Yesterday, we presented attorney Jathan Janove’s suggestions for dealing with employees who say, “My aberrant behavior was caused by my disability.” Today, we’ll give you more of his tips—plus an introduction to an upcoming California-specific ADA/FEHA training session.
When you have to move forward with discipline, says Janove, the first thing is to always couch it in positive terms. Make an employee an offer to improve, says Janove.
For example, you might issue a “Notice and Opportunity to Improve.” This document should focus on the opportunity to improve but should clearly warn of the consequences for not improving.
Janove is a managing shareholder at the law firm of Ogletree Deakins, PC. His suggestions came at a past SHRM conference.
Consistency Part of Due Process
When faced with an employee who says his or her misbehavior was caused by a disability, the EEOC says that the company may still discipline as long as the rule violated is shown to be job-related and necessary for the conduct of the business. That is, it can’t be a frivolous, casual, or silly rule.
However, satisfying those EEOC guidelines is not going to be enough if the actions you take against the employee aren’t consistent with your actions against other employees, Janove warns.
Consistency is the missing ingredient that many HR managers forget about until it’s too late, says Janove.
For example, if you discipline an employee for swearing and yelling, and the person claims that “It was because of my disability,” you’ll lose out if you’ve tolerated similar behavior from other employees.
And then there’s consistency’s partner—nondiscrimination. Presumably, if you treat people consistently, you’ll also be acting in a nondiscriminatory manner, but it’s a good idea to look at the situation from another perspective. Am I treating employees in X protected status the same as I treat employees in Y and Z statuses?
Do a Consistency Review
So, says Janove, always make a consistency review part of HR’s work in preparing discipline. Do you have a consistent track record of discipline for this offense? Could your action be perceived as discrimination? Also review policies, contracts, and personnel documents to be sure the action is appropriate, he says.
Everything you need to know about the ADA and FEHA in California—in a single day of learning. Learn more.
When Collective Bargaining Is Involved
What about when an employee says his outrageous behavior is excused, not by a disability, but by his union status? Janove points to one case in which there was to be a temporary layoff—a mandatory unpaid vacation—while the company completed moving to a new facility.
One worker was, to say the least, outspoken. He verbally attacked a female manager, shouting that the layoff was illegal and immoral, and he unloaded with four-letter words. Later he bragged about how he “showed her” and put her in her place.
An administrative law judge held that the worker had gone beyond the scope of protected activity for union members. His union rights did not excuse foul language directed at the manager in front of her employees. The court found the bragging to be undermining and unnecessary to protected activity.
However, says Janove, that decision was reversed, and then a higher court reversed again—showing how tricky these cases are.
2014 ADA Master Class: An Advanced Interactive Workshop for California Employers
Coming to Los Angeles: Thursday, February 6, 2014
The ADA Amendments Act (ADAAA) and EEOC regulations have dramatically expanded the definition of a "disability." And employers are struggling to understand the scope of their obligations under the ADA now that virtually anyone can claim he or she has a covered disability.
Plus, in California, sweeping new disability discrimination regulations under the state Fair Employment and Housing Act (FEHA) took effect at the end of 2012. Many employers (and you may well be one of them) are still struggling to figure out precisely what these mean for their workplace.
The bottom line? It is now significantly easier for employees—under both state and federal law—to take advantage of the protections offered by the ADA and FEHA.
The enforcement focus is no longer whether an employee with a medical condition is considered “disabled,” as most are. Your new marching orders are to prevent discrimination and accommodate disabilities.
Now there’s help for the ADA- and FEHA-frustrated: The 2014 ADA Master Class for Employers. Invest just 1 day to become even more proficient in ADA/FEHA administration and handle top management’s and your employees’ questions with even greater confidence.
You’ll get the very latest compliance tactics, and you’ll enhance your advanced practitioner skill set when you attend this satisfaction-guaranteed event. Master Classes also qualify for continuing education credits.
You’ll learn:
- The impact of the ADA and its amendments on employers
- What the recent sweeping changes to FEHA mean to you as a California employer
- How to get ahead of a claim by making those difficult coverage calls
- Best practices to satisfy your obligation to reasonably accommodate an employee with a covered disability
- How “interactive” the interactive process requires you to be
- Tips for navigating through ADA/FEHA, FMLA/CFRA, and workers’ comp
- Practical solutions for working within boundaries of the law without going overboard
- And much, much more …
Conference Details
Continental breakfast and registration begin at 7:30 a.m. The program begins at 8:30 a.m. and concludes at 4:30 p.m. There will be morning and afternoon breaks, and registrants will be on their own for lunch.
Master ADA/FEHA administration in just 1 day by participating in this all-new program created just for California employers and HR management.
Don’t miss it—claim your spot today! For more details, click here.
Download your copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!
Love the idea of “Opportunity to Improve”!