Thursday, July 2, 2015

Good Enough Accommodation Sufficient Under ADA

The Second Circuit Court of Appeals has ruled that the “most effective” accommodation is not necessary for an employer to meet its obligations under the Americans with Disabilities Act (“ADA”).

In the case before it, Alfred Noll was a deaf software engineer working at IBM. The company provided him with a sign language interpreter, internet-based real-time transcriptions and video relay services to help him do his job. However, Mr. Noll complained that there was a delay in his receipt of transcripts and lack of on-screen translation of videos. He asked for an intranet video with captions and transcripts for all audio files. IBM refused these accommodations. Mr. Noll sued for failure to accommodate, a form of disability discrimination.

Mr. Noll lost at the district court level and on appeal. He argued that there was a factual dispute over the effectiveness of IBM’s accommodations. Rejecting Mr. Noll’s argument, the Second Circuit found that the ADA only requires an effective accommodation. IBM was not required to provide the best accommodation. Further, no dispute was shown as to whether the accommodations provided worked; Noll only challenged the speed and convenience of the translation services provided. Finally, the court concluded that the ADA did not impose any liability on IBM for failing to further discuss accommodations with Mr. Noll when he was already being given reasonable accommodations.

Wednesday, July 1, 2015

Case to Watch: Cutting Hours to Avoid ACA Obligations

A new case was recently filed by a possible class of 10,000 employees against their employer, Dave & Buster’s. It is believed to be the first of its kind. The reason for the lawsuit: Dave & Buster’s reduced the hours of its employees so that it would not have to provide health care benefits to them under the Affordable Care Act.

The Affordable Care Act generally obligates large employers to offer affordable health care coverage to their full-time employees (employees who regularly work on average at least 30 hours per week.) It has been observed that many employers changed the status of their employees from full-time to part-time once the ACA went into effect.

It is unclear whether these deliberate changes in status will be considered illegal. This Dave & Buster case relies on §510 of the Employee Retirement Income Security Act (“ERISA”) as the basis for arguing it is illegal. That section “prohibits employers and plan sponsors from interfering with an employee’s attainment of benefits.”  Whether this ERISA section will prevent employers from reducing work hours for employees’ remains to be seen but one court in New York will soon decide.

Tuesday, June 30, 2015

Boss Stressing You Out Is Not Disability

A California woman reported to her doctor that she was anxious because of what was going on at work. Specifically, interactions with human resources and her manager were causing her stress. The doctor diagnosed her with “adjustment disorder and anxiety.” Her employer, Sutter Medical Foundation, granted her stress-related disability leave under the federal Family and Medical Leave Act (“FMLA”) and California’s parallel statute the CFRA.

The woman took her full amount of leave and then returned to her job. Upon her return, she received a bad performance review from her supervisor. She complained that she was being singled out and given a disproportionate amount of work. The regional manager then purportedly grabbed her arm and yelled at her. She suffered a panic attack, left work and never returned. Sutter gave her a leave of absence to accommodate her “disability.” For the next five months, the woman, with a variety of doctor’s notes, tried to have herself reassigned to a different supervisor and finally was “willing to try” working under her old manager. She was fired.

The California Appellate court rejected her claim for disability discrimination. It held that an employee’s inability to work for a particular supervisor because of anxiety based on the supervisor’s standard of supervision is not a disability. She took all of her leave and Sutter had a legitimate business reason for terminating her.

Tuesday, June 23, 2015

No Quick Fix for Workplace Harassment, Social Scientists Tell EEOC Task Force at Open Meeting

The U.S. Equal Employment Opportunity Commission's Select Task Force on Workplace Harassment (STF) held at a public meeting last week and included input from social scientists concluding that there is no one magic bullet to stop workplace harassment or prevent its occurrence and the efficacy of solutions such as training varies widely.

It is well known that "harassment is pervasive, damaging to individuals, and costly to organizations, but what are its causes?" asked Dr. Mindy Bergman, Associate Professor of Psychology, Texas A&M University.  "One of the most important [factors] is organizational climate. When an organization is more tolerant of harassing behavior, more harassing behavior occurs."

In its press release, the EEOC indicated that while training is a common response to the problem of workplace harassment, its ability to solve the problem is not uniform, noted Dr. Eden King, Professor of Psychology at George Mason University. However, training which is live, rather than done on a computer, lasts more than four hours and includes role-playing that puts the trainee in the place of a stigmatized co-worker, when combined with specific goal setting by a mentor or supervisor, can have the greatest effect, her research has showed.

Title IX Turns 43 Today

Title IX, a groundbreaking statute intended to end sex discrimination in education, became the law of the land on June 23, 1972. Most famous for its requirement that schools provide girls with equal athletic opportunities, the law applies to all educational programs that receive federal funding, and to all aspects of a school's educational system – including as a powerful tool for students who want to combat sexual harassment and sexual assault, including rape, at school and on college campuses.

The number of college sexual violence complaints submitted to the Department of Education has skyrocketed during the last five years according to the the Office on Civil Rights. Data released to the U.S. Senate in May of 2015 show the number of sexual violence complaints at colleges and universities increased from nine in fiscal year 2009 to 102 in fiscal year 2014 – a jump of more than 1,000 percent. Meanwhile, the average length of time it takes the office to investigate cases that result in "substantive closures" – as opposed to those resulting in "findings of no violation or insufficient evidence," or another outcome – more than tripled, from 379 days to 1,469 days.

"These figures still don’t reflect even conservative estimates of the actual incidence of sexual assault and rape on campuses, and still the Department of Education lacks the resources to promptly investigate the few complaints against schools that are filed," New York Senator Kristen Gillibrand said in a statement. "This data is the latest example of why we need to flip the incentives so that schools properly address the problem of sexual assault on their campuses, and make sure the Department of Education has the funding it needs to enforce the laws, review complaints and help prevent campus sexual assault."

President Barack Obama in his 2016 budget proposal requested increasing funding for the Office for Civil rights to $131 million, which would allow the office to hire an additional 210 full-time staff members.