Health history discrimination

What an employer asks on employment applications regarding criminal history and how it is used, has long been scrutinized by the Equal Employment Opportunity Commission (EEOC). In recent years when an employer asks about criminal history has been at issue (Should the box be banned, February 4, 2013). Employers are also getting caught on health history questions, although the EEOC has been monitoring that form of discrimination for over twenty years.

EEOC and ADA

The Civil Rights Act of 1964, Title VII, made it illegal to discriminate based on race, color, religion, sex, or national origin. The EEOC was created in 1965 to enforce the Civil Rights Act but had to authority. In 1972, Congress gave the EEOC litigation enforcement authority. The American with Disabilities Act was passed in 1990 and the EEOC was given enforcement authority over Title I of the Act, which includes the employment discrimination provisions. The ADA places restrictions on employers regarding asking job applicants to answer medical questions.

EEOC v. Grisham Farm Products, Inc.

In a recent case the EEOC, on March 22, 2016, filed suit in the United States District Court against Grisham Farm Products, Inc. alleging that its employment application violated the ADA. (Equal Employment Opportunity Commission v. Grisham Farm Products, Inc. 16-cv-03105)

In the case, an applicant applied for a warehouse position at Grisham. The Grisham job application contained forty-three “yes or no” health related questions. The questions were similar to what would be seen on an initial doctor visit. The Grisham application inquired whether in the past ten years the applicant has had allergies, arthritis, bladder infections, eating disorders, gallstones, sexually transmitted diseases, etc. The application also inquired about prior hospitalizations, HIV infection, treatment for alcoholism, and whether the applicant consulted a doctor, chiropractor, therapist, or other health care provider in the past two years.

The application’s Health History section stated in large letters, “All questions must be answered before we can process your application”. The applicant did not answer all of the questions and telephoned Grisham Farm. A company representative said that if the health history section was not fully completed, it would not be accepted.

The EEOC claims that the applicant believed he did not have to reveal his medical history to any potential employer. The case is still in litigation.

Review your hiring process

Employers should be frequently reviewing their hiring process. They also need to follow EEOC decisions as these decisions occur frequently and affect the hiring process. As with questions regarding criminal history, there are parameters as to what health questions can be asked and when they can be asked. The EEOC is clear that pre-employment health inquiries can be made only after a conditional offer has been made, if the inquiries are made to all applicants for that job category, and the inquiries are job related and consistent with a business necessity.



May 9, 2016-The EEOC released it's latest guidance on leave as a reasonable accommodation under the ADA. Employer-Provided Leave and the Americans with Disabilities Act

Enforcing company policy

The National Labor Relations Board ruled in favor of an employee fired because of a rant on Facebook against the employer. Perhaps more significantly, the company cited violation of its obscenity policies, which the NLRB disregarded because the policy was found to have been unenforced in past instances. Underscoring the importance to enforce policies regularly and fairly. Not just when it is convenient for management. 

The case

By a two-to-one vote, a three-member panel of the National Labor Relations Board upheld an administrative law judge’s findings that an employer unlawfully discharged an employee because of social media comments, including strong obscenities that were personally critical of a company manager. (Pier Sixty, LLC and Hernan Perez, et al, NLRB Cases No 02-CA-068612 and 02-CA-070797, March 31, 2015.) 

The company’s employees expressed interest in union representation, based in part because of concerns that management treated them “disrespectfully and in an undignified manner.” Those efforts resulted in a successful organizing campaign, after which the Union was certified as the exclusive collective bargaining representatives. Two days before that election a long-term employee was working as a server at an event. During the cocktail service a company manager allegedly approached and in a loud voice and in front of guests addressed the employee and two other employees, using an unnecessarily harsh tone, and waiving his arms. Upset with the manager’s treatment, the employee took a break and, outside of the banquet facility, posted from his phone a message to his personal Facebook page. The message referred to the manger as a “NASTY M***** F***er” and a “LOSER!!!!,” stated “f*** his mother and his entire f***ing family,” and ended with “Vote YES for the UNION!!!!!!!” After being made aware of that posting, the company fired the employee for violation of its obscenity policy. 

Decision

The panel determined the firing violated the NLRA because the Facebook post was deemed to be protected concerted activity. Although the company argued that the employee had violated company policy regarding obscene language, it was determined that since 2005, the company had issued only five written warnings to employees who had used obscene language, and had discharged no one on that basis. Further, it was found that the employee's use of obscene language in his posting was not “qualitatively different from profanity regularly tolerated by the company.” 

The NLRB first ruled on “Facebook firings” in October 2012. The NLRB has ruled that postings on social media regarding the way employees are treated or working conditions are protected concerted activities under the National Labor Relations Act. The company’s defense of policy violation in the aforementioned case did not stand up because the policy itself was overlooked.

Employee handbooks and rules are necessary for a safe and favorable workplace. However, when violations of policies are overlooked the workplace can become a dangerous and/or hostile environment. Additionally, employee morale tends to be low because of managerial indifference or inequitable enforcement of violations. When policies are enforced as a “CYA” measure, reviewing entities rarely rule for the company.

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#IQUIT

A manager of a small business, who was obviously very busy as she was filling in for a shorthanded staff, told me that one of her employees had quit via a text before the shift was to start. Is this what can be expected of the new generation of workers? I don’t think the finer business schools are teaching students to avoid human contact. The cause may be due to a lack of business training or the product of informality that has beset the up and coming workforce. Either way the Millennial Generation will find a difficult way through their job searches until this form of communication is the norm.

Texting

The ability to text via a mobile phone has been available for the last 20 years although it has only recently hit its stride. Once standardized billing became available and texting became basically as free as a phone call, texting took off. In the last few years texting has become a common verb and replaced actual conversations. Jerry Seinfeld recently said, “Talking has become too much of an effort.”

Texting has availed us of the face-to-face confrontation and is seeping into the business world.

All of us have wanted to avoid an awkward conversation at one time or another. There are plenty of stories of love lives having ended via the text. But it’s not like your ex is going to be interviewed as to your qualifications as a companion. Well, maybe a dater’s resume does get around, but that doesn’t affect your livelihood. Some people will leave jobs on bad terms and then will list that job as a reference. One cannot expect a positive recommendation after quitting through a text.

References

How important are references to a job seeker? Very. References still play a big part in the application process. Most companies ask for character references and almost all ask for at least one contact from a former employer. And the fact that employers are asking isn’t just an empty question. They are checking with the contacts that are listed. According to a survey by the Society for Human Resource Management (SHRM), close to 90 percent of HR professionals do check references and found that a little more than 50 percent of candidates had provided false information.

Whether the barista gig isn’t working or you have a lousy boss, leave any job with professionalism. Even burned bridges have a way of rebuilding themselves and hurting your chances at that dream job years later.

Hiring training

Can an interview tell employers everything?

As a business owner, you sometimes have to make quick hiring decisions to fill a need. Whether it is a big project that was just landed or to fill an unexpected vacancy, you should always stick to your hiring process. Be diligent and know whom you are hiring.

I recently had a client that hired a skilled tradesman. The client conducted the normal process- interview, references, resume, not much beyond that. The work required the employee to have his own transportation, tools, etc. and that the employee would be left unsupervised at job sites. For this story we’ll call the employee George.

After a report that George did not arrive on the job site one morning, the employer learned that George had been arrested over the weekend.  The employer now had to ensure other employees completed the day’s work, figure out what happened to George, and whether he’d be back to work. We can’t control everything our employees do in their personal lives, but if you have a thorough screening process you can gain valuable insight into the employee’s character and propensity for behavior that could bring embarrassment to your company or termination for the employee.

In this case, the employer learned after the fact that George had a few things going on that could affect job performance. George had a drug addiction that caused financial and family issues. Family issues being that George had finalized a divorce and was behind on alimony and child support payments. Under Maryland law, “deadbeat dads” have their driver’s license suspended until child support is paid. Additionally, there was a warrant for George’s arrest resulting from being in arrears on child support. Over the weekend, George was stopped for speeding. A record check exposed the open warrant and suspended license. George also had too much to drink. He was arrested and his truck impounded. While George was out of jail by Monday morning, he lost his truck and tools to the captivity of the impound lot.

It may sound like I am overdramatizing events for the purpose of this post, but George’s predicament actually happened. Once you go down this path bad things have a way of accumulating. A worse situation is when someone like George shows up for work on Monday after an extremely busy weekend and is driving your company vehicle or on the showroom floor when the police catch up with him.

The point being, know whom you are hiring. Doing a few simple things could have saved this employer the personnel headaches associated with someone like George. Drug testing can show current or recent use. Driving record checks will not only show the employer the employee’s driving habits but if there are any government sanctions on the license. Thorough interviews and reference checks go a long way also. You can go beyond a simple interview and stay well within your rights as an employer. 

Having thorough hiring practices also come into play in the home. Before you hire someone to work around the house or be alone in your home, conduct a job interview. Make sure they are properly licensed. Ask for references. If it is long term employment, conduct the additional checks needed to make you comfortable in your decision to hire the person.

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