Week 4: ADA, FMLA and Affirmative Action

1. Week 4: ADA, FMLA and Affirmative Action Agenda for Today • Discuss major aspects of ADA and FMLA legislation • Discuss the purpose of Affirmative action programs • Highlight key reverse discrimination cases • Understand Equal Employment Opportunity compliance, records and investigation • In-class activities: • Debate the pros and cons of Affirmative Action • Watch the Primetime video

2. Current Status of Disabled Workers in America • 54 million disabled people in United States • About 70% unemployed • 32% disabled people of working age work full time compared to 81% of non-disabled people • More than two-thirds of unemployed and disabled prefer to work • Employment and earnings for disabled workers fell in the last 10 years while rest of the workforce enjoyed the economic boom. Data from SHRM 2001

3. Americans With Disabilities Act – ADA (1990) • ADA built upon Vocational Rehabilitation Act (1973) • Covers all employers with 15+ employees, including employment agencies • Title 1 of ADA prohibits discrimination against disabled workers who can perform essential job functions • “Disabled” is defined as meeting one or more criteria: • Physical or mental impairments that substantially limits one or more major life activities (Toyota Motor Mfg. v. Williams, 2002) • Person who has a record of such an impairment • Person who is regarded as having such an impairment

4. What is Covered Under ADA? • Physical impairments • Mental illness/disabilities • Life-threatening illnesses (cancer, HIV, AIDS) • Impairments related to thinking, concentrating, or interacting with others (e.g., learning disabilities) • Rehabilitated drug users and alcoholics • Individuals with major muscular limitations or breathing difficulties (e.g., Parkinson’s disease) • EXCLUSIONS: current users of illegal drugs, gender-identity disorders not resulting from physical impairment or other sexual behavior disorders, compulsive gamblers, homosexuality or bisexuality, normal deviations in height and weight, pregnancy, physical characteristics

5. ADA and Essential Job Functions • Cannot discriminate against individuals able to perform essential job functions. • A Job Function may be considered Essential when: • The job exists primarily for that specific function, • Limited number of employees are available amongst whom the performance of that job function can be distributed, • Function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function, • Employee must actually perform that function, • Removal of the function would fundamentally alter the job. • Functions should be identified in the job descriptions and job specifications • Marginal functions are job duties that are required only of some employees or are not critical to job performance.

6. ADA: Reasonable Accommodations and Undue Hardships • Employers are required to make reasonable accommodation for a qualified individual with a known physical or mental disability unless it would impose undue hardship. • Examples of Accommodation: modified work schedules, job restructuring, reassignment to vacant position, changed supervisory methods, assistive technology, modified training & testing materials, unpaid leave to receive treatment, readers.. • Undue Hardship: cost of accommodation relative to financial resources, employer size, effect on other employees, & normal business operations • Exemption: Individuals who pose a direct threat to the health or safety of themselves or others at work.

7. ADA: Reasonable Accommodation (contd.) • Employer may not: • Inquire about disability in hiring interview • Use non-valid tests with adverse impact • Limit advancement opportunity or other conditions of employment (e.g., training) • Employers can turn away people who want a job even if they risk their lives to do it (Chevron v. Echzabal, 2002) • Preemployment medical exams prohibited except after an offer is made; offer is conditional upon passing a physical exam • If exam screens out, exclusionary criterion must be job related and consistent with business necessity • Confirm that criterion cannot be satisfied and essential job functions cannot be performed with reasonable accommodation

8. ADA and Genetic Testing • EEOC sued Burlington Northern Corp. (Santa Fe division) for conducting secret genetic tests on workers who filed carpal tunnel syndrome claims. • Issues: • How much information about a worker’s health and his or her family’s medical history are employers entitled to know? • How should employers use this information? • How should this information be safeguarded? • What if there is a potential workplace hazard that puts some people at additional risk for injury or disease because of their genetic make-up?

9. Regulations Regarding Genetic Testing • No federal legislation or regulations that restrict genetic testing or use of this personal information • Genetic irregularities uncovered as part of the test, if found to substantially impair major life activity, may be protected under the ADA • At least 21 states (including Wisconsin) prohibit or limit genetic testing as a matter of law: except to determine an employees’ susceptibility or level of exposure to potentially toxic chemicals in workplace. • Many states also prohibit discrimination and employment decisions made on the basis of genetic information

10. Family and Medical Leave Act (FMLA) 1993 • Covers organizations with 50 or more employees • Who is Eligible? • Male and female employees • Employed 12 months and 1,250 hours in the previous year • Employees may take a total of 12 weeks leave during any 12 month period for: • Birth, adoption, or foster-care placement of child • Caring for spouse, child or parent with serious health condition • Serious health condition of employee: • Serious health condition requires inpatient, hospital care or continuing physician care

11. FMLA: What is Serious Health Condition? • DOL regulation defines serious health condition under FMLA as one that includes: • A period of incapacity of more than 3 consecutive days • Involves treatment 2 or more times by a health care provider OR • Treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the health care provider • In Miller v. AT&T Corp. (2001) influenza was considered a serious health condition; the ruling by the appellate court expanded the coverage of FMLA to certain conditions as flu.

12. FMLA (Contd.) • Employees may substitute accrued paid (vacations/sick days) for unpaid leave • Leave may be intermittent, rather than one block • Employees must give 30-day notice where practical • Employees on leave must be able to return to same job or job with equivalent status and pay • Health benefits must continue during leave • Husbands and wives working for the same employer can take only a combined total of 12 weeks of leave during a 12 month period for certain situations, such as birth of child.

13. Affirmative Action Programs • Affirmative Action programs required for federal contractors and subcontractors with contracts of $2,500+ • EO 11246 stated that organizations with govt. contracts over $50,000 and 50+ employees must establish AA plans • EO requires organizations to: • Agree not to discriminate • Take specific actions to improve opportunities for women and minorities • Established OFCCP – Office of Federal Contracts Compliance Programs that administers AA programs

14. Purpose of Affirmative Action Programs • Purpose is to compensate for past discrimination • Features of AA programs: • Increase pool of minority applicants • Recruitment and training • Make organizations more attractive to minorities • Placement in upwardly mobile positions • Remove obstacles to advancement • Attitudinal change • Goals and timetables for achieving above goals • Preferential treatment of minorities • Affirmative Action does not automatically mean quotas (except in cases of consent decrees)

15. Best way to achieve fair employment is to make decisions without regard to: Race Sex Religion National Origin Color Age Disability Best way to achieve fair employment is to make decisions, at least in part, on the basis of: Race Sex Religion National Origin Color Age Disability Competing Strategies for Fair Employment Ideal Behavior Strategy Affirmative Action Strategy Goal: Fair Employment

16. Landmark Reverse Discrimination Cases • Weber v. Kaiser Aluminum (1976) • AA program reserved 50% of openings in training program for African-Americans • Resulted in junior black employees getting preferential treatment over senior white employees • Supreme Court supported quotas because: • Plan was temporary • Plan did not have extreme negative effect on majority or involve discharge of innocent third parties • Intended to eliminate previous injustice • Piscataway Township v. Taxman (1996): White teacher laid off instead of Black teacher who was similarly qualified and held same seniority. Cited Weber case--AA plan violated #2 & 3; diversity insufficient justification and not a compelling interest for AA.

17. Reverse Discrimination Cases (contd.) • Bakke v. Regents of University of California (1978) • UC Davis medical school had special set aside program for disadvantaged applicants. No prior discrimination • Accepted less qualified applicants than Bakke • Supreme Court struck down quotas • University may use race as a factor in admissions to increase diversity, but cannot use quotas in absence of prior discrimination • Hopwood v. State of Texas (1996): Supreme Court struck down the use of separate lists & test scoring for minority & majority law school applicants: no evidence of prior discrimination; diversity is not a compelling interest by which race conscious admission practices can be justified. • Adarand Constructors v. Pena (1995): Supreme Court ruled that set-aside programs for govt. contracts must be based on redressing past discrimination. Currently back in SC.

18. Supreme Court’s Ground Rules for Affirmative Action Plans (Marlow and Rowland, 1989) • Affirmative Action Programs should: • Avoid rigid quotas • Be carefully tailored to remedy past and precise discrimination • Be temporary in duration, and • Should not unnecessarily restrict the rights of majority employees • Supreme Court specified that racial classifications: • must serve a compelling state interest • Must be narrowly tailored to serve that interest (i.e., if a more race-neutral means is available, program may be struck down)

19. Equal Employment Opportunity Compliance (EEOC) • Independent agency established by Civil Rights Act of 1964. 5 members appointed by President & approved by Senate • Investigates discrimination complaints • May act as employees attorney and sue organizations • Interprets court cases and legislation; publishes guidelines • OFCCP (Office of Federal Contracts Compliance Programs) – Dept. of Labor agency – works with federal contractors and subcontractors on non discrimination and affirmative action

20. EEO Records • Employers with 100 or more employees and Federal contractors with 50 employees and contracts of $50,000+ must submit EEO-1 report form annually • Report details employees’ job category by protected class. • Must keep all personnel records (hiring, promotion, compensation, termination etc.) for 6 months (3 years recommended)

21. EEOC Investigation • Employee must file charge within 180 days of alleged discriminatory conduct • EEOC reviews charge, determines jurisdiction (authorized to investigate) • Notice given to employer within 10 days of filing • EEOC investigates complaint • If charge valid, conciliation meeting arranged • Employer admits discrimination: posts notice of relief and takes action • Employer rejects: EEOC issues “Rights to Sue Letter” notifying employee that s/he has 90 days to file personal suit in federal court. EEOC may also take on case.

22. Court Procedures • Employee/Plaintiff proves prima facie case (McDonnell Douglas v. Green, 1973) • Plaintiff is member of protected class • Disparate impact or treatment existed: • Applied for job and rejected. Employer continued to seek other applicants after rejection. • Adverse treatment: plaintiff more qualified for position than person hired • Adverse impact: 4/5ths rule • Burden of proof switches to employer: Rebutting a prima facie case-- • Employee lacked BFOQ • Adverse treatment: Business related, nondiscriminatory reason for not hiring plaintiff • Adverse impact: procedure is job-related; business necessity

23. Management’s Response • Take control of EEO activities • Collect regular information; conduct self-analysis • Develop clear policies • Display EEO policies prominently – communication is key • Make Procedures Objective and Job Related • Develop grievance procedures • Act Affirmatively • Avoid quota systems when no evidence of past discrimination exists • Develop plans that do not require discharge or majority workers • Avoid setting minority quotas of greater than 50% • Develop plans that are temporary; end it once negative effects of past discrimination are corrected.