With the upswing of the economy in recent months and the addition of 2.65 million jobs in 2015 – 99,000 of those in government – we are observing a downward trend in the number of layoffs taking place throughout the nation. However, staff reductions are an inevitable risk of any business and are often difficult situations for employers and employees alike. Personnel cut backs can expose public entities to discrimination lawsuits if not handled correctly, and can certainly affect morale of the remaining workforce. According to the Equal Employment Opportunity Council (EEOC), over 25,000 claims were submitted in 2014 under the Americans with Disabilities Act, accounting for over 28% of EEOC claims for the year.
As the economy continues to improve and public entities add to their payroll, we’ll begin to see new trends emerge in the employment practices arena. By continuing to be aware of current trends, implementing an effective risk management and training program and partnering with industry specialists, public entity risks can be managed and avoided, long before they create costly losses.
1. When FMLA and ADA Overlap
There are times the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) may overlap and apply to an individual who is ill or injured. This situation occurs more frequently than one may think. Broken down to its simplest definition, FMLA “entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” It is a leave provision for employees, but does not prevent or protect against discrimination based on disability. Under FMLA, the employee is allowed up to 12 weeks (intermittent or continuous) unpaid leave in any 12 month period. At the exhaustion of FMLA leave, an employee may request additional time away from work, simply fail to return to work, or advise that he/she cannot return to the job even if allowed by a medical professional. Under the parameters of FMLA, the employer may be justified in disciplining or terminating that employee. Under FMLA, the employer is not obligated to hold the position open after the exhaustion of the FMLA leave.
However, what many employers fail to take into account in making this termination decision is whether the employee might have a disability that requires reasonable accommodations, and those “accommodations” can include additional unpaid time off which exceeds the 12 weeks provided under FMLA.
Reasonable accommodation under the ADA may include simple changes such as a modified job schedule, transferring the employee to a vacant position better suited for their requirements or granting leave that will likely lead to the employee returning to work. Keep in mind, there is no probationary status under the ADA. An employee at their first day of work must be treated the same as a 20-year veteran.
To reduce your liability in the event there is an overlap in FMLA and ADA accommodations, which could include additional unpaid leave, begin the request process by being transparent and interactive with your employee. You likely have a duty to inquire whether reasonable accommodations are needed. Try to determine if alternative solutions exist that would allow the employee to perform the essential functions of his or her job. This is a fact-intensive process and one that will involve interviews with your employee as well as his/her supervisor. Don’t rule out the option for reassignment within your organization. Taking leave may not be the only option.
2. Transgender: Helping to Stop the Discrimination
The visibility of transgender Americans is rapidly increasing. People in this community continue to face discrimination across every aspect of their lives – home, school, public and at work. According to a survey conducted in Massachusetts in 2007 and 2009, and another in California in 2003, it is estimated over 700,000 people or 0.3% of the adult population in the United States is transgender. A separate survey conducted by the National Center for Transgender Equality asserts 47% of transgender respondents had experienced discrimination in the workplace – they did not get a job, were denied a promotion or were fired – because they are transgender or gender non-conforming. Furthermore, 90% of respondents said they had directly experienced harassment or mistreatment at work or felt forced to take protective actions that negatively impacted their careers or their well-being, such as hiding who they were, in order to avoid workplace repercussions.
Discrimination based on gender identity encompass a wide range of harassing behaviors or actions including denying a transgender employee access to workplace restroom facilities available to other employees, or requiring a transgender employee to use a restroom not consistent with the employee’s gender identity or presentation. Providing access to a restroom facility based on one’s gender identity is recognized in the medical community and increasingly by employers, schools and courts.
Although discrimination based on gender identity is not currently protected under federal law, employers should recognize the trends to make the workplace fair for all employees. Currently, 18 states (CA, CO, CT, DE, HI, IL, IO, ME, MA, MD, MN, NJ, NV, NM, OR, RI, VT, WA) and the District of Columbia have employment laws that explicitly protect employees on the basis of gender identity.
Mitigate your risk of harassment lawsuits by having established training courses and anti-discrimination policies in place for all of your employees. Be sure to include gender identity or expression in your policy language to be clear with all employees that discrimination on this basis will not be tolerated. In the event of a lawsuit or hostile work environment claim, your liability may be reduced if you can show you took all necessary steps to investigate, and if appropriate, reprimand the harasser.
3. Retaliation in the Workplace
Although it may seem common sense, an employer may not retaliate against an employee for filing a charge of discrimination, participating in a discrimination proceeding or otherwise opposing discrimination. Unfortunately, it happens more frequently than you may think. In 2014, 42% of all EEOC charges were for Retaliation (All Statutes), and of those charges, 35% were resolved favorably resulting in more than $140 million in monetary benefits awarded to the charging party.
Retaliation may include treatment as simple as excluding an employee from decisions and work activities or giving the cold shoulder, to more complicated situations such as passing the employee over for a raise or promotion, relocating or reassigning the employee and/or demoting or terminating an employee.
The difficulty with retaliation claims is that there are a number of ways an employer may unknowingly do something that looks like retaliation even though it isn’t intended to be. It is possible an employee’s harassment claim may not hold up in court; however, if the employer took adverse action after the initial claim was filed there may be a legitimate retaliation claim. Unique to public entities, a government employer is protected against unconstitutional actions of an employee unless that employee is a final policy maker, the action reflected an official policy, or the decision was ratified by the employer. Government employers must meet an extra burden to defend discrimination claims since public sector employees may assert constitutional challenges as well as statutory claims.
The best thing you can do is audit your retaliation policies and ensure all of your employees are trained consistently and repeatedly – every employee has a right to work in an environment free from harassment and retaliation. Additionally, to protect the interest of your public entity, closely monitor the timing or filing of complaints and ensure performance issues are well documented.
These trends in employment practices highlight common actions public entities can take to lessen liabilities and help prevent costly losses. Develop updated policies, ensure your employees are well-versed, comply with your employment practice procedures and implement additional tactics around key issues when necessary. If the trends mentioned in this article are carefully considered, your public entity can substantially enhance your level of protection against potential liability claims.
This article is provided for general informational purposes only and does not constitute and is not intended to take the place of legal or risk management advice. Readers should consult their own counsel or other representatives for any such advice. Any and all third party websites or sources referred to herein are for informational purposes only and are not affiliated with or endorsed by OneBeacon Insurance Group. OneBeacon Insurance Group hereby disclaims any and all liability arising out of the information contained herein.