Discrimination against breastfeeding employee leads to jury verdict

January 14, 2018 0 COMMENTS

by Rozlyn Fulgoni-Britton

With the passage of the Affordable Care Act (ACA), federal law required employers with more than 50 employees to provide breastfeeding employees a private location, other than a toilet stall, where they can express breastmilk in privacya. And, of course, the Pregnancy Discrimination Act (PDA) has prohibited discrimination “on the basis of pregnancy, childbirth, or related medical conditions” since 1978. Despite those laws, court cases explaining employers’ duties to accommodate breastfeeding employees have been few and far between. In Hicks v. City of Tuscaloosa, Alabama, the U.S. 11th Circuit Court of Appeals provided guidance about employers’ responsibilities to breastfeeding employees.   ???????????????????????????????????????????????????????????

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ADA interactive process: When does your obligation to engage begin?

January 15, 2017 0 COMMENTS

by Susan Hartmus Hiser

Q We have an employee whose work performance has been slipping lately. We have reason to believe that she is suffering from depression because she was diagnosed as bipolar and had a bout of depression a few years ago that led to a similar decline in her work performance. We allowed her to work a modified schedule for a brief period while she was being treated by her therapist. She hasn’t requested another accommodation recently. Can we discipline her, up to and including termination, based on her performance, or do we need to take steps to address her depression under the Americans with Disabilities Act (ADA)?   depressed businessman at office working on computer asking for help

A Both the ADA and many state laws place the initial burden on the employee to inform her employer of a need for an accommodation. However, in the situation you describe, given the employee’s history of depression and her attendant performance issues, a court could find that your company was on notice of her need for an accommodation, even though she didn’t request one. That’s particularly true since she required an accommodation to address her performance issues the last time she had a bout with depression. When an employer has knowledge of an employee’s disability, she need not use the word “accommodation” to trigger the ADA obligation of engaging in the interactive process.

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