Employment Practices liability When bad thIngs happen to good schools

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EMPLOYMENT PRACTICES LIABILITY

WHEN BAD THINGS HAPPEN TO GOOD SCHOOLS

Sharon K. Stull, J.D., SPHR-CA


What employment practices get us in trouble?• Handling complaints• Documentation• Discrimination• Harassment• ADA / Interactive Process• Retaliation

WHAT GETS US IN TROUBLE?


Legal Obligation? • Taking all reasonable measures to prevent

harassment or discrimination of any kind. oTraining - everyone!oRecognizing harassment/discrimination/ADA

Issues. oDealing with issues before they become a

“complaint”oDocumenting that initial complaintoReportingoFollow-through and follow-up

HANDLING COMPLAINTS


Why is it important to document?

What kinds of things should you be documenting?

How do you document that initial complaint? • 5Ws + 1H

DOCUMENTATION

CLICK TO EDIT MASTER TITLE STYLEFORMULA FOR DOCUMENTING

5Ws + 1H• Who – who are the parties involved?• What – what exactly happened?• When – dates, times, how many times?• Where – locations• Witnesses – did anyone see or hear it; did

you tell anyone about it? • How did it make you feel?

CLICK TO EDIT MASTER TITLE STYLE DISCRIMINATION/HARASSMENT

What is discrimination? • When someone is treated differently because

of their protected class status

What kinds of discrimination exist?

CLICK TO EDIT MASTER TITLE STYLEDISCRIMINATION/HARASSMENT


The ADA is intended to enable disabled persons to compete in the workplace based on the same performance standards and requirements that employers expect of persons who are not disabled.

• VERY employee oriented – will try to find in favor of the employee.

AMERICANS WITH DISABILITIES ACT

CLICK TO EDIT MASTER TITLE STYLEAMERICANS WITH DISABILITIES ACT

Passed in 1990 and makes it:

“unlawful to discriminate in employment against a qualified individual with a disability.”

Enforced by EEOC or DFEH


1. A physical or mental impairment that substantially* limits one or more of the major life activities.* California – merely limits

2. A record of such impairment

3. Being regarded as having such impairment.

DISABILITY


Functions such as caring for oneself, performing manual tasks, walking, seeing, hearing speaking, breathing, learning and working.

MAJOR LIFE ACTIVITIES

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Federal standard is “substantially limits”

California standard is “merely limits”

Federal law takes into consideration “mitigation.” California law does not.


“An individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.”

29 CFR Part 1630

QUALIFIED INDIVIDUAL


The fundamental job duties of the employment position.

• The reason the position exists is to perform that function.

• Limited number of employees available to perform that function

• Function highly specialized

ESSENTIAL FUNCTIONS


Is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of the job or to enjoy benefits or privileges of employment equal to those enjoyed by employees without disabilities.

REASONABLE ACCOMMODATION


Providing or modifying equipment or devices

Job restructuring Part-time or modified work schedules Reassignment to a vacant position Adjusting or modifying examinations,

training materials or policies Providing readers or interpreters Making the workplace readily accessible

to and usable by people with disabilities.

ACCOMMODATIONS

CLICK TO EDIT MASTER TITLE STYLEUNDUE HARDSHIP

An employer is required to provide a reasonable accommodation unless:

it is an undue hardship or will incursignificant difficulty or expense

Most accommodations cost less than $200


An accommodation is needed:• When an employee asks for one

An employer must know that an applicant or employee needs a reasonable accommodation.

Hidden vs. Apparent Disability

WHEN …


Generally, it is the responsibility of the applicant or employee with a disability to inform the employer that an accommodation is needed.

The request does not have to be in writing and no “magic language” is required

DISABILITY NOT APPARENT

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Courts have suggested in some cases that it is enough for the employee to say, “I want to keep working for you, do you have any suggestions?”

A statement such as that will trigger the employer’s duty to find out if there is some job the employee can fill or if there is a reasonable accommodation


An informal, interactive discussion between the employer and the individual who needs accommodation after a request has been made.

The employer and individual identify the limitations imposed by the disability and available accommodations that would overcome those limitations to enable the employee to perform the essential functions of the job.

INTERACTIVE PROCESS

CLICK TO EDIT MASTER TITLE STYLEINTERACTIVE PROCESS

1. Cooperative process

2. Reasonable and good faith efforts on both

sides.

3. Not necessary to just defer to the

employee’s request.

4. Employer determines if the individual has

a disability covered by ADA


4. Employer makes an individualized determination, based on objective medical or other evidence, of whether a person with a disability poses a direct threat of harm to himself or herself or others, and if so, whether that threat can be removed by reasonable accommodation.

5. Document the entire process

INTERACTIVE PROCESS


The Federal Privacy Act of 1974 forbids employers from revealing facts about an employee’s medical condition with the employee’s consent. HIPAABe careful how you explain an accommodation.Be careful about passing around get well cards

PRIVACY


Recognize discrimination/harassment Take all complaints seriously Deal with it – immediately Document ADA claims – interactive process a must! Questions

Sharon K. Stull, J.D., [email protected]

SUMMARY

Employment Practices liability When bad thIngs happen to good schools

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