Disability Discrimination

EEOC Offers “Guidance” on Mental Health Conditions in the Workplace

EEOC Offers “Guidance” on Mental Health Conditions in the Workplace

Accommodating an employee’s mental health condition often challenges employers.  The EEOC recently offered guidance for employees who have a mental health condition under the Americans with Disabilities Act of 1990 (“ADA”).  Employers take note.  The EEOC (and private plaintiff’s counsel) may hold employers to its guidance.

Punitive Damages Are Preventable

Six-figures.  That's what a rogue manager can cost you in punitive damages if he accidentally blows a call that HR would have caught.  It's surprisingly easy for an untrained manager to step in it.  We've written about a couple examples.

Don't add zeros to an employment claim.

Train your folks on your EEO and anti-harassment policy.  Training, plus a solid EEO and anti-harassment policy, may give you a strong defense against punitive damages.

Never training your employees on your EEO policy strips your defense.  In EEOC v. Service Temps, the company had never trained its folks.  The EEOC latched onto that.  At trial, the EEOC secured $68,000 in punitive damages and an injunction that imposed mandatory training.  The Fifth Circuit refused to overturn the award.

Punitive damages are no stranger to the Texas Supreme Court too.  In Safeshred v. Martinez, the Court expanded punitive damages to Sabine Pilot wrongful discharge claims.  Some commentators say the opinion lets Texas state discrimination law plaintiffs collect punitive damages more easily.

Over the past couple years, your company may have pushed training to the backburner.  The Fifth Circuit and Texas Supreme Court may have just sent you a friendly reminder to put training back on the agenda.

Texas Lawyer — Behind Enemy Lines: Employee-Side Lawyer Tactics

Texas Lawyer — Behind Enemy Lines: Employee-Side Lawyer Tactics

Texas Lawyer has signed up Alan Bush as a freelance contributor.  His latest article, "Behind Enemy Lines: Employee-Side Lawyer Tactics," appeared on May 14 in the In-House Texas pullout.

Here's what Alan had to say about how he stays one step ahead of employee-side opposing counsel:

New ADA, Old Fundamentals

Hands down, the recent amendments to the Americans with Disabilities Act (ADA) are game changing.  Many more folks now meet the ADA's broadly expanded definition of having a "disability."  But what should we do about it?

There's clearly a threat.  In Norton v. Assisted Living Concepts, a federal court in Texas just ruled that renal cancer qualified as an actual disability, even though the cancer was in remission.  New EEOC regulations say that other medical conditions "should easily" qualify as disabilities.  For example, the EEOC's hit list includes fairly common medical conditions like diabetes, multiple sclerosis, major depressive disorder, bipolar disorder and post-traumatic stress disorder.

Before the ADA amendments, these medical conditions may not have qualified as a "disability."  Now they probably do.

The kicker is reasonable accommodation.  According to the ADA, you must discuss how to reasonably accommodate an employee's actual disability if she asks for an accommodation.  And you may have to talk reasonable accommodations if the disability is obvious and will presumably affect job performance.

Time to go back to school on an old fundamental—dealing with reasonable accommodation requests.  You'll see more of them.

Here's your worst case scenario.  An employee with diabetes asks her supervisor for extra breaks to regulate her blood sugar.  Thinking the request is bogus or exaggerated, the supervisor completely ignores the request.  Maybe he even snaps off an immediate "no."  HR never hears a word about it.  Not long after that, the supervisor fires the employee.  Congratulations, you probably just bought an ADA lawsuit.

This is an awareness issue.  Make sure your supervisors and managers know that many medical conditions could qualify as disabilities.  Train them to take any request dealing with a medical condition immediately to HR. Confirm that your reasonable accommodation policy makes HR the lead point of contact.  Educate your employees about your policy.  Bring HR up to speed on cutting edge techniques to discuss and document dialogue about a reasonable accommodation.

Written performance documentation is also key.  An employee who knows he's been performing poorly may ask for a reasonable accommodation to buy some protection.  I hope you'd been documenting his performance problems.  If not, it can get risky to terminate or start disciplining him right then.

Harassment Complaints in Houston Double

The EEOC's Houston office recently told KHOU that its annual number of new harassment complaints has doubled since 2005.  KHOU wrote an article about it.  Notice how the on-line article has a hyperlink to "How to file a charge with the EEOC." What do you think caused the increase in harassment complaints?  More harassment?  More dollars cranked into the EEOC's budget for investigators and publicity?

Arbitration Policies: Worth a double-check

Plaintiffs' lawyers usually hate arbitration.  That's why some companies have arbitration policies for employee disputes--thin the ranks of lawyers willing to sue.  The trick is writing your arbitration policy so that it's enforceable.

In Datamark, an employee challenged her employer's arbitration policy because it had a huge hole.  It was written so that the company could back out of its promise to arbitrate disputes by changing or revoking the policy just before an employee filed a claim.  The policy even said the company could revoke or change it at any time without notifying employees.  Worse still, these changes would apply to all employee disputes going forward.  Good argument under Texas law.

The Texas court of appeals sided with the employee.  The company had banked on its arbitration policy to put the dispute in front of a neutral arbitrator.  Instead, the company got stuck with an employee-friendly El Paso jury.  And it was on a pregnancy discrimination claim to boot.

A few tweaks to the policy would have landed the employee in arbitration.  Back in 2002, the Texas Supreme Court approved of Halliburton's arbitration policy that let the company revoke or change it.  The difference is that Halliburton's policy promised to give employees ten days' written notice of any changes.  Any claims filed during those ten days would be resolved using the old policy.  Halliburton got it right; so can everybody else.

The EEOC Can Spoil Your Trial Years Later

An EEOC investigation can't force a company to pay a complaining employee, but can hurt your defense at trial.  The EEOC can end its investigation by writing a nasty determination letter which says your company is probably guilty of discrimination.  And juries eat it up.

An ex-employee who had an EEOC determination letter recently struck gold at trial.  In Texas Department of Public Safety v. Williams, the jury awarded the ex-employee $619,801.  Ouch!  On appeal, the DPS tried to overturn the award because the trial judge let the EEOC determination letter into evidence.  Texas courts first presume that a jury should see a determination letter.  To exclude a letter, an employer must show that it contains only bald conclusions.  No such luck for the DPS here.  The letter had enough details about the EEOC's investigation and evidence to satisfy the court of appeals.

Think carefully about how you handle EEOC investigations.  You can feel the consequences years later in front of a jury.