Bourgon HR Blog: HR Advice & Outsourcing Tips for Small Companies

Telecommuting Under the ADA – Common Sense Can Apply

Posted on Tue, Jul 21, 2015

In late spring 2015 the Federal Court of Appeals for the 6th Circuit issued an opinion in Equal Employment Opportunity Commission v. Ford Motor Company.

The EEOC sued Ford under the ADA alleging that it had failed to reasonably accommodate an employee who had a disability when it denied her request to work from home up to four days a week on an as needed basis.

Ford made the determination that the employee’s accommodation request was unreasonable because she could not effectively perform an essential function of her job while working remotely.

The essential function that was a critical aspect of her position required face-to-face interactions with customers, clients and work colleagues, a job function which could not be performed effectively while working remotely at home. The EEOC attempted to argue that in-person communications were not essential to the effective performance of the employee’s job. The Federal Appeals Court opinion reaffirms many legal principles that are fundamental to the administration and enforcement of the ADA.

The opinion’s key holdings include:

  • The general rule is that regularly attending work on-site is essential to most jobs, and that employees who do not come to work usually cannot perform their job functions – essential or otherwise: “Regular, in-person attendance is an essential function – and a prerequisite to essential functions – of most jobs, especially interactive ones.”
  • The employee here was NOT a qualified individual under the ADA because her excessive absences prevented her from performing the essential functions of her job as a resale buyer. This, attendance is required before a duty to accommodate arises.
  • An employee’s opinion as to what job functions are essential does not create a genuine dispute of fact.
  • An employer’s judgment as to essential job functions is controlling if it is job-related, uniformly enforced, and consistent with business necessity.
  • The determination of whether telecommuting is a reasonable accommodation requires a fact-specific analysis.
  • That an employer has a telecommuting policy and allows employees without a disability to telecommute does not require that it would allow all people with a disability to do the same if working remotely will not allow them to perform the essential functions of their jobs.

Tags: employment discrimination

Criminal Records and HR Employment Decisions

Posted on Thu, Jul 12, 2012

Are you making the right employment considerations under Title VII of the Civil Rights Act of 1964?

eeoc and arrest records

On April 25, 2012, the EEOC issued enforcement guidance on the consideration of arrest and conviction records. The bottom line is that an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

The guidance builds on longstanding court decisions and existing guidance documents that the EEOC issued over twenty years ago. The guidance focuses on employment discrimination based on race and national origin.

The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion from consideration of a potential employee based on an arrest is not, in itself, “job-related and consistent with business necessity.” This is the standard the EEOC applies to exclusionary processes and procedures. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.

In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in a particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The EEOC guidance discusses disparate treatment and disparate impact analysis under Title VII. A disparate treatment violation may occur when an employer treats criminal history information differently for different applicants or employees based on their race or national origin. Contrarily, an employer’s neutral policy (e.g. excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals. These would be individuals protected under Title VII and may violate the law if not job-related and consistent with business necessity. This is what is known as disparate impact liability.

According to the EEOC, national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the EEOC to investigate Title VII disparate impact charges challenging criminal record exclusions. However, there are two circumstances in which the EEOC believes employers will consistently meet the “job-related and consistent with business necessity” defense.

The first circumstance would involve an employer validating the criminal conduct exclusion for the position in question in light of “the uniform guidelines on employee selection procedures” (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors).

The second circumstance involves an employer who develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen to determine if the policy is applied as job-related and consistent with business necessity. According to the EEOC, although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.

This guidance is in large part based on the growing practice of employers nationally to perform background checks on all potential hires. Employers are often excluding employees for any type of arrest record, especially given the large number of applicants. Employers are advised to exclude cautiously because the guidance is the indication that the EEOC will step up its enforcement, and that members of the public going to plaintiff’s attorneys may find that this is a basis for a successful EEOC claim of disparate treatment liability. For a larger employer, there is concern of the disparate impact liability where there is a pattern or practice involving multiple applicants who may bring a consolidated class action. Even without a consolidated class action, the EEOC will sometimes enforce its rules and look for discrimination on a multiple applicant basis, where information is available to them.

Let Bourgon HR Solutions develop a compliant policy and practice for you. Please contact us.

Tags: employment discrimination

Barrett and the Potential for Employment Discrimination Lawsuits

Posted on Mon, Nov 21, 2011
employee discrimination

Title VII of the Civil Rights Act prohibits employment discrimination “because of such individual’s race, color, religion, sex or national origin.” But in light of Title VII’s broad remedial purpose of ending discrimination in the workplace, courts increasingly have construed this provision to protect employees from discrimination based on their associations with and advocacy for individuals of a different race.

In these cases, courts have reasoned that this discrimination is based on “such individual’s race” because the cause of the discrimination is the difference in races between the employee and the protected third party.

While courts generally agree that these associational discrimination claims may be brought on the basis of interracial spousal, romantic or familial relationships, courts are split over whether and to what extent arguably less significant relationships such as friendships or co-worker relationships support such claims. Many courts require a more finite degree of association than mere friendship or collegiality within the workplace.

But not with the federal Sixth Circuit Court of Appeals. In Barrett et al v. Whirlpool Corporation, the Sixth Circuit joined the Seventh Circuit and announced that the degree of the association is irrelevant to whether a plaintiff is eligible for the protection of Title VII under an associational discrimination theory.

As a result of Barrett, the class of potentially protected employees has expanded for employment discrimination lawsuits. Employers should remain mindful that white employees, as well as non-white employees, may bring discrimination and retaliation claims under Title VII.

Employers should alert supervisors to pay attention to workplace comments regarding interracial relationships and reporting behavior in particular. Employers should also train supervisors to take appropriate corrective action when these comments are brought to their attention.

With its decision in Barrett, the Sixth Circuit will potentially open the door to many more association-based discrimination claims. However, in doing so, the Court carefully limited the evidence relevant to such claims to only those remarks that attack the interracial nature of the relationship itself, as opposed to the race of the plaintiff or of the plaintiff’s spouse, child, friend or co-worker.

Thus, although this Court’s decision arguably expanded the protection of Title VII, its judicious analysis ensures that associational discrimination claims will remain moored to Title VII’s stated purpose of eliminating discrimination in the workplace “because of such individual’s race.”

Tags: employment discrimination

Increase in Age-Based Employment Discrimination Lawsuits

Posted on Wed, Oct 26, 2011

With discrimination claims continuing to rise as aging employees are claiming unlawful termination of employment, employers are taking a long look at their policies and training programs.

aging emploment discriminationPreventing age discrimination in the workplace requires not only that strong HR policies and training programs are in place but also that employees know and understand the rules, particularly in these continually troubled economic times.

“We’re seeing an increase in age discrimination claims because of the volume of reductions in force that are occurring throughout the country,” said Janine Yancey, HR Lawyer and CEO of Emtrain. “Any different group can make a claim that they are adversely affected by reductions in the workforce, but there do seem to be more age discrimination claims than others, in large part due to age being associated with disproportionately higher salaries.”

It is time to update diversity programs. HR says it’s a difficult challenge to balance three to four culturally different generations in today’s workplace.

“HR needs to issue policies in a way that whatever they are saying within the organization will not have a disproportionate effect on older workers,” says Yancey. “Although diversity programs may already exist in an organization, they should be updated to include generational diversity.”

Tags: employment discrimination