By Tammy Binford

 Parents of children with special needs often look for support from family, doctors, schools, advocacy groups, and other parents. Just having someone to talk to can help parents find solutions when difficult issues come up. And now more parents are finding that support at work.

Some companies offer affinity groups for parents of children with special needs. Other helpful benefits include flexible scheduling, job-sharing, a favorable attitude toward part-time workers, employee assistance programs, and health plans that cover treatment for a variety of special needs.

Here’s a look at some of the benefits employers can use to help parents with special needs children.

Affinity Groups

Some employers support affinity groups, what some companies call Employee Resource Groups (ERGs) that allow employees dealing with certain challenges to support each other. Microsoft is just one example. The company’s Parents ERG includes a subgroup for parents with special needs children.

“Our goal is to bring together people who are experiencing similar challenges in juggling parenting and working at Microsoft,” according to the company’s website. “The Parents ERG strives to create awareness at Microsoft of these challenges and to provide services and support that enable Parents ERG members to be good parents and good corporate citizens.”

 Health Benefits for Part-Time Workers

Health insurance is a high-priority benefit for parents of children with special needs. Companies that offer benefits to part-time workers may be highly valued by workers who need less than full-time work. Employees with special-needs children also need health plans that cover the kind of treatment and therapy that can help their children – services often not covered in employer-sponsored health plans.

 
Help with Child Care

Some employers make an effort to help employees find appropriate day care and may even provide onsite day care for children with special needs. Summer, when the kids aren’t in school, can be a special challenge, so some employers provide help there, too.

For example, Virginia Commonwealth University prepared a list last summer of options to help employees find appropriate activities for their children with special needs. The camps included a camp for children with mild to severe mental disabilities, learning disabilities, autism and attention deficit disorder; an Easter Seals camp for children with physical and cognitive disabilities or other special needs; and a long list of others.

Bank of America is another example of employers helping with day care. The December 2011 list of Working Mother magazine’s 10 best companies for working moms noted Bank of America’s resource and referral service that can help find special-needs caregivers.

Financial and Legal Advice

Parents of special needs children face challenges related to how their children will get along when they’re no longer children. Employers can be of help by offering assistance such as defense contractor Raytheon’s Mission: Health program. Among other things, according to the company’s website, the program offers help with estate planning for special-needs dependents. The company also offers flexible work arrangements, financial counseling services, and a group legal plan offering access to a nationwide network of attorneys who can help with a variety of legal matters.

General Referrals

Aerospace and electronics giant Northrup Grumman is among employers taking steps to help employees balance home and career by compiling information for employees. “We connect employees to disability-related information and resources, including assistive technology information, special-needs parenting contacts, and educational resources for parents of special-needs children,” according to the careers segment of the company’s website.

Just the ability to work outside the home often represents more of a challenge to parents of children with special needs than it does to other employees. A study reported online in March from the journal Pediatrics pointed out that parents of children with special needs often find themselves earning less than their peers who don’t have special-needs kids. So the support available in the workplace can be especially important.

The study, which focused on autism, reported that overall earnings in families of children with autism spectrum disorder are $17,763 less on average than earnings of families whose children don’t have health limitations and $10,416 less than families with children that have health limitations other than autism.

The lower earnings are a result of lower income from mothers, according to the study, since there was no significant average difference in fathers’ incomes. The study reported that families with children on the autism spectrum are nine percent less likely to have both parents working outside the home than other families.

With the steady flow of news putting religious issues in the spotlight, it’s a good time to review the requirements regarding religion in the workplace.

Religion and Private Employers

Although the U.S. Constitution prohibits governments from interfering with the free exercise of religion, it doesn’t dictate how a private employer must deal with religion. Given that most of the media’s stories about religion cover government action regarding school prayer or the posting of religious symbols on government property, they have little relevancy to religious issues in a private workplace.

But while private employers need not be concerned about constitutional requirements governing religion in the workplace, you must be mindful of statutory prohibitions on discrimination against employees based on religion and the requirement that you reasonably accommodate employees’ sincerely held religious beliefs so long as doing so will not cause an undue burden.

That may seem no different from similar rules on race, gender, and other protected categories, but the vast array of religious beliefs and practices can make compliance with the rules on religion particularly challenging. Indeed, while modern society has broader views of what constitutes race and even gender, the characteristics associated with race and gender are still mostly immutable ― and certainly easier to ascertain than the characteristics associated with sincerely held religious beliefs.

A “religion” can be one of the large traditional belief systems such as Christianity, Judaism, and Islam, a belief system held by just a few people, or even a belief system that would be considered unusual or ridiculous by most people. However, a “religion” must involve a belief system that seeks to answer such questions as the meaning of life, the nature of death, and a person’s place in the universe. Political, social, and philosophical beliefs, even if they’re very strongly held, do not constitute a “religion.” And a personal preference such as the desire to attend worship services at a particular time isn’t a religious belief even if it’s connected to religious beliefs.

Religious practices are too numerous to describe in detail, but they generally include attendance at worship services, clothing requirements, dietary restrictions, Sabbath obligations, and prayer rituals. Typical accommodations include allowing employees to trade shifts to attend worship services or observe the Sabbath, wear a particular item ofclothing, or use an empty room for prayer.

Employment Decisions and Accommodations

As with other protected categories, employers may not make employment decisions based on employees’ religion or religious practices. For example, you may not refuse to hire or promote a qualified person because of her religion, favor one employee over another based on religion, or require a person to comply with a religious practice as a condition of employment. You also may not treat similarly situated employees differently based on religion ― for example, by allowing one desk clerk to have a Bible on his desk but precluding another from having a Koran on his desk. Finally, you may not permitan employee to be harassed because of her religion or religious beliefs.

Employers may require evidence confirming employees’ claimed beliefs. No particular type of evidence is required, however, meaning you may not insist on seeing a published dogma or receiving verification from a minister. And the request itself may not be discriminatory, such as only seeking confirmation of the sincerity of non-Christian beliefs.

If an employee has a sincerely held religious belief that conflicts with a work rule or requirement, you must accommodate his belief so long as doing so will not create an undue hardship for the company. In the context of religion, an accommodation creates an “undue” hardship if it will cause more than a de minimis (minimal) cost or burden to the employer, which is a far lower standard than required for reasonable accommodation in other situations.

What constitutes a “reasonable accommodation” will depend on the particular facts of each situation, such as the employee’s work location and duties, the number of employees who will be affected by the accommodation, and, of course, the cost of the accommodation. Generally, however, an accommodation is unreasonable if it creates a safety or security risk or infringes on the rights of other employees.

Bottom Line

If an employee requests an accommodation based on religion, don’t dismiss it out of hand, no matter how strange it may seem. Instead, engage in a dialogue with the employee to confirm the belief and determine if there is a way to accommodate it that will cost the company nothing (or very little) and won’t impinge on the rights of other employees. Be consistent in how you respond to requests for religious accommodation or claims of religious discrimination or harassment. And, as always, make sure your policies state that you don’t tolerate discrimination or harassment, train your managers to be sensitive to issues involving religion, and put a stop to any jokes, banter, or other conduct that denigrates someone’s religion or religious beliefs.

Keith Moorman is an attorney with Frost Brown Todd PLLC in Lexington, Kentucky. He has represented numerous clients in cases filed in the state and federal courts of Kentucky, New York, Ohio, North Carolina, South Carolina, and Tennessee, and has tried cases in Kentucky, North Carolina and Tennessee. You may contact him at www.frostbrowntodd.com/professionals-keith_moorman.html?email-this-page

The First Amendment to the U.S. Constitution prohibits a state employer such as a university from discriminating against applicants and current employees based on their political beliefs or affiliations except in very limited instances. If an applicant or employee can demonstrate that her political views or associations caused a state employer to make an adverse employment decision (e.g., refusal to hire, termination, or failure to promote), the employer must prove it would have taken the same action regardless of the individual’s political views. In a recent decision, the Eighth U.S. Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) explained what constitutes unlawful “political discrimination” and how state employers can prevent it, particularly in a politically charged election year.

Facts

Teresa Wagner graduated from the University of Iowa College of Law (Iowa Law), a state-run school. As a registered Republican and an advocate of socially conservative causes, she spent time working for the National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, a conservative advocacy group. She also spent two years teaching legal research and writing at George Mason University School of Law.

In 2006, Wagner began working part-time for Iowa Law in its writing center. Soon after, the school announced two full-time openings for legal research and writing instructors, and Wagner applied for a position. Her resumé included her previous work for conservative organizations. Her application was reviewed by the Faculty Appointments Committee, which consisted of chairman Mark Janis, law school dean Carolyn Jones, and four faculty members. Janis initially told Wagner that her application had been well received by the committee.

In her initial interview, a committee member asked Wagner if she knew the difference between legal writing and analysis, and she responded affirmatively. Janis later e-mailed Wagner, stating that the committee was enthusiastic about her candidacy. Of 50 applicants, she was one of five selected for a second full-day interview. Only three candidates actually interviewed for the two open instructor positions.

Before her full-day interview, Wagner met individually with associate deans John Carlson and Eric Anderson. She told Carlson that she had previously received an offer for a tenure-track position at Ave Maria School of Law. Carlson told her to conceal that fact during her interview because of Ave Maria’s conservative reputation. By contrast, Iowa Law has a liberal reputation, and only one of 50 law professors there is a registered Republican. For that reason, Wagner asked Anderson if he thought the faculty would hold her conservative views against her. He indicated he didn’t know. He did, however, relay her concerns about her conservative political affiliations being held against her to Jones.

During the full-day interview, members of the faculty questioned Wagner on the differences between legal writing and analysis and which was more important to the position. Wagner claims she responded appropriately. After the interview concluded, seven faculty members complimented her on her performance. Another professor and two reference librarians e-mailed their support for her to be hired. Carlson and Anderson both supported hiring her, and student feedback also was positive. Wagner received the highest possible ratings and was ranked higher than the other top candidate, Matt Williamson, by the students.

The next day, the faculty discussed the applicants in a meeting attended by Jones. Ultimately, although there were two positions available, the faculty voted to hire only Williamson. As an adjunct instructor, he had never practiced law, had published no articles, and had no previous successful teaching experience. Janis later informed Wagner that she would not be offered the position.

Wagner later learned that professor Randall Bezanson, a decidedly liberal faculty member and legal scholar, was a vocal opponent to hiring her. Bezanson later testified that he remembered some mention of Wagner’s conservative viewpoint during the meeting. On the day of the decision, Carlson expressed concern in an e-mail to Jones that the faculty opposed hiring Wagner in any position, at least in part because they so “despised her politics,” especially her conservative activism. The school provided a “hiring justification summary” to Wagner stating the faculty perceived her to be less familiar with the analysis component of the legal research and writing program than Williamson. The statement encouraged her to apply for an adjunct position to gain experience in that area.

Wagner pursued an adjunct position with Iowa Law. She received unanimous support from the committee members for consideration by the faculty. However, she wasn’t offered an interview, and the faculty voted not to hire her for the position without explanation. Instead, Jones hired two adjuncts, neither of whom had previous law school teaching experience. Additionally, they both had such low student evaluation scores that they weren’t considered for the full-time positions. Another professor expressed his surprise to Wagner that she hadn’t been hired for the adjunct position because he had never heard of the faculty rejecting an applicant who had been recommended by the committee. Carlson suggested to Wagner that she not apply again.

Nevertheless, Wagner applied for an adjunct position four more times between 2007 and 2009 and was rejected each time without an interview. She eventually filed a lawsuit against Jones for First Amendment political discrimination alleging that she violated her First Amendment rights to political belief and association by refusing to hire her for any of the legal research and writing positions.

Political Discrimination By a State Employer Is Prohibited

The First Amendment prohibits a state employer from basing hiring decisions on political beliefs or associations, with limited exceptions for policymaking and confidential positions (neither of which applied to this case). The state can neither directly nor indirectly interfere with an employee’s (or applicant’s) rights to political association and belief. Any action by the state that runs afoul of those legal precepts may constitute unlawful political discrimination.

Political Discrimination Test

When a nonpolicymaking employee files a political discrimination case against a state employer, the following test applies:

• The employee must first produce sufficient evidence that her political belief or affiliation was a substantial motivating factor in the adverse employment action (in Wagner’s case, failure to hire).

• If the employee meets that burden, the state employer must:

• articulate a nondiscriminatory basis for the adverse employment action; and
• prove that it would have taken the same action regardless of the employee’s political belief or affiliation.

• If the employer can do that, the employee must then discredit the nondiscriminatory explanation by producing evidence that political discrimination was likely a motivating factor.

Wagner Establishes Political Discrimination

If a state employer refuses to hire an individual because of her political beliefs or associations, then the individual has suffered an adverse employment action. Thus, Wagner needed to prove only that Iowa Law’s discriminatory motive regarding her political affiliation was a substantial motivating factor behind Jones’ decision not to hire her. On that point, Wagner was able to show that:

• Only one of 50 faculty members at Iowa Law is a registered Republican.

• She was warned by Carlson to conceal her offer from a conservative law school.

• Someone mentioned her conservative beliefs in a faculty meeting.

• The candidates hired for the adjunct positions were less qualified than she was.

The court found the evidence sufficient to infer that Jones’ decisions not to hire Wagner were at least in part motivated by her political beliefs and associations.

Jones responded by arguing that she would have made the same hiring decisions regardless of Wagner’s political affiliations and beliefs. She explained that Wagner wasn’t hired because the faculty felt she didn’t understand the analysis portion of the legal research and writing program and that the hiring justification summary reflected that sentiment.

Wagner then attempted to discredit Jones’ nondiscriminatory explanation by arguing that she answered the interview questions about analysis satisfactorily. Furthermore, she showed that all the contemporaneous documentation from the interview process was positive and favored hiring her. Seven professors had complimented her performance, and she had received extremely positive student feedback. Additionally, the faculty had offered no explanation for hiring only one instructor when two positions were available, nor had they given any justification for repeatedly rejecting her applications for the adjunct positions.

After considering all the evidence, the Eighth Circuit found that Wagner had presented sufficient evidence of possible political discrimination. As a result, her case will now go to a jury to determine whether Jones violated her First Amendment rights.

Jones Could Be sued in Her Individual Capacity

Federal law provides that an individual can file a lawsuit and recover damages against any person who, acting “under the color of state law,” violates her rights secured by the U.S. Constitution or the laws of the United States. Because Jones is an employee of a state institution, her actions were considered “under the color of state law.” Therefore, she could be sued personally for allegedly violating Wagner’s First Amendment rights.

When state employees are sued in their individual capacities, they can assert as a defense that they have immunity, which shields them from individual liability. Jones argued that she was entitled to immunity in this case. However, the court found that the defense didn’t apply because Wagner had established a violation of her constitutional rights. Despite knowing that her political beliefs may have been impermissibly considered by the faculty, Jones decided not to hire her anyway. Wagner v. Jones, Dean, Iowa College of Law, No. 10-2588 (8th Cir., Dec. 28, 2011).

Bottom Line

When making employment decisions, state employers and individuals employed by state entities cannot discriminate against employees or applicants based on political beliefs or affiliation. Furthermore, individual supervisors may be subject to personal liability if they participate in decisions that violate federal law or the U.S. Constitution. State employers and supervisory-level employees must avoid considering a current or potential employee’s political views when making employment decisions and take appropriate measures to prevent others from doing the same. To avoid potential liability, state employers should be prepared to:

• articulate a legitimate nondiscriminatory explanation for the adverse employment action challenged; and

• demonstrate that the same action would have been taken without regard to the individual’s political beliefs or affiliation.

The more concretely a state employer can establish those facts through documentation and other evidence, the less likely a court will find that the employee’s First Amendment rights have been violated.

Jeremy M. Brenner is an associate with Armstrong Teasdale LLP in St. Louis, Missouri. As a member of the firm’s Employment and Labor practice group, Jeremy works with public and private sector employers in a wide array of industries in human resources related matters and all aspects of litigation at the administrative, state and federal levels. He can be reached at jbrenner@armstrongteasdale.com.

Agencies that participated in the Hate Crime Statistics Program in 2010 represented over 285 million inhabitants, or 92.3 percent of the nation’s population, and their jurisdictions covered 49 states and the District of Columbia. For each hate crime offense type reported, law enforcement must indicate at least one bias motivation. A single-bias incident is defined as an incident in which one or more offense types are motivated by the same bias. A multiple-bias incident is defined as an incident in which more than one offense type occurs and at least two offense types are motivated by different biases.

Incidents & Offenses

In 2010, 1,949 law enforcement agencies reported 6,628 hate crime incidents involving 7,699 offenses. There were 6,624 single-bias incidents that involved 7,690 offenses, 8,199 victims, and 6,001 offenders. The four multiple-bias incidents reported in 2010 involved nine offenses, nine victims, and seven offenders.
Analysis of the 6,624 single-bias incidents showed that 47.3 percent were motivated by a racial bias (down from 48.5% in 2009), 20 percent were motivated by a religious bias (remaining fairly steady from 19.7% in 2009), 19.3 percent were motivated by a sexual-orientation bias (up from 18.5% in 2009), and 12.8 percent were triggered by ethnicity/national origin bias (up from 11.8% in 2009). Bias against a disability accounted for only 0.6% of single-bias incidents (down from 1.5% in 2009).

There were 4,824 single-bias hate crime offenses classified as crimes against persons. Intimidation accounted for 46.2 percent of these crimes, simple assaults for 34.8 percent, and aggravated assaults for 18.4 percent. In addition, seven murders were reported as hate  crimes.
There were 2,861 single-bias hate crime offenses classified as crimes against property. The majority of these offenses (81.1%) were acts of destruction/damage/vandalism. The remaining 18.9 percent of crimes against property consisted of robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses. There were 14 offenses defined as crimes against society (e.g., drug or narcotic offenses
or prostitution).

When considering hate crime offenses by the type of victims reported, 81.6 percent of reported offenses were directed at individuals, 4.5 percent were against businesses or financial institutions, 3.5 percent were against government, 2.6 percent were against religious  organizations, and 0.2 percent were against society. The remaining 7.6 percent were directed at other, multiple, or unknown victim types.
Victims

Of the 7,690 single-bias hate crimes reported in 2010, almost half of the victims (3,949, or 48.2%) were targeted because of their race. Of these victims, 70 percent were victims of offender’s anti-black bias, while only 17.7 percent were victims of an anti-white bias. Of the remaining victims, 5.1 percent were targeted because of an anti-Asian/Pacific Islander bias, 1.2 percent were victims of an anti-American Indian/Alaskan Native bias, and six percent were victims of a bias against a group of individuals in which more than one race was  represented (anti-multiple races, group).

Hate crimes motivated by a religious bias accounted for 1,552 offenses (or 18.9%) in 2010. Of these victims, 67 percent were victims because of an offender’s anti-Jewish bias, 12.7 percent were victims because of an anti-Islamic bias, 4.2 percent were victims because of an anti-Catholic bias, three percent were victims because of an anti-Protestant bias, and 0.5 percent were victims of an  anti-atheist/agnostic bias. Of the remaining victims, 9.1 percent were victims of a bias against other religions (anti-other religion), and 3.5 percent were victims of a bias against groups of individuals of varying religions (anti-multiple religions, groups).

There were 1,528 hate crimes (or 18.6%) based on a sexual-orientation bias reported in 2010. Of these victims, 57.3 percent were targeted because of an anti-male homosexual bias, 27.5 percent were reported as anti-homosexual bias, and 11.8 percent were prompted by an anti-female homosexual bias. Of the remaining victims, 1.9 percent were classified as anti-bisexual bias, while 1.4 percent were the result of an anti-heterosexual bias.
Hate crimes motivated by the offender’s bias toward a particular ethnicity/national origin were directed at 1,122 victims (or 13.7%). Of these victims, 66.6 percent were targeted because of an anti-Hispanic bias, while 33.4 percent were victimized because of a bias against other ethnicities/national origins.
There were 48 reported hate crimes committed based on a disability bias. Of these, 24 offenses were classified as anti-mental disability, while 24 offenses were reported as anti-physical disability.

Offenders

In 2010, of the 6,008 known hate crime offenders, 58.6 percent were white, 18.4 percent were black, 8.9 percent were groups made up of individuals of various races (multiple races, group), 1.1 percent were Asian/Pacific Islander, one percent were American Indian/Alaskan Native, and 12 percent were of unknown race.
A total of 4,873 known hate crime offenders committed crimes against persons in 2010, and of these offenders, 40.5 percent committed simple assault, 35.4 percent intimidated their victims, 23.5 percent committed aggravated assault, 0.3 percent murdered or raped their victims, and 0.3 percent committed other types of offenses.

A total of 1,419 known hate crime offenders committed crimes against property in 2010, and of these offenders, 58.6 percent committed destruction/damage/vandalism, 20.4 percent committed robbery, 9.9 percent committed larceny-theft, 6.2 percent committed burglary, 2.1 percent committed arson, 0.6 percent committed motor vehicle theft, and 2.2 percent committed other types of offenses.

In 2010, 18 known offenders committed 14 crimes against society involving 14 victims.

Location

Beginning in 2010, reporting agencies could specify the location of an offense within a hate crime incident as one of 30 (formerly 25) location designations. The five new location designations are camp/campground, gambling facility/casino/race track, industrial site,  park/playground, and shopping mall. Because not all reporting agencies have made the programming change to allow these additional  location designations, the data collected to date is not yet representative of these new location designations.

The largest percentage (31.4%) of hate crime incidents in 2010 occurred in or near residences or homes, followed by 17 percent on highways, roads, alleys, or streets; 10.9 percent at schools or colleges; 5.8 percent in parking lots or garages; 3.7 percent in churches, synagogues, or temples; 2.2 percent in bars or nightclubs; 1.9 percent in commercial office buildings; and 1.6 percent in government/public buildings. The remaining 25.6 percent of hate crime incidents occurred at other specified locations (air/bus/train terminal, convenience store, service/gas station), in multiple locations, or other/unknown locations.

It’s often easy for employers to be understanding when workers occasionally need to duck out of work early for a meeting at school or a trip to a child’s doctor. It happens to nearly every working parent once in a while.

But what about an employee whose child has some kind of special need, a parent whose caregiving responsibilities are seen as especially time-consuming and difficult to juggle with work responsibilities? An employer in that situation may be sympathetic but worried about getting the job done, even nervous about the reliability of the employee.

In addition to those attendance and performance concerns, employers have to be aware of legal hazards. Can an employer’s treatment of employees with special-needs children become a legal hazard? It is possible.

FMLA Protections

“The federal antidiscrimination laws do not specifically protect ‘caregivers’ as a group, but there are circumstances where a particular caregiver or parent has certain protections under the law,” says Catherine M. Stevens, an attorney in the Lexington, Kentucky, office of Frost Brown Todd LLC.

“For example, an employee caring for a special-needs child may be entitled to job-protected leave if the child has a ‘serious health condition’ as defined by the Family and Medical Leave Act,” Stevens adds. While not all special-needs children would make their parents qualify for FMLA leave, employers need to keep their obligations under the law in mind.

ADA Protections

Another legal hazard comes in the form of stereotyping employees who have children with special needs. It’s possible that an employer who refuses to hire or promote such a parent could run afoul of the Americans with Disabilities Act (ADA) since that law includes a provision prohibiting discrimination against a person because of his association with a person with a disability.

It’s not a given, but children with certain special needs may fit the definition of disabled under the ADA. Cases based on an employee’s association with someone with a disability are rarer than other types of ADA claims, Stevens says, but the ADA does provide for that possibility.

Although parents of special-needs children don’t constitute a protected class under the ADA or any other federal law, such employees do have recourse in the laws that define existing protected classes. For example, a working mother who feels she’s being held back at work because of a special-needs child might make a sex discrimination claim if she can point to more favorable treatment for a male coworker in a similar caregiving situation. Such a case could be disparate treatment based on sex, Stevens says.

Employers also have to be careful about how they handle coworker complaints about an employee’s attendance or performance. An employee taking leave to deal with a child’s needs shouldn’t feel obligated to explain details. Such explanations could cross the line into personal health information that an employer has to protect.

The reason for any employee’s leave should be kept confidential, Stevens says. Such details should be handled on a need-to-know basis, and an employee’s direct supervisor might not even be someone who would need to know. Employers need to make sure supervisors aren’t seen as retaliating, discriminating, or discouraging employees from taking leave they’re entitled to.

Family Responsibility Discrimination

Parents of children with special needs are among employees that can be at risk of “family responsibilities discrimination” (FRD). While there’s no specific federal law against it, information from the Sloan Work and Family Research Network points out that “employers are being sued using a ‘patchwork’ of claims under federal and state antidiscrimination and leave laws.”

The 2010 installment of the Sloan network’s Effective Workplace Series also points out that some states and local jurisdictions do have legislation that addresses FRD specifically.

FRD is a concept that’s gotten a lot of attention from the Equal Employment Opportunity Commission (EEOC) even though there’s no specific federal law against it. The EEOC has prepared a document titled “Employer Best Practices for Workers with Caregiving Responsibilities.” Here are some of the EEOC’s suggested best practices:

• Be aware of, and train managers about, the legal obligations that may have an impact on decisions about treatment of workers with caregiving responsibilities. Legal obligations include those in the ADA, the Equal Pay Act, the Pregnancy Discrimination Act, Title VII of the Civil Rights Act of 1964, and the FMLA.

• Develop, disseminate, and enforce a strong equal employment opportunity policy. That should include providing examples of prohibited conduct such as asking female employees, but not male employees, about their child-care responsibilities or denying male employees’ leave requests related to caregiving but not denying such requests from female employees.

• Respond to complaints of caregiver discrimination efficiently and effectively.

• Make sure employees complaining about unfair treatment of caregivers don’t suffer from retaliation.

The vast majority of all equal employment opportunity lawsuits are filed by individual employees or job applicants. The Equal Employment Opportunity Commission (EEOC) may file cases on behalf of individuals, but it rarely does so because of limited resources. To get more “bang” for its litigation bucks, the EEOC is increasingly turning to “pattern-or-practice” cases. You should respond to any EEOC charges against your company with that in mind, crafting your responses to avoid creating issues that trigger federal court litigation funded by the agency.

EEOC Focus: Systemic Claims

In recent years, the EEOC has shifted much of its focus to systemic claims, otherwise known as pattern-or-practice claims, which target discriminatory patterns, practices, or policies that have a broad impact on certain groups of individuals. In 2005, for example, the EEOC created the Systemic Task Force for the primary purpose of improving its methods and strategies for targeting systemic discrimination. In fact, although the EEOC has recently filed fewer lawsuits on behalf of individual employees, the number of systemic discrimination lawsuits it has initiated has approximately doubled in the past 10 years. In 2010 alone, out of 165 systemic investigations, the agency obtained 29 settlements or conciliation agreements, bringing in approximately $6.7 million.

Statute of Limitations Issues

The danger is enhanced still further by the aggressive position the EEOC takes in such matters. More specifically, the agency contends that it may pursue pattern-or-practice claims even if they are based on conduct outside the 300-day limitations period. Put another way, the EEOC contends that it isn’t bound by the 300-day limitations period when it’s litigating pattern-or-practice cases. Although several courts have held that the EEOC, like individual plaintiffs, is bound by the limitations period, at least one district court in New York has held otherwise.

In a 2009 case, a magistrate judge held that the time limitations “do not limit the relief . . . the EEOC may seek.” The agency commenced an enforcement action against an employer that included both individual and pattern-or-practice charges and alleged discriminatory acts beginning on January 1, 2003, at the latest. The employer asked the court to dismiss the complaint to the extent that it sought relief for alleged discrimination occurring before July 22, 2004, or 300 days before the date on which the first individual charge was filed. In response, the EEOC argued that the statute of limitations didn’t apply to its claims. The magistrate judge agreed and recommended that the employer’s request for dismissal be denied. His report and recommendation were later adopted by the district court judge. EEOC v. Sterling Jewelers Inc., 2009 U.S. Dist. LEXIS 122102 (W.D.N.Y., 2009).

Other courts, both before and after the Sterling Jewelers decision, have reached the opposite conclusion. Indeed, in some of the more recent cases, district courts have dismissed claims filed by the EEOC outside the 300-day statute of limitations as untimely. Nevertheless, because the law is unsettled and because the EEOC continues to take the position that it isn’t bound by the limitations period, employers must be prepared to defend against potential pattern-or-practice charges, even if they’re arguably untimely.

Practical Pointers

In light of the fact that the EEOC has made pattern-or-practice claims a priority, you should be cautious when responding to charges and participating in the investigation of individual claims. Indeed, the EEOC has authority to expand the scope of its inquiry to address systemic claims that are ascertainable during the course of its investigation of individual charges. Thus, you must be aware that any information you provide to the agency can raise potential pattern-or-practice issues and may result in additional, more threatening EEOC charges.

The bottom line is that you cannot necessarily rely on the short limitations period of the federal antidiscrimination laws. The EEOC is willing to look beyond the traditional 300-day period if it believes there’s evidence of a systematic form of discrimination. Be sure you consider that when drafting responses to EEOC charges.

Diane Pietraszewski is an associate with Bond, Schoeneck & King, PLLC, in the Buffalo, New York, office and a contributor to New York Employment Law Letter. She can be reached at dpietraszewski@bsk.com or (716) 566-2853.

It may seem that requiring a high-school diploma for a job is a correct answer. However, a recent “informal discussion letter” from the Equal Employment Opportunity Commission (EEOC) indicates that you may need to do more studying before making that choice.

Background

In October 2011, the state of Tennessee wrote the EEOC, asking whether “the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), prohibits the state of Tennessee from requiring students with learning disabilities to take ‘Gateway tests’ or ‘end-of-course assessments’ in order to receive their high-school diplomas.” The EEOC initially responded by referring the state to the Tennessee Department of Education. However, the EEOC then took the opportunity to address one statement in the letter that raised employment-related concerns for the agency under Title I of the ADA. We want to ensure you are aware of the agency’s position on the matter.

As the EEOC noted, Tennessee pointed out that some individuals cannot obtain a high-school diploma. Thus, because their learning disabilities caused them to perform inadequately on an end-of-course assessment, they cannot obtain jobs requiring a high-school diploma. In its second response, the EEOC took the opportunity to set out ― quite explicitly ― its position regarding the requirement of a high- school diploma as a job qualification criterion.

While you’re likely familiar with the EEOC’s approach, we believe you may want to revisit your hiring criteria in light of the agency’s recent guidance. These points are of particular importance.

• Under the ADA, a qualification standard, test, or other selection criterion (e.g., requiring a high-school diploma) that screens out an individual or a class of individuals on the basis of disability must be job-related for the position in question and consistent with business necessity. A qualification standard is job-related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions.

• Even when a challenged qualification standard, test, or other selection criterion is job-related and consistent with business necessity, if it screens out an individual on the basis of disability, you must also demonstrate that the standard or criterion cannot be met and the job cannot be performed with a reasonable accommodation.

• If you require a high-school diploma for a job and the requirement screens out an individual who is unable to graduate because of a learning disorder that meets the ADA’s definition of “disability,” you may not apply the standard unless you can show that the diploma requirement is job-related and consistent with business necessity. However, you will not be able to make that showing if, for example, the functions in question can easily be performed by someone who does not have a diploma.

• Even if the diploma requirement is job-related and consistent with business necessity, you may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job with or without a reasonable accommodation. You may do so by, for example, considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process.

• If an individual can perform the job’s essential functions with or without a reasonable accommodation despite the inability to meet the diploma requirement, you may not use the requirement to exclude the applicant.

• You are not required to favor an applicant with a learning disability over other applicants who are better qualified.

The informal discussion letter was posted on the EEOC’s website on December 2, 2011, and is available at www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_ standards.html.

Bottom Line

While the EEOC notes in the posted letter that its response is an informal discussion of the issues and shouldn’t be considered an official opinion of the agency, prudent employers would be well advised to be mindful of these standards and the EEOC’s analysis when (1) evaluating the use of qualification standards or criteria for a position and (2) using those standards or criteria to exclude an applicant from employment.

Jeanine Poole is a partner with Sulloway & Hollis, P.L.L.C. in the firm’s Concord, New Hampshire, office and an editor of New Hampshire Employment Law Letter. She may be contacted at jpoole@sulloway.com.

• According to the 2010 Census, 157.0 million females lived in the United States at the time. The number of males was 151.8 million. At 85 and older, there were more than twice as many women as men.

• In 2010, there were about 71.9 million women 16 and older who participated in the labor force. Of those women, 40.6% worked in management, professional and related occupations, compared with 34.2 % of employed males.

• In 2010, the median annual earnings of women 15 or older who worked year-round was $36,931 , unchanged from 2009.

• In 2010, there were 30.7 million women 25 and older with a bachelor’s degree. Women had a larger share of high school diplomas (including equivalents), as well as associate, bachelor’s and master’s degrees. More men than women had a professional or doctoral degree.

• In 2007, there were 7.8 million women-owned businesses. Those businesses employed 7.5 million people and brought in $1.2 trillion in revenue.

• There are am estimated 85.4 million mothers of all ages in the United States.

• As of Sept. 30, 2010, there were 205,500 active duty women in the military. Of that total, 38,700 women were officers, and 166,800 were enlisted.

We have eliminated many forms of workplace discrimination and made great strides toward erasing others. Nonetheless, one form of discrimination ― “Beauty Bias,” as coined by Stanford Law Professor Deborah Rhode ― remains alive, well, and possibly inherent in the human condition.

When babies are shown pictures of adults, they usually reach for the most attractive faces. That bias continues through life. A 1994 study showed that nine percent of working men described by observers as “homely” received nine percent less than average earnings, while 32 percent of the most “handsome” men earned five percent above the average. The most attractive women earned four percent more than average, and the least attractive earned five percent less than average. A study of law school graduates showed that after 15 years of practice, good looks added over $10,000 per year in income.

The same pattern holds true for height and weight. The heaviest 10 percent of girls holding their first jobs earned 7.5 percent less than average, while boys gained two percent in income for each four-inch difference in height. The New England Journal of Medicine agrees that short men earn $3,000 per year less than colleagues who are a foot taller.

While these patterns appear to be universal, one can be trained to mitigate them. When managers were shown four photos of women and asked to pick the one “most likely to become a Vice President,” the most attractive photo was selected by 73 percent of new managers, 65 percent of those moderately experienced, and 47 percent of highly experienced managers. With training, the bias can be minimized.

Is appearance discrimination illegal? It might violate several current laws. If you favor attractive people out of romantic desire, it could constitute sex discrimination. If your idea of “attractive” is a Caucasian face, that preference could constitute race or national origin discrimination. Antipathy toward the obese could violate disability discrimination law, and if youthful appearance attracts you in a job candidate, it could constitute actionable age discrimination.

There Ought to Be a Law?

Now the state of Michigan and six localities  have express laws against appearance discrimination. These ordinances ban employment discrimination based on all ordinary categories and add a prohibition against discrimination based on “height, weight or physical characteristics.” Santa Cruz defines “physical appearance” to include any “bodily condition or characteristics . . . outside the control of that person, including physical mannerisms.” The good news is that tattoos and piercings apparently aren’t protected by the law.

Rhode says this law will prevent nightclubs from demanding that hostesses wear makeup. It would protect people like the two Atlantic City Casino waitresses who agreed in their employment contracts to maintain a height- and-weight-appropriate hourglass figure. It should protect strong fat people seeking work in 24-hour fitness locations, eliminating what Rhode calls “the injustices of appearance.”

Conversely, the law could protect erstwhile Citibank employee Debralee Lorenzana, whose lawsuit says she was fired because her good looks were deemed “too distracting” for the office. That dispute is reportedly now in arbitration.

Can laws negate a universal predilection in favor of the physically attractive? Rhode says yes, arguing that “the most effective way of combating prejudice is to deprive people of the option to indulge in it.” She notes that segregated schools were once the accepted norm but that as the law changed, so did the practice. Similarly, until gay rights were codified, most Americans accepted gay discrimination.

Uncertainties behind this theory abound. Would a plaintiff have to plead and prove unattractiveness? Will “not homely enough” become a legal defense? Will discriminatory bosses who favor petite men or zaftig women get a free pass? Will “attractiveness” be decided through the eyes of the jury or expert witnesses? Will plaintiffs’ lawyers adorn their clients in burlap and sweat suits to accentuate their plainness?

Appearances can be deceiving. Will they create a new protected class as well?

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at schickman@freelandlaw.com.

Q: Our company is considering implementing a policy that would make individuals who smoke ineligible for employment. In doing so, we would save a substantial amount of money on our insurance premiums. Can we do this? If so, how do we monitor employees who claim they have quit smoking?

A: Many industries are implementing or considering “no-smokers” policies. Basically, the premise is that insurance companies are lowering their premiums for companies that have policies prohibiting employees from smoking. However, these are not your typical “no-smoking- in-the-workplace” policies. These policies prohibit employees from smoking ― period, regardless of whether they’re on the job. In addition to lowering health insurance premiums, many employers argue that hiring smokers increases production costs because of smoke breaks and high absenteeism from smoking-related illnesses.

In addition to prohibiting the hiring of smokers altogether, there’s a trend toward charging smokers higher premiums for their health insurance. The hope is that doing so will motivate workers to stop smoking on their own, thus lowering health care costs.

While state and federal law prohibits discrimination in hiring based on a number of protected characteristics, in most jurisdictions, refusing to hire smokers doesn’t constitute unlawful discrimination. Several states allow employers to screen job applicants for signs of smoking. Some employee groups, however, are prepared to argue that off-duty smoking bans violate the federal Employee Retirement Income Security Act because they interfere with the attainment of a right under a benefit plan ― the right to health benefits.

The most common way to monitor whether employees and applicants smoke outside of work is use standard, random, or preemployment drug tests to test for nicotine. Employers should be aware, however, that small concentrations of nicotine metabolites may be found in the saliva or urine of nonsmokers who have been exposed to tobacco smoke for several hours. The same is true of someone who is using smoking-cessation products such as a nicotine patch or nicotine gum.

Thus, in addition to banning smokers from the workplace, a no-smoking incentive may also ban individuals who are trying to quit smoking or who regularly associate with smokers and, consequently, are exposed to secondhand smoke. While that may detract from the argument for banning smokers from the workplace, the fact that nonsmokers involuntarily assimilate the same chemicals from smoke-contaminated air as smokers do by smoking has been cited as another reason for maintaining a tobacco- free work environment.

It is against that backdrop that no-smokers policies are being implemented. Most employers use some sort of “grandfather” clause to retain current employees who smoke. The emphasis, therefore, is on applicants and new hires. Unless preemployment drug screens are used, applicants will have to be taken at their word. Enrollment forms for health plans and life insurance benefits typically will contain a request for information on smoking habits, and failure to respond truthfully may result in a denial of benefits or even withdrawal of the employment offer. In addition, insurance benefits could be denied if a new employee refuses to submit to a urine or saliva test as a prerequisite of obtaining benefits.

If your company is inclined to implement a no-smokers policy, then you should, at the very least, precede its implementation with the dissemination of information to employees about what you’re trying to accomplish and why. If your workforce is unionized, it would be best to get the buy-in from the union as well. If the program is implemented in a way that protects the jobs of current employees who smoke and the terms of the policy are made clear to new hires, it just might take off without too much “smoke”!

Susan Hartmus Hiser is a shareholder with Vercruysse Murray & Calzone, P.C in Bingham Farms, Michigan, and a contributor to Michigan Employment Law Letter. She may be contacted at shiser@vmclaw.com.