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FAQ: Discrimination

Discrimination

Disability Discrimination

  • If a person has a disability, but there is no impact on the job and no request for accommodation, what, if anything, should employers be concerned about?

    If a disability has no impact on an employee’s ability to perform the job, then an employer has no obligation under the Americans with Disabilities Act (ADA) or the California FEHA to make a reasonable accommodation. But even in this situation, employers should be alert to other issues that could arise, such as harassment or discrimination. For example, it would be illegal for a manager to exclude the disabled employee from certain activities because the manager is uncomfortable with the disability, or to terminate an employee because the manager assumes that the employee will not be able to perform the job.

  • Is an employer required to provide the specific reasonable accommodation that an individual requests?

    No. As the EEOC has stated, the employer may choose among reasonable accommodations as long as the chosen accommodation is effective. For example: An employee with a severe learning disability has great difficulty reading. His supervisor sends him many detailed memoranda which the employee often has trouble understanding. However, he has no difficulty understanding oral communication. The employee requests that the employer install a computer with speech output and that his supervisor send all memoranda through electronic mail which the computer can then read to him. The employer asks whether a tape recorded message would accomplish the same objective and the employee agrees that it would. Since both accommodations are effective, the employer may choose to provide the supervisor and employee with a tape recorder so that the supervisor can record her memoranda and the employee can listen to them.

  • Are there any length or hours of service requirements an employee must fulfill to be eligible for a leave or other accommodation under the ADA?

    No. An employee is protected by the ADA if the employer has 15 or more employees, and California employees are also protected by the FEHA if their employer has five or more employees, regardless of the employee’s length of service or hours worked.

  • May someone other than the disabled employee request a reasonable accommodation on the employee's behalf?

    Yes. A family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an employee with a disability. For example, if a disabled employee’s doctor sends the employer a letter stating that the employee may perform the job but with certain work restrictions, the letter would constitute a request for reasonable accommodation. Similarly, if an employee’s spouse calls the employee’s supervisor to inform her that the employee had a medical emergency due to a disability, needed to be hospitalized, and thus requires time off, this discussion would constitute a request for reasonable accommodation.

  • Does the reasonable accommodation obligation require the employer to create a job if there are no available positions that a disabled employee can perform?

    No, the reasonable accommodation obligation does not require an employer to create a new position for a disabled employee — it is sufficient to explore transferring the employee to a vacant position. Vacant means that the position is available when the employee asks for a reasonable accommodation, or the employer knows that the position will become available within a reasonable amount of time.

  • In considering reasonable accommodations, can an employer refuse to reassign an employee or change an employee's shifts because doing so would violate the rules of a seniority system?

    The EEOC’s position is that, generally, it is “unreasonable” to reassign an employee with a disability if doing so would violate the rules of a seniority system. This is true both for collectively bargained seniority systems and those unilaterally imposed by management. Seniority systems governing job placement and shifts give employees expectations of consistent, uniform treatment — expectations that would be undermined if employers deviated from the seniority system to accommodate a disabled employee. The EEOC notes, however, that if there are “special circumstances” that undermine the employees’ expectations of consistent, uniform treatment, it may be a reasonable accommodation, absent undue hardship, to reassign a disabled employee despite the existence of a seniority system. For example, special circumstances may exist where an employer retains the right to alter the seniority system unilaterally and has exercised that right fairly frequently, thereby lowering employee expectations in the seniority system. In this situation, one more exception (i.e., providing the reassignment to a disabled employee) may not make a difference. Another possibility is that a seniority system might contain procedures for making exceptions, thus suggesting that seniority does not automatically guarantee access to a specific job.

  • Must an employer change an employee's supervisor as a form of reasonable accommodation?

    No. The ADA does not require an employer to provide an employee with a new supervisor as a reasonable accommodation. On the other hand, the ADA may require an employer to alter supervisor methods — for example, communicating instructions in writing rather than orally, or having the supervisor give three days notice, instead of one, of upcoming team meetings — as a form of reasonable accommodation.

  • What are an employer's obligations to offer light-duty jobs to an employee who is disabled by a non-occupational injury or illness?

    Just as employers are not required under the ADA to create new positions, the ADA also does not require employers to create light-duty positions for non-occupationally disabled employees. This is true even if the employer creates light-duty positions for employees with occupational injuries. On the other hand, if the employer reserves light-duty positions for employees with occupational injuries, the ADA does require the employer to consider reassigning an employee with a disability that is not occupationally related to that position as a reasonable accommodation, if the employee is unable to perform the essential functions of his or her regular job and there is no other effective accommodation available.

  • Does granting a leave of absence as a reasonable accommodation under the ada include intermittent leave?

    Yes, granting an intermittent leave of absence could be a reasonable accommodation under the ADA or the California FEHA, absent undue hardship to the employer. In addition, an employee may be entitled to intermittent leave under federal and state family and medical leave laws.

  • If an employee requests a leave as a reasonable accommodation but a job transfer or other accommodation would permit the employee to remain on the job instead, does the employer have to grant the leave?

    When an employee requests a leave of absence as a reasonable accommodation, the employer can choose to provide an accommodation that requires the employee to remain on the job instead, provided the employer’s proposed accommodation would be effective and eliminate the need for leave. Keep in mind, however, that if the employee requests and is eligible for a leave of absence under the Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA), the employer cannot deny a FMLA/CFRA-covered leave.

  • When an employee returns from an ADA leave of absence, does he or she have a right to be returned to the same shift?

    It depends. Under the ADA, an employee returning from a leave must be reinstated to the same position the person held prior to the commencement of the leave, absent undue hardship. Depending on the circumstances, a change in shift — for example, a day shift worker being reinstated to the night shift following a leave — could alter the nature of the job such that it would not be considered the same.

  • If employees cannot return to work after six months of disability leave, is the employer obligated to keep those employees "on the books" even though the employer's policies offer a maximum of six months of leave?

    It depends. Generally, modifying workplace policies, including leave policies, is a form of reasonable accommodation that employers should explore. Therefore, if an employee with a disability requires additional unpaid leave as a reasonable accommodation, the employer must modify a leave policy that caps the amount of leave in order to provide the employee with additional leave, unless the employer can show that: 1) there is another effective accommodation that would enable the employee to perform the essential functions of the position; or 2) granting additional leave would cause an undue hardship to the employer.

  • If a disabled employee does not return to work at the end of a fmla/cfra-protected medical leave, can we terminate the employee?

    It depends. When a disabled employee has exhausted leave under the FMLA/CFRA, the employee could be entitled to additional leave time as a reasonable accommodation. In that case, the employer would run afoul of the disability bias laws by terminating the employee without exploring the need for a longer leave of absence or other reasonable accommodation.

  • May an employer tell a disabled employee's coworkers that the employee is receiving a reasonable accommodation?

    No. An employer may not disclose to coworkers that an employee is receiving a reasonable accommodation because this usually amounts to a disclosure that the individual has a disability. In particular, the ADA specifically prohibits the disclosure of medical information except in certain limited situations, such as to supervisors and managers who need to know the necessary restrictions on the employee’s duties and necessary accommodations.

    The EEOC advises that if a coworker questions why an employee is receiving what is perceived as “different” or “special” treatment the employer may certainly respond by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal and that, in these circumstances, it is the employer’s policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the individual asking the question that his/her privacy would similarly be respected if s/he found it necessary to ask for some kind of workplace change for personal reasons. It is imperative that managers be trained about how to respond to such questions because it is reasonable to assume they may be asked questions by an employee’s coworkers.

  • Must an employer accommodate an employee suffering from alcoholism by allowing the employee to come in late to work due to his drinking the night before and resulting hangover?

    No. The ADA does not require an employer to provide an accommodation that simply enables the individual’s alcohol addiction. So, for example, an employer need not provide a schedule to accommodate weekend drinking. Similarly, employers may enforce rules concerning alcohol in the workplace. The ADA specifically permits employers to take the following actions: (1) prohibit the use of alcohol in the workplace; (2) require that employees not be under the influence of alcohol in the workplace; and (3) hold an employee with alcoholism to the same standards for employment or job performance and behavior to which the employer holds other employees, even if unsatisfactory performance or behavior is related to the alcoholism.

  • Does the ADA cover a person who is illegally using drugs?

    Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Thus, an employer will not violate the ADA by uniformly enforcing its rules prohibiting employees from illegally using drugs. However, an individual who no longer engages in the illegal use of drugs could meet the definition of having a “disability” if s/he: (1) has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully; or (2) is participating in a supervised rehabilitation program (e.g. alcoholics or narcotics anonymous). Assuming a recovering addict is protected by the ADA (i.e., he is not currently using drugs), he may be entitled to a reasonable accommodation, such as time off to attend counseling meetings or appointments.

Gender Identity

  • Are California employers required to have unisex restrooms to avoid discrimination on the basis of gender identity?

    No. While the California FEHA bars discrimination on the basis of gender identity, this provision does not mandate that employers designate a “unisex” restroom that can be used by employees of either gender. However, an employer is required to permit an employee to use the restroom of the gender with which the employee identifies. Note that even if an employer has a unisex restroom, a transgender employee would still be entitled to use the single sex restroom associated with his or her gender identity.

Religious Discrimination

  • Can employees dealing with the public be prohibited from having facial piercings, or would the prohibition amount to religious discrimination?

    It depends. A policy prohibiting employees from wearing facial piercings when dealing with the public or customers can raise religious issues. Courts will generally uphold reasonable dress and grooming standards that are related to the job in question and grounded in safety, efficiency or other business concerns. However, when those standards conflict with employees’ religious beliefs or practices, employers should proceed carefully. If an employee claims her piercings are related to her religion, an employer should take the time to work with the employee to determine whether there is a reasonable accommodation for the employee’s religious beliefs/practices. An employer may be liable unless it can demonstrate that making an accommodation/exception from the policy would pose an undue hardship for the employer. Employers should keep in mind that the undue hardship standard is high and difficult to demonstrate.

  • If we grant an employee a day off for religious reasons and, as a result, another employee who has more seniority must work that day, does that amount to an undue hardship such that we could refuse the time off request?

    It depends. A proposed religious accommodation will pose an undue hardship if it would deprive another employee of a job preference or other benefit that is guaranteed by a bona fide seniority system or collective bargaining agreement. The fact that there is a seniority system in place does not relieve the employer of the duty to explore a reasonable accommodation of the employee’s religious beliefs/practices. But the issue, ultimately, is whether an accommodation can be provided without violating the seniority system. The EEOC advises that often an employer can allow co-workers to volunteer to substitute or swap shifts as an accommodation to address a scheduling need without violating a seniority system or collective bargaining agreement.

  • Would it be problematic to ban employees from using religious taglines on emails, such as "have a blessed day"?

    Employers do have some ability to restrict religious speech in the workplace. However, before issuing a prohibition, it is important to consider whether the speech poses an undue hardship for the employer – for example, by evaluating the potential disruption, if any, that will be posed by permitting the expression. In one case, a federal appeals court found that an employer did not violate federal law by prohibiting an employee from using the greeting “Have a blessed day” in written correspondence to customers, where the employer generally prohibited employees from using religious, personal or political statements in closing written or oral communications with customers or fellow employees and accommodated the employee by permitting her to continue using “Have a blessed day” in conversation with co-workers.

Employee Releases of Discrimination Claims

  • Can an employee be required to waive the right to file a charge of discrimination as a condition of receiving severance pay?

    No. According to the EEOC, an employee cannot be required to sign a release waiving his or her right to file a discrimination charge with the EEOC as a condition of receiving severance pay. Similarly, employees cannot be required to waive the right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC. Any provision in a severance or separation agreement that attempts to waive these rights is invalid and unenforceable.

  • To obtain waivers of age discrimination claims in connection with a group termination, how many employees must be involved for it to be considered a group termination?

    The Older Workers Benefit Protection Act (OWBPA) establishes specific requirements for a release of Age Discrimination in Employment Act (ADEA) claims to be valid and legally enforceable for employees age 40 and over. If the termination is in connection with an exit incentive or other employment termination “program” to two or more employees, there are some additional requirements. In particular, employees must be given 45 days to consider the release, and the employer must provide employees with the following information: job titles and ages (but not names) of affected and unaffected employees considered for the program; eligibility criteria for the program; applicable time limitations for considering the severance offer; and requirements of the plan.

    A “program” exists when you offer two or more employees additional consideration (money or benefits, for example) for signing a waiver pursuant to an exit incentive or other employment termination. Typically, an involuntary termination program is a standardized formula or package of benefits that is available to two or more employees, while an exit incentive program is a standardized formula or package of benefits designed to induce employees to sever their employment voluntarily. In both cases, the terms of the programs are not generally subject to negotiation between the parties.

  • If we are conducting a group termination, but none of the impacted employees is age 40 or older, do we need to provide the information required by the OWBPA?

    No. Because only employees who are at least 40 years old may bring claims under the ADEA, the OWBPA information must only be provided to employees age 40 and older. Thus, if the group termination does not include any employee age 40 or older, then an employer need not provide the OWBPA information to the employees selected for the group termination since none of the affected employees are protected by the ADEA. Let’s say, however, that you have selected 20 employees for layoff pursuant to a group termination program that offers additional compensation in exchange for a complete release, and only one of the employees included in the program is over age 40. If you want that one older employee to release his potential federal age discrimination claims, you must provide the required OWBPA information to that employee only. If, however, you do not wish to have that sole employee release his federal age claims, you need not provide the data.

Miscellaneous

  • In California, how long does a former employee have to file a discrimination claim?

    Federal and state anti-discrimination laws give employees a limited amount of time to file an administrative charge of discrimination, a prerequisite for filing a lawsuit alleging statutory claims of discrimination. In California, an administrative complaint of employment discrimination under the California Fair Employment and Housing Act (FEHA) must be filed no later than one year from the date that the alleged discriminatory act occurred. In other states, the limitations period may be different. Also, if an employee chooses to file an administrative complaint directly with the U.S. Equal Employment Opportunity Commission (EEOC), the employee must do so within 180 calendar days from the date the alleged discrimination took place, or 300 calendar days if a state (like California) or local agency enforces a law that prohibits employment discrimination on the same basis. Employees have one year after receiving administrative right to sue letters to file lawsuits alleging statutory claims of discrimination.

  • I understand that it is important to select employees carefully for telecommuting assignments, to make sure they are the type of person who can work independently. But won't that lead to treating employees differently, i.e. discrimination?

    Employers are entitled to select employees for job assignments (including telecommuting assignments) based on their various strengths, and the practice in and of itself does not run afoul of state and federal anti-bias laws. Where employers can run into trouble, however, is when a selection decision is based in whole or in part on an impermissible factor, such as race, gender or disability. To avoid potential claims of unlawful discrimination in doling out telecommuting privileges, employers should make sure they can identify and articulate legitimate, non-discriminatory criteria supporting their reasons for entrusting certain employees with those privileges.

For additional information, check out the types of discrimination described by the EEOC.

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