of workplace accommodations for pregnant workers, and gender identity and family care-giving discrimination. The effective date of the Final Rule is August 15, 2016.
View the Final Rule, frequently asked questions, fact sheets, and other helpful resources on OFCCP’s Sex Discrimination Rule Web page at http://www.dol.gov/ofccp/sexdiscrimination.html.
The EEOC setttled a sexual orientation case (July 2016) for $202,200, for detailed information on this case, go to: EEOC Press Release
Update: The EEOC continues to require EEO related training in their consent decrees, including sexual harassment.
Does Sexual Harassment Training Really Make a Difference?
By Carol Dawson, CCDP/AP, EEO GUIDANCE, Inc.
At the Society for Human Resource Management (SHRM) conference there was information related to the findings from the U.S. Equal Employment Opportunity Commission’s (EEOC’s) Select Task Force on the Study of Harassment in the Workplace released. In the study, results reveal there may be little to gain from sexual harassment training. What did I just say?!
The EEOC has been quick to follow this up with a caveat. EEOC Commissioner Victoria A. Lipnic stated, “We’re not suggesting throwing out the old; what we want people to understand is that if you are thinking training alone is a panacea to helping out any type of harassment, [it’s not].”
As an Equal Employment Opportunity (EEO) professional trainer and consultant, it may come as a surprise to find that I couldn’t agree more. Sexual harassment or any other form of human resources training is rarely effective if it is a stand-alone effort to curb an unwanted behavior.
Employers must talk the talk and walk the walk. In other words, if you build your EEO program properly, they will trust and follow. Employee conduct will typically be guided by the employer’s actions, predominately from top officials.
One Incident Leads to Another: To begin creating a respectful environment, employers should understand the Dawson EEO theory of “one incident leads to another.”
Within the EEOC’s definition of sexual harassment is this seemingly open invitation to sexually harass one another in the workplace just a tad bit, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”
Therefore, it is fine with the federal government to permit employees to tease and make occasional offhand comments of a sexual nature, correct? The answer would be a resounding, “no.” Remarkably, there are many top officials who participate in occasional teasing and offhand sexual remarks in the workplace. From such actions, managers and employees sense acceptability to make harassing statements as long as they do not rise to the level of being illegal; then one incident leads to another.
There is a gigantic problem with focus on what illegal sexual harassment is not. The example set by top managers and supervision at all levels will open or close the entry portal leading to a respectful working environment. Harassing activity rarely ends with one offhand comment or isolated incident. If it draws laughter or acceptance, it will very likely continue and escalate.
The numbers prove sexual disrespect continues. According to the EEOC’s sexual harassment statistics, the resolutions and settlements for sexual harassment went up from 2014 to 2015. Sexual harassment claims made up 17.1% of all EEO complaints filed in 2015 with monetary benefits of $46K for the victims.
According to a Cosmopolitan survey of over 2K women, 1 in 3 women have been sexually harassed at work. Eighty-one percent stated they have experienced verbal sexual harassment and 44% said they have encountered unwanted touching and sexual advances in the workplace; however, only 29% reported the actions. Educated women are not protected from sexual harassment, as 45% of those who indicated they have been sexually harassed have a bachelor’s degree, 29% have some college, and 19% have a graduate degree.
While employed with the federal government, I was required annually to sit through several mandatory training tapes. The tapes and training rarely changed. The tapes were mundane and boring, they were not specific to the type of work being performed within our agency, and quite frankly, I learned nothing. Most of my colleagues would tell you that they typically worked on another project as the training tape was rolling.
Consider instead, providing face-to-face training that is specific to the industry. Capture the employee’s attention with specific examples of what sexual harassment is and is not. Emphasize the employer’s zero tolerance policy and include the CEO or the highest available official to kick off the training.
The EEOC’s Select Task Force recommends two forms of training to foster a respectful workplace. EEOC’s Commissioner Chai R. Feldblum explained, “What we learned from academics and investigators is that if one does what’s called “workplace civility training”—a very skills-based training on how to be respectful—that can help [employers] avoid harassment on the basis of protected characteristics.”
Include intervention training for employees…a “What Would You Do?” type of instruction, or Change Agent coaching. Change Agent training teaches all employees to step up and step in to defend or stop EEO related harassment. Witnesses taking action can be one of the strongest means of stopping EEO related harassment.
Bottom line: It isn’t that sexual harassment training is unproductive, quite the contrary. Respectful change in a workforce will take place if industry specific ‘Not Boring,’ and interactive training is consistently administered, non-harassment policies are made known to all and consistently enforced, and management is fully and openly on board.
Telling a few people the joke about the woman who…should be stopped now, so the inevitable sequels do not follow.
2014 Clarifications to the Pregnancy Discrimination Act
Listen Up: If you have not reviewed the 2014 interpretation to the Pregnancy Discrimination Act (PDA) before now, I highly recommend that you do. If you think the Act does not require you to make a reasonable effort to accommodate a pregnant employee who needs an accommodation, you are wrong.
If you don't think you have to offer leave to men who want to be off with their new child, again you may be wrong. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose. Check it out (the EEOC even provides some insightful examples of each interpretation): https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm
They have also published this Q and A Clarification: Legal Rights for Pregnant Workers under Federal Law:
Michelle Eisele Appointed Regional Attorney of EEOC's Indianapolis District Office
EEOC: Michelle Eisele, an attorney with the U.S. Equal Employment Opportunity Commission (EEOC), has been appointed regional attorney of the agency's Indianapolis District, which includes offices in Indianapolis, Detroit, Louisville and Cincinnati, the federal agency announced today.
A 1985 graduate of Indiana University School of Law in Bloomington, Eisele began her legal career working for Stephen Goldsmith at the Marion County Prosecutor's Office in Indianapolis and joined EEOC as a trial attorney in 1987. In 1998, she became the supervisory trial attorney of the Indianapolis District Office. She has litigated or supervised many cases during her time with EEOC, recovering millions of dollars for victims of discrimination and obtaining changes to employers' policies and practices to prevent future discriminatory treatment. She has been a frequent speaker regarding EEOC and employment discrimination and has trained EEOC investigators regarding investigative writing, negotiations, systemic discrimination and other issues. She currently serves as the president of the National Employment Lawyers Association's (NELA) Indiana affiliate and is a member of the Employment, Labor & Benefits Law Section Council of the Indiana State Bar Association.
"Ms. Eisele's proven track record and her strong relationships with the plaintiff's bar and non-profit advocacy groups demonstrate her commitment to fighting employment discrimination," said EEOC General Counsel David Lopez. "She has the experience and drive to build upon the district's successful litigation program, which includes cutting-edge litigation that advances the development of the law."
Eisele said, "I am honored to be selected and look forward to leading the district's attorneys and legal unit staff in the ongoing battle against employment discrimination."
EEOC is responsible for enforcing federal laws against employment discrimination. EEOC's Indianapolis District includes Indiana, Kentucky, Michigan and Western Ohio. Further information is available at http://www.eeoc.gov/.
Employer-Provided Leave and the Americans with Disabilities Act
On May 9, 2016, the EEOC released additional guidance relating to when leave must be granted for an ADA accommodation. For the EEOC examples of correct responses to leave as an ADA accommodation, go to: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm?utm_name=#_edn6
Equal Access to Leave Under an Employer's Leave Policy
Employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees. Many employers offer leave -- paid and unpaid -- as an employee benefit. Some employers provide a certain number of paid leave days for employees to use as they wish. Others provide a certain number of paid leave days designated as annual leave, sick leave, or "personal days."
If an employer receives a request for leave for reasons related to a disability and the leave falls within the employer's existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.
Employers are entitled to have policies that require all employees to provide a doctor's note or other documentation to substantiate the need for leave.
Granting Leave as a Reasonable Accommodation
The purpose of the ADA's reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave. As noted above, requests for leave related to disability can often fall under existing employer policies. In those cases, the employer's obligation is to provide persons with disabilities access to those policies on equal terms as similarly situated individuals. That is not the end of an employer's obligation under the ADA though. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer. (See below for a discussion of undue hardship.) That is the case even when:
Reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy. Also, as is the case with all other requests for accommodation, an employer can deny requests for leave when it can show that providing the accommodation would impose an undue hardship on its operations or finances.
An employer may not penalize an employee for using leave as a reasonable accommodation. Doing so would be a violation of the ADA because it would render the leave an ineffective accommodation; it also may constitute retaliation for use of a reasonable accommodation.
Leave and the Interactive Process Generally
Communication after an Employee Requests Leave
As a general rule, the individual with a disability - who has the most knowledge about the need for reasonable accommodation - must inform the employer that an accommodation is needed. When an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA. However, if the request for leave can be addressed by an employer's leave program, the FMLA (or a similar state or local law), or the workers' compensation program, the employer may provide leave under those programs. But, if the leave cannot be granted under any other program, then an employer should promptly engage in an "interactive process" with the employee -- a process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.
The information required by the employer will vary from one employee to another. Sometimes the disability may be obvious; in other situations the employer may need additional information to confirm that the condition is a disability under the ADA. However, most of the focus will be on the following issues:
Depending on the information the employee provides, the employer should consider whether the leave would cause an undue hardship (discussed below).
An employer may obtain information from the employee's health care provider (with the employee's permission) to confirm or to elaborate on information that the employee has provided. Employers may also ask the health care provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave). Information from the health care provider may also assist the employer in determining whether the leave would pose an undue hardship. An employee requesting leave as a reasonable accommodation should respond to questions from an employer as part of the interactive process and work with his or her health care provider to obtain requested medical documentation as quickly as possible.
Communication During Leave and Prior to Return to Work
The interactive process may continue even after an initial request for leave has been granted, particularly if the employee's request did not specify an exact or fairly specific return date, or when the employee requires additional leave beyond that which was originally granted.
An employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it may reach out to an employee on extended leave to check on the employee's progress.
Maximum Leave Policies
The ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.
Types of Maximum Leave Policies
Maximum leave policies (sometimes referred to as "no fault" leave policies) take many different forms. A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both extended and intermittent leave. Other varieties exist though. Some maximum leave policies have caps much higher than 12 weeks. Others, particularly those not covered by the FMLA, set lower overall caps. Employers also frequently implement policies that limit unplanned absences. For example, a policy might permit employees to have no more than five unplanned absences during a 12-month period, after which they will be subject to progressive discipline or termination.
Employees with disabilities are not exempt from these policies as a general rule. However, such policies may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can show that doing so would cause undue hardship.
Communication Issues for Employers with Maximum Leave Policies
Many employers, especially larger ones and those with generous maximum leave policies, may rely on "form letters" to communicate with employees who are nearing the end of leave provided under an employer's leave program. These letters frequently instruct an employee to return to work by a certain date or face termination or other discipline. Employers who use such form letters may wish to modify them to let employees know that if an employee needs additional unpaid leave as a reasonable accommodation for a disability, the employee should ask for it as soon as possible so that the employer may consider whether it can grant an extension without causing undue hardship. If an employer relies on a third party provider to handle lengthy leave programs, including short- and long-term disability leave programs, it should ensure that any automatic form letters generated by these providers comply with the employer's obligations under the ADA.
Employers who handle requests under their regular leave policy separately from requests for leave as a reasonable accommodation should ensure that those responsible communicate with one another to avoid mishandling a request for accommodation. For example, an employer may hire a contractor to handle its long-term disability program, but have its human resources department handle all requests for leave as a reasonable accommodation. The employer should ensure that the contractor is instructed to forward to the human resources department, in a timely manner, any requests for additional leave beyond the maximum period granted under the long-term disability program, and to refrain from terminating the employee until the human resources department has the opportunity to engage in an interactive process. The human resources department should contact the employee as soon as possible to explain that it will be handling the request for additional leave as a reasonable accommodation, and that all further communication from the employee on this issue should be directed to that department.
An employer and employee should continue to communicate about whether the employee is ready to return to work or whether additional leave is necessary. For example, the employee may contact a supervisor, human resources official, or anyone else designated by the employer to handle the leave to provide updates about the employee's ability to return to work (with or without reasonable accommodation), or about any need for additional leave.
If an employee requests additional leave that will exceed an employer's maximum leave policy (whether the leave is a block of time or intermittent), the employer may engage in an interactive process as described above, including obtaining medical documentation specifying the amount of the additional leave needed, the reasons for the additional leave, and why the initial estimate of a return date proved inaccurate. An employer may also request relevant information to assist in determining whether the requested extension will result in an undue hardship.
Return to Work and Reasonable Accommodation (Including Reassignment)
Employees on leave for a disability may request reasonable accommodation in order to return to work. The request may be made by the employee, or it may be made in a doctor's note releasing the employee to return to work with certain restrictions.
100% Healed Policies
An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions -- that is, be "100%" healed or recovered -- if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship. Similarly, an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk but it cannot show that the individual is a "direct threat." Direct threat is the ADA standard for determining whether an employee's disability poses a "significant risk of substantial harm" to self or to others. If an employee's disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.
Issues Related to the Interactive Process and Return to Work
If an employee returns from a leave of absence with restrictions from his or her doctor, the employer may ask why the restrictions are required and how long they may be needed, and it may explore with the employee and his doctor (or other health care professional) possible accommodations that will enable the employee to perform the essential functions of the job consistent with the doctor's recommended limitations. In some situations, there may be more than one way to meet a medical restriction.
If necessary, an employer should initiate the interactive process upon receiving a request for reasonable accommodation from an employee on leave for a disability who wants to return to work (or after receiving a doctor's note outlining work restrictions). Some issues that may need to be explored include:
In some situations, the requested reasonable accommodation will be reassignment to a new job because the disability prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship. The Commission takes the position that if reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions. Reassignment does not include promotion, and generally an employer does not have to place someone in a vacant position as a reasonable accommodation when another employee is entitled to the position under a uniformly-applied seniority system.
When assessing whether to grant leave as a reasonable accommodation, an employer may consider whether the leave would cause an undue hardship. If it would, the employer does not have to grant the leave. Determination of whether providing leave would result in undue hardship may involve consideration of the following:
In many instances an employee (or the employee's doctor) can provide a definitive date on which the employee can return to work (for example, October 1). In some instances, only an approximate date (for example, "sometime during the end of September" or "around October 1") or range of dates (for example, between September 1 and September 30) can be provided. Sometimes, a projected return date or even a range of return dates may need to be modified in light of changed circumstances, such as where an employee's recovery from surgery takes longer than expected. None of these situations will necessarily result in undue hardship, but instead must be evaluated on a case-by-case basis. However, indefinite leave -- meaning that an employee cannot say whether or when she will be able to return to work at all - will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.
In assessing undue hardship on an initial request for leave as a reasonable accommodation or a request for leave beyond that which was originally granted, the employer may take into account leave already taken -- whether pursuant to a workers' compensation program, the FMLA (or similar state or local leave law), an employer's leave program, or leave provided as a reasonable accommodation.
Leave as a reasonable accommodation includes the right to return to the employee's original position. However, if an employer determines that holding open the job will cause an undue hardship, then it must consider whether there are alternatives that permit the employee to complete the leave and return to work.
For examples, provided also by the EEOC, go to: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm?utm_name=#_edn6
EEO GUIDANCE, Inc.
CALL 812-284-2993 or email us: Cdawson@eeoguidance.com
EEO/AA UPDATES YOU NEED TO KNOW