This Week’s HR Tidbits

2

2THE

TOPLINKS

Click the feature article (FA) and begin your navigationthrough the other HR topics addressed insideof this interactive piece!

Dear Clients and Friends,

Welcome to our new format for HR Tidbits. We have created an interactive piece that will allow you to explore the various HR topics at your own pace.

There are two articles contained inside this newsletter that we would like for you to take a look at at your leisure. The first (labeled FA on the right pane) is the feature article. Once you click it, you will open up the rest of the newsletter. There is a navigational button at the bottom of each page to bring you back to the homepage.

We are very excited to try out this new format and we feel that it will be much more user-friendly and will stay away from being “just another email.”

If you have any questions, comments, or concerns about the new document, direct them to Matt Wells, our Business Development and Marketing Liaison at matthew-wells@hc-resources.com.

Please Enjoy!

Sarah Nickell, Jeremy Nickell, and Matt Wells

May 27, 2011; Vol. 1; Issue 1

The rules are changing to “reflect the broader definition of disability.” More individuals are covered. Are you up-to-date?

Learn more about gender stereotyping, gender-basedharrassment, and how to avoidharrassment claims.

Human Capital ResourcesOne Rock At A Time: It’s Our Vision, It’s Our Passion

119 S. Washington St.Marion, IN 46952765-382-3220

Gay and Lesbians Are Not in a Protected Class... or Are They?

ADAAA Effective as of 5/24/11-

Ready for Its 9 Rules ofConstruction? Taken from the BLR Article “ADAAA Effective Tomorrow” published 5/23/11

The new rules reflect the ADAAA’s broader definition of “disability.” As a result, more individuals will have covered disabilities and would qualify for protection under the ADA.

For employers, this generally means shifting your approach from one that focuses on verifying that a person has an ADA disability, to one that uses the interactive process to see if there’s an effective accommodation that will allow an employee to perform the essential functions of his or her job.

According to the EEOC, the primary focus in ADA cases should be whether employers have complied with their obligations under the ADA and whether discrimination has occurred, not whether the individual meets the definition of disability. Determining whether an individual meets the definition of disability under the ADA “should not demand extensive analysis.”

Rules of ConstructionThat said, the regulations provide nine “rules of construction” that must be applied to determine whether an impairment substantially limits a major life activity. The regulations clarify that this analysis is not relevant when determining coverage under the “regarded as” prong of the disability definition (an impairment isn’t required to substantially limit a major life activity to be covered as a “regarded as” disability).

Rule 1. The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.

Rule 2. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section. The EEOC noted that “substantially limits” is intended to be a lower threshold than “prevents” or “severely or significantly restricts” as prior Supreme Court decisions and EEOC regulations had defined the term.

Rule 3. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.

Rule 4. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” must be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA.

Rule 5. The comparison of an individual’s performance of a major life activity to the perfor-mance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. The regulations, however, do not prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.

Rule 6. The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. Under the amended ADA, employers cannotconsider the ameliorative effects of mitigating measures (i.e., medication or a device that improves an impairment) when determining whether an impairment is a disability. For example, an employer may not consider an individual’s use of insulin to control his diabetes when determining whether the diabetes substantially limits the major life activity of eating.

“Non-ameliorative effects.” According to the EEOC’s interpretive guidance, non-ameliorative effects may be considered in determining whether an impairment is substantially limiting. Non-ameliorative effects include negative side effects of medicine, burdens associated with following a particular treatment regimen, and complications that arise from surgery. The new rules reflect the

May 27, 2011; Vol. 1; Issue 1 2

continued on next page >>

May 27, 2011; Vol. 1; Issue 1 3

Rule 7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Rule 8. An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.

Rule 9. The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage does not apply to the definition of “actual disability” or “record of disability.” The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.

Steps Employers Should Take

1. Train supervisors and managers about complying with the amended ADA, in par-ticular about:

· The interactive process· Requests for accommodation· Types of reasonable accommodation· No retaliation

2. Check recordkeeping processes to ensure adequate documentation of:· accommodation requests· steps in the interactive process· reasons for granting/denying an accommodation request.

3. Check equal employment/nondiscrimination policies to make sure they comply with the amended ADA and regulatory requirements.

4. Review job descriptions to ensure regulatory compliance—detailing the essential functions in a job description will help ensure that applicants and employees with disabilities are not discriminated against because they cannot perform marginal job duties.

Gay and Lesbians Are Notin a Protected Class... or Are They?

The claims are made on the basis of an employer’s gender stereotyping of characteristics or traits associated with a particular gender. For example, a federal court has ruled that a gay former employee who was harassed because he did not conform to the male stereotype in his workplace was entitled to bring his lawsuit to trial (Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3rd Cir. 2009)).

(Note: although federal Title VII does not directly prohibit discrimination based on sexual orientation, some state and local laws do.)

What Is Gender Stereotyping?Under Title VII, it is unlawful for an employer to base employment decisions on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex. It may also be unlawful to base employment decisions on the perception that an employee does not fit the stereotype of his or her gender.

The U.S. Supreme Court has ruled that an indi-vidual whose employer took adverse employment action against her because she did not match the gender stereotypes her employer associated with females had an actionable claim under Title VII (Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989)).

What Is Gender-Based Harassment?Courts have consistently ruled that the critical issue in gender-based harassment is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed (Harris v. Forklift Sys., 114 S.Ct. 367 (1993)).

Same-Sex HarassmentAlthough acts of sexual harassment must be grounded in discrimination that is based on sex, the sex of the offender and victim is not control-ling. Sexual harassment of a member of the same sex also violates Title VII’s prohibition against

continued on next page >>

discrimination based on sex (Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998)).The harasser need not be homosexual and need not be motivated by sexual desire to be in violation of the law.

On the other hand, ordinary socializing in the workplace, simple teasing or roughhousing, and male-on-male horseplay or intersexual flirting is not prohibited. The offensive conduct must be sufficiently severe or pervasive in order to create Title VII liability.

The Supreme Court has adopted what might be called a “common sense and context” approach. For example, a coach who slaps a football player on the buttocks as he heads onto the field might not be engaging in abusive behavior, but in a different context (e.g. in an office setting) the coach’s conduct might be considered harassment.

What to Do to Avoid Harassment Claims

Know who qualifies as a supervisor. Employers are often exposed to unnecessary liability by failing to be aware of who is representing the company in a supervisory capacity.

Use reasonable care.Establish, disseminate, and enforce an anti-harassment policy with:

o A clear explanation of prohibited employee conduct.

o A clearly described complaint process that provides accessible avenues of complaint.

o Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation.

o Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.

o A prompt, thorough, and impartial investigation.

o Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

o Other measures to ensure effective dissemination of the policy and complaint procedure, including posting them in central locations and incorporating them into employee handbooks.

May 27, 2011; Vol. 1; Issue 1 4

Enact an effective complaint procedure.This is where an appropriate response by management is taken, such as a thorough investigation of all complaints and taking action to correct any and all offensive con-duct in a timely manner along with other reasonable steps to prevent and correct harassment.

Train employees to use reasonable care.This is where the employee makes a good-faith effort to avoid the harm of harassment and utilizes internal complaint procedures in a prompt and reasonable manner. Failure to complain might be considered reasonable if the employee reasonably believes that us-ing the complaint mechanism entails a risk of retaliation.

OUR VISION.IT’S

IT’S OUR PASSION.ONE ROCK AT A TIME

Sarah Nickell- Managing Partnersarah-nickell@hc-resources.com

Jeremy Nickell- Recruitment Directorjeremy-nickell@hc-resources.com

Matt Wells- Bus. Development and Marketingmatthew-wells@hc-resources.com