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The Employment Practices Radar Screen: Intellectual Disability Claims And OFCCP Audits
Companies dedicated to the avoidance of employment-related lawsuits and liabilities must pay close attention to what’s on the government’s employment practices radar screen – that’s where many of the most dangerous risks can first be spotted, before it’s too late.
Some of the “blips” on the screen receive a lot of publicity and are tough to miss. For instance, when the DOL enacted new overtime regulations in August 2004, mainstream media and academic commentators wrote and spoke incessantly on the issue, it became a political hot potato, and companies could not open a trade journal (or their mail) without being confronted with an advertisement for an overtime procedures seminar. Similarly, when the Supreme Court established the ground-breaking Ellerth and Farragher precedents in 1998, companies were deluged with warnings from consultants and commentators that management training and employee complaint procedures were now mandatory. Companies that enacted compliant programs avoided the onslaught of claims that followed in the wake of those decisions.
Sometimes, however, the “blips” on the radar screen are not so well publicized. They are more subtle and not so easy to read. But they are just as dangerous. What separates those companies which consistently succeed at risk management from those which do not is the ability to perceive and react to these not-so-obvious signals, in the same way that spotting less-obvious market trends and innovative compensation strategies separates corporate mediocrity from excellence.
Avoiding Lawsuits will, from time to time, analyze the employment practices radar screen in order to alert its readers to the risks of which they might not otherwise become aware, and what can be done about them. Here are two examples that came to the forefront in the last several weeks.
Intellectual Disabilities and the ADA
In October 2004, the EEOC published a paper explaining its view on how the ADA protects job applicants and employees who are “intellectually disabled” (a condition the EEOC and other government agencies formerly referred to as “mental retardation”). More than 2.5 million Americans have some form of intellectual disability, but only 31% are employed. The EEOC chair has expressed the view that it is unlawful employer attitudes toward the intellectually disabled, rather than the ability of the intellectually disabled to contribute to the workplace, that has kept this percentage so low.
It is apparent that this issue is on the EEOC’s radar screen: having taken substantial trouble to clarify its stance in respect to the ADA rights of intellectually disabled persons, employers should expect the EEOC, as well as lawyers and interest groups representing intellectually disabled applicants and employees, to be on the lookout for potential violations. Here is what you need to know in order to stay out of the spotlight, and avoid becoming a test case.
Initially, it is important to identify which intellectually disabled persons fall within the protections of the ADA. Recall that the ADA prohibits discrimination against a qualified applicant or employee because of a “disability.” For ADA purposes, a “disability” is an impairment that limits one or more major life activities. While not every intellectually disabled person will necessarily be deemed disabled for ADA purposes, if a person is substantially limited in the ability to think, learn, work, remember or concentrate, the ADA will be implicated.
Remember also that the ADA also protects persons who are not disabled, but are regarded as being disabled. This aspect of the law can become particularly important when dealing with intellectual disabilities. For instance, an employer might presume that a person with a speech impediment is intellectually disabled when, in fact, the impairment is purely physical. That person is considered to be disabled under the ADA, whether or not impaired in a major life activity, because he or she is perceived and treated as being disabled
The EEOC’s message in respect to intellectually disabled persons is the same as its message in respect to all disabled persons: throw away the stereotypes and the assumptions, and deal with the specific facts that pertain to the abilities of the applicant or employee with whom you are dealing – or else. As the EEOC points out, persons with intellectual disabilities “successfully perform a wide range of jobs, and can be dependable workers. The types of jobs people with intellectual disabilities are able to perform will depend on individual strengths and interests. Examples include: animal caretakers, laundry workers, building maintenance workers, library assistants, data entry clerks, mail clerks, store clerks, messengers, cooks, printers, assemblers, factory workers, photocopy operators, grocery clerks, sales personnel, hospital attendants, housekeepers, statement clerks, automobile detail workers, and clerical aides.” Those who automatically presume that the intellectually disabled cannot perform these or other jobs will be called upon to explain and justify the factual bases of their decisions to EEOC investigators and, potentially, federal court juries.
This means that employers must apply the same ADA protocols to the intellectually disabled as they would apply to an employee or applicant with a hearing loss or a spinal cord injury. Always remember:
- Just as employers cannot ask an applicant, prior to making a job offer, about his or her medical history or physical condition, an employer cannot ask an applicant whether he or she is undergoing psychiatric treatment, or has had an IQ test, or has cognitive or learning issues. The inquiries must be tailored to the applicant’s ability to perform the essential functions of the job.
- Just as employers must provide access to the interview process to those who cannot walk, an employer must provide access to the interview process to those with intellectual disabilities by, for instance, providing reading and other assistance with the application process, and by providing special opportunities to demonstrate work-related capabilities.
- Just as employers must reasonably accommodate those with visual deficits by, for instance, supplying special computer screens or re-allocating job duties, employers must reasonably accommodate those with intellectual disabilities by, perhaps, affording additional time to perform certain tasks, altering work station configurations, allowing the employee to use a job coach, providing special and more detailed instruction and supervision, and so on.
- Just as employers are obligated to initiate an interactive dialogue regarding potential accommodations with an employee who appears to be struggling to complete his or her job requirements because of a bad back, an employer who observes an intellectually disabled employee struggling to keep up or making mistakes must initiate a dialogue to find reasonable ways to assist the employee – breaking down the job into more understandable steps, or providing written instructions, or labeling buttons with pictures instead of words, and so on.
- Just as employers must take reasonable steps to prevent and ameliorate harassment of employees who have physical impediments, employers must take pains to prevent employees with intellectual disabilities from being called names, or from being ostracized because of their intellectual disability.
Do the employees in your organization responsible for hiring decisions know how to deal with the application and interview process respecting the intellectually disabled? Do your supervisors and managers know how to look for and handle the potential accommodations intellectually disabled employees might require?
It’s all about planning and training. Let us know if we can help.
Think You Don’t Need an Affirmative Action Plan? Think Again.
The federal government’s Office of Federal Contract Compliance Programs (OFCCP) monitors affirmative action compliance by companies that do business with the federal government. An OFCCP audit can strike fear into the heart of the most seasoned CEO’s and HR professionals – violations can result in huge liabilities and administrative burdens.
That’s all well and good for companies that typically do business with the federal government and are generally geared up to deal with the voluminous and arcane affirmative action and employment practices compliance requirements the OFCCP imposes. But the problem is this: many companies that have never done business with the federal government are, nevertheless, subject to federal affirmative action requirements -- and the potential wrath of the OFCCP -- and never know about it until it’s too late.
How can that be? Federal affirmative action requirements apply not only to federal contractors, but also to the companies that serve as subcontractors to federal contractors. In fact, companies are bound to exactly the same requirements whether they sell missiles to the Department of Defense, or whether, as a subcontractor, they sell steel, employee uniforms, or office furniture to the missile maker, if the value of those goods or services is $50,000 or more and the subcontractor has at least 50 employees.
These are very low “thresholds,” and they frequently ensnare into the OFCCP’s regulatory scheme many businesses that do not consider themselves “federal contractors.” Federal regulations generally require that federal contractors incorporate these requirements into the contracts and purchase orders they provide to their subcontractors, but often this is done merely by reference to statutory or regulatory citations, rather than by plainly stating what legal requirements the law imposes on such subcontractors. Moreover, whatever notice is provided is usually written in legalese, and is often buried on the back of a purchase order sent to the purchasing or accounting (not the HR) department.
The all-too-frequent result is that a company that has never done business directly with the federal government is subjected to an affirmative action review, and is hit with huge monetary penalties for having failed to comply with obligations it never knew it had – a classic example of ignorance of the law being no excuse.
We bring this up now because the OFCCP has placed itself on the radar screen. It recently implemented a new procedure by which to select companies for audit, and on November 1, 2004, it sent out more than 1,700 "Corporate Scheduling Announcement Letters" to companies with two or more facilities it intends to audit before the end of July 2005. (The OFCCP did not notify companies with only one facility it intends to audit, and it has not notified companies on the post-July 2005 radar screen, so take no solace from the fact that you have not yet received a letter.)
Although the public typically thinks of the OFCCP as being concerned with “affirmative action” and “goals” and “good faith efforts,” the modern OFCCP is far more likely to focus on investigating discrimination – and unlike the EEOC it needs no complaint prior to scheduling a compliance evaluation. The message from the OFCCP is clear: “we’re coming.”
In particular, the OFCCP is aggressively auditing companies in search of discriminatory hiring, promotion and termination practices and disparities in the current compensation paid to each employee. The agency’s investigative technique is almost exclusively some form of statistical analysis, and there have been a spate of multi-million dollar back pay settlements. While, perhaps, few companies engage in deliberate discriminatory treatment, many “we’ve always done it that way” practices impact minorities and women differently than non-minorities and men. These practices, known as “disparate (or adverse) impact” situations, are just as unlawful as overt discrimination, unless the contractor can demonstrate a business necessity for selection criteria that disproportionately excludes minorities or women.
For instance, employers often establish strength or size requirements which have the effect of excluding women, even though strength and size have little to do with a person’s ability to do the job in question. Or they require a college degree, even though the job duties do not merit such a prerequisite, and the effect is to exclude certain disadvantaged minorities. The OFCCP (among others) will analyze an employer’s records (remember that the law imposes certain record retention requirements) in order to determine whether, for instance, the selection rate of women and minority applicants (internal and external) is significantly different than the selection rate of male or non-minority applicants. If it is, the legal presumption is that this difference in success rates is the result of unlawful discrimination. The employer must rebut this presumption by a showing of “business necessity” -- or the OFCCP will demand that the non-compliance be “cured” through, for instance, compensating non-selected minorities and/or women for their lost compensation and other damages.
If there is any good news in all of this, here it is: the OFCCP letters state that it “will give serious consideration to any remedial action voluntarily undertaken” by a company before the audit commences. In other words, if you start the process of compliance now, the OFCCP will go easy; if you don’t and you get caught, good luck.
Companies seeking to avoid these risks will self-audit their employment practices now, in essentially the same way the OFCCP might audit them later. The need for a self-audit of this nature can be assessed by asking this basic question: do you know – really know -- what an analysis of your records will reveal about the effect of your employment practices on minority and female applicants and employees? Can you afford to take the chance that you might not have a true, fact-based handle on this issue?
Once problem areas are identified through a self-audit, the kinds of remedial actions the OFCCP looks for can then be implemented, without the supervisory and monitoring pressures of the federal government. A self-audit of this nature is also invaluable as a tool to prevent individual and class action discrimination claims (i.e., the kinds of claims that led to the recent multi-million dollar settlements paid by Abercrombie & Fitch and Morgan Stanley, and a host of similar, less-publicized settlements).
Powell Trachtman Logan Carrle & Lombardo PC. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
Avoiding Lawsuits will, from time to time, analyze the employment practices radar screen in order to alert its readers to the risks of which they might not otherwise become aware, and what can be done about them. Here are two examples that came to the forefront in the last several weeks.
