ADA's Association Provision is Focus of Litigation

On February 27th the 7th U.S. Circuit Court of Appeals (covering IL, IN and WI) found an employer violated the ADA when it fired an employee whose spouse who was undergoing expensive medical treatments. Dewitt v. Proctor Hospital.  In short, the employee had what appeared to be a stellar work history.  Her last performance appraisal indicated she was "outstanding." Simultaneously, the employee's spouse was diagnosed with cancer and undergoing radiation and chemotherapy treatments.

The employer, which was partially self-insured for its health insurance benefits, received quarterly "stop-loss" reports from the Plan Administrator that identified employees who had incurred more than $25,000 in medical expenses.  When this employee appeared on the report with costs over $177,000 the employee's supervisor asked what treatment her husband was receiving, if the employee had considered hospice care for her husband as a less expensive alternative, and commented that a committee was going to review the expenses which were "unusually high."  Five months later the supervisor again asked the employee about her husband's treatments and if anything had changed.  They had not. 

Three months later the supervisor had a staff meeting and announced that the institution was undergoing some financial difficulty and would have to cut costs. Finally, three months after that meeting the "outstanding" employee was fired and designated "ineligible to be rehired in the future."  Based on this evidence the court found that a "reasonable jury could conclude that Proctor retaliated against Dewitt" and remanded the case to the district court, which had previously entered summary judgment in favor of the employer. 

Trends. Even the court in this case referenced the ADA's association provision as "infrequently litigated."  It has also gained more and more attention in recent years.   In 2005 the U.S. EEOC published a Fact Sheet, "Questions & Answers About the Association Provision of the [ADA]." In April 2007 the EEOC held a public meeting to discuss work/family balance and job bias law, including how the ADA's association provision applies to those issues. In fiscal year 2007, the number of ADA claims received by the EEOC hit their highest rate since 1998 and the percentage of cases settled hit the highest rate ever.

TIPS? Remember that Title VII of the Civil Rights Act also prohibits discrimination against or harassment of an individual because of his or her association with an individual of a particular race, religion or national origin. So as you review and update your EEO and harassment policies, consider including "association" in those policies e.g., let employees know they have the right to be free from harassment or discrimination based on their actual membership in any legally protected class as well as based on their association with someone in a legally protected class. While you're at it, consider including perception as well. Remember that both the ADA and Title VII also prohibit discrimination or harassment against an individual who is perceived to be a member of a class protected under those laws!

   Hot Hits!! Education Corner

Public Presentations

Thursday, April 3rd, "Did I Hear You Say What I Think You Meant?!" presented for the Tri-State HR Mt. Laurel, New Jersey, 7:30 - 10:00 a.m.

Thursday, April 10th, "This Joint is Jumpin': Five Leadership Strategies to Light Up Your Workforce (And You)" presented by Vicki Hess of Catalyst Consulting, LLC, sponsored by FiveL Company and hosted by the Carroll County Chamber of Commerce's HR Committee, Westminster, MD. 8:00 - 9:30 a.m.  Register here. This program is pre-approved by HRCI for 1.0 credit hour. 

Monday, April 14th "Are You My Employer? Tips in Managing Your Contingent Workforce" presented during the SHRM Staffing Management Conference and Exposition, Nashville, TN. This conference is sold out.

NEXT WEBCAST!

Wednesday, April 23rd, "Workplace Harassment Post 9/11" 10:00-11:00 a.m. EST. Did you miss last month's or the 2007 webcasts? They are archived and you can access them from the website as well!

All webcasts are pre-approved by HRCI for 1.0 Strategic credit!

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April's Client Training Programs

"Maintaining an Inclusive Workplace" (3)

"To Ask or Not to Ask: Tips for Effective Interviewing"

"HR & the Law for Managers" (4)

"The Latest News in FMLA Administration for Managers"

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Pregnancy As a Protected Status

Employers are facing more and more litigation in the area of pregnancy discrimination. In fiscal year 2007 the U.S. EEOC received more pregnancy discrimination claims than in any year in the previous decade. The percentage of cases that were settled was also the highest in the same period of time. Recent headlines are sprinkled with related employment litigation cases:

• In March, a Maryland employer agreed to pay $81,000 to two female employees it discharged who were pregnant.
• In February, the EEOC settled a case resulting in payment of $75,000 to one pregnant employee that was fired. The company also agreed to implement a policy against pregnancy discrimination. 
• In January, the EEOC settled a case of pregnancy discrimination for $120,000.
• In December, the EEOC supportsed the claim of a pregnant, female employee seeking $5M after she was fired.

TIPS. When updating your EEO and harassment policies consider including pregnancy as well as sex or gender. On the flip side, when drafting leave policies and programs consider "parental" leave rather than "maternity" leave policies.  The latter may actually discriminate against your male employees by providing greater leave benefits for female employees than their male counterparts who need leave for medical reasons.   

Spotlight! 

Following a series of "Maintaining an Inclusive Workplace" training sessions for its management team members, PDP Technology's HR Director Christine Eichler rated FiveL Company's training services as "Excellent" overall as well as with regard to (1) meeting the organization's specific needs and (2) actively engaging the management team members.  Thanks Christine! Are you looking for interactive and engaging training programs for your management team members?  Click here for a listing of programs like "Coaching, Counseling & Correcting;" "Making the Most of Performance Appraisals;" "HR & the Law for Managers" and many more.  For a full program outline and pricing, call FiveL today!