New mental disorders could lead to spike in ADA claims

by Lisa Berg

What do forgetfulness, menstrual cramps, and social awkwardness have in common? They’re all symptoms of new mental health disorders recognized in the latest version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which is published by the American Psychiatric Association (APA).  MentalDisorders

The DSM-5 is widely used by healthcare professionals to assess and diagnose mental disorders. The practical translation: More employees may qualify for protection under the Americans with Disabilities Act (ADA) than ever before, which means employers must be ready to address issues of mental disability accommodation. This article examines the challenges you face in assessing the new mental disorders and determining whether they constitute a mental disability under the ADA for a particular employee.

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The perils of firing an older, long-tenured worker

by Jonathan C. Sterling

Q We have an employee over age 65 who has been a manager for over 40 years and has excellent evaluations in his file. Recently we have learned that his department is possibly committing fraud in their documentation of paperwork.FiredOlderWorker He doesn’t abide by company policy, doesn’t meet deadlines, and has been written up one time for sexual harassment. Can we terminate him without fearing a wrongful termination lawsuit?

A The fact is, there is often nothing you can do to avoid a wrongful termination claim. The real question is whether the termination is defensible in a legal proceeding. It sounds like you have legitimate nondiscriminatory reasons that justify the employee’s termination. Make sure you have meaningfully investigated each of his transgressions and the results are well documented. It is equally important that you treat the employee the same way you treat other workers who engage in similar misconduct. If other employees in the department engaged in the same conduct, they should be subject to the same punishment. If you have done those things, you should have a solid defense to a lawsuit.

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Supreme Court addresses, upholds state bans on affirmative action

July 20, 2014 - by: Diversity Insight 0 COMMENTS

By Holly K. Jones

In a recent U.S. Supreme Court ruling, the court upheld a controversial ban on the use of affirmative action in public education, employment, and contracts in the state of Michigan. For details on the decision and whether it affects your business, read on.  AffirmativeAction

Background

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Perception is reality when it comes to disabilities

by Cathleen S. Yonahara

An employee was placed on paid leave because of his medical symptoms. When he was subsequently fired, he sued for disability discrimination. The employer prevailed at the trial court level but lost before the appellate court. The crux of the case was whether the employer “regarded” the employee as disabled even though he didn’t have an actual disability.  ToxicLeadWire

Employee placed on leave because of lead toxicity

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Win-win: Eldercare support helps employees, employers alike

June 15, 2014 - by: Tammy Binford 0 COMMENTS

No matter how devoted to the job employees may be, their lives extend beyond the workplace. And an increasing number of employees are finding that their non-work responsibilities include eldercare.  Eldercare

The U.S. Bureau of Labor Statistics reported in September 2013 that 39.6 million people were providing unpaid eldercare in 2011-2012. Many of those caregivers were part of what’s been termed the “sandwich generation” because they find themselves sandwiched between two generations requiring care: their children as well as their parents.

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A Sterling reputation tarnished

by Kylie Crawford TenBrook, Best Western International, Inc.

In April, recordings of Los Angeles Clippers owner Donald Sterling making racist remarks to his half-black, half-Mexican girlfriend assistant* surfaced. Among those remarks were the following:

It bothers me a lot that you want to broadcast that you’re associating with black people. Do you have to?DonaldSterling

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50 ways to list your lover

by Mark I. Schickman

Anyone who has filled out EEO-1 forms knows the challenge of fitting humans into demographic boxes. People’s backgrounds and orientations often defy ready definition, leaving you to your best guess under the circumstances. Facebook has the same problem since checking demographic boxes can be confusing or challenging for users. It has long had the “it’s complicated” box, which acts as shorthand for a relationship status with a difficult definition, but that isn’t specific enough to cover the broad scope of Facebook users’ relationships.  Gender Idenitity Chart

In terms of sexual identity, we started with the term “gay,” moved to “gay and lesbian,” and then to “LGBT,” which added bisexual and transgendered. Then came “Q” and “I.” (Ask different people, and you’ll get different answers about what those letters stand for.) Facebook has now opened the self-description gates wide with more than 50 terms that describe sexual identity. Among the heretofore less frequently used terms are androgynous, pangender, transperson, and gender-fluid.

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Alcohol abuser creates dilemma for employer

by Caren W. Stanley

Q We have an employee in a high-risk, safety-sensitive position who recently admitted to extreme alcohol abuse. We are now concerned that he, his colleagues, and our company are at risk because we can’t depend on his work. We’d like to discharge him, but we’re unsure of the legal risks.  DrinkingAtWork

A Unfortunately, this is a common dilemma faced by many employers. The initial question you must ask yourself is whether you are required to provide the employee leave for treatment. Recall that the Americans with Disabilities Act (ADA) prohibits employment discrimination against “qualified individuals with disabilities.” An individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

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Rude isn’t racist: Supervisor’s alleged poor treatment doesn’t amount to discrimination

by Carrie Pond

A Kentucky federal court recently dismissed a claim of hostile work environment racial harassment because the employee failed to show the harassment was race-based. Despite allegations that, if believed, demonstrated the employee’s supervisor “treated [her] very badly,” she failed to establish that the treatment was racially motivated.   Racist Supervisor

Facts

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Are microaggressions a new legal threat in the workplace?

May 18, 2014 - by: Tammy Binford 2 COMMENTS

by Tammy Binford

An April gathering that brought together President Barack Obama, three former presidents, and civil rights leaders marked the 50th anniversary of the Civil Rights Act of 1964, a game-changing law that still guards against discrimination in the workplace and other aspects of life. The impetus for the Act was the kind of blatant bigotry responsible for mistreatment of racial and religious minorities as well as women. The Civil Rights Act has made strides against flagrant abuse, but concern over a more subtle kind of bias is now coming to light: damage caused by “microaggressions.”  Microaggression

Microaggressions aren’t like old-style, overt racism and other forms of bigotry. Instead, more understated insultssuch as praising an African-American employee for being articulate or admiring a Latino’s lack of an accentare raising questions. These comments and actions are what a recent college graduate quoted in a March New York Times article called “racism 2.0.”

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