Publications

Design Professional's Practice Bulletin

Volume 1, Number 1 — February 1997

This Bulletin addresses recent developments affecting Design Professionals as well as business concerns as important as the specific professional and technical issues they face.

Editors: Neil P. Clain and Richard J. Davies

What Every Employer Better Know About the Law
(or, How to Keep Your Employees from Getting Rich at Your Expense)

By Michael G. Trachtman

Consider the following:

1. You land a major design project. The young architects in your firm clamor for the assignment. The client is very religious, and tells you that he insists on working with professionals of his religious persuasion. In order to keep the client happy, you give the work to one of your architects who happens to be of the same religion as the client. The assigned architect gets a sizeable bonus and a promotion for his good work. One of your other architects, however, sues you, claiming that he was really the most qualified for the job and you discriminated against him because of his religion.
2. One of your employees suffers an injury that impairs his vision. He can still do his job if you buy him a special computer screen that costs $500.00. What do you do? Suppose it costs $5,000.00? $50,000.00?
3. One of your employees tells you that he is a compulsive gambler, or a kleptomaniac, or a former drug addict, or an alcoholic who drinks at home every night. You run the business and, for your own reasons, you prefer not to work with people who have these conditions. You tell the employee that you would prefer that he find another job. Any problem?
4. You are tired of absenteeism and disability claims. Consequently, during job interviews for prospective employees you ask for a medical history, and you require each applicant for a job to take a physical so that you can be certain that you are hiring reliable people. Any problem?
5. Your employee's spouse develops a kidney disease. He tells you he has to drive her for dialysis every morning and asks if he can come in two hours later and stay two hours later than your normal work schedule. You are afraid that everyone in your office will want similar accommodations for their own personal problems and preferences. The employee is an average worker and easily replaceable. What do you do?

As you may have guessed, in each instance your "common sense" and "business judgment" would have led you astray, into a world of substantial damage awards and responsibility for your employee's (or even your prospective employee's) legal fees. Thanks to a burgeoning array of federal legislation (as well as some state intervention) the business decisions that once seemed so logical will now lead to liability. Here is a thumbnail sketch of some of the business knowledge you need to obtain and apply to stay out of trouble.

TITLE VII

Title VII prohibits employers from discriminating against employees or applicants for jobs on the basis of race, color, nationality, religion, sex or pregnancy. (Related statutes also include factors such as age into the mix.) It sounds logical and fair and sometimes it is. But what about the situation in Example 1 above? Sad to say, but the employee in that example probably has a solid claim -- discrimination is discrimination, even if you never intended to discriminate against anyone. There are many other ways by which you can be liable for discrimination without even knowing it and, further, depending upon how you run your business, you can be liable not only for what you do, but also for what your employees do outside of your presence and without your knowledge.

Title VII also covers such problems as sexual harassment (which can be extremely subtle and difficult to define), religious discrimination (for instance, must you grant paid time off for non-mainstream religious holidays?) and retaliation (for instance, subtle ostracism that might result when an employee makes a claim against you).

AMERICANS WITH DISABILITIES ACT

The ADA does not just mandate barrier removal and architectural accessibility. Just as significantly, the ADA prohibits employers from discriminating against "qualified" applicants and employees just because they are disabled, so long as they can perform "the essential functions" of the job, even if they need "reasonable accommodation." Again, it sounds fair and just, but it is virtually impossible to apply in real business life.

For example, in Example 2 above, the employee can still do his job if you spend the money on a special screen. Do you have to do it? According to the ADA, if its "reasonable," you do. But what's "reasonable"? That's up to the court to determine, and the court will consider the size of your business and similar factors to determine how much of a hardship spending $500 or $5,000 or $50,000 would be for you. You have to decide whether to buy the equipment, or gamble on a jury's subsequent judgment.

Example 3 raises another crucial issue. If your employee is "disabled," he falls under the ADA, and you have to offer "reasonable accommodations"; if his condition is not a "disability," the ADA does not apply. So what is a

• "disability"? Compulsive gambling and kleptomania probably will not be
• "disabilities," but the law provides that the stigma that follows a former drug user and an at-home alcoholic can be disabilities, and you would most likely be amazed at what else makes the
• "disabilities" list as well.

Example 4 highlights another "you never would have guessed it" provision of the ADA -- you cannot routinely screen job applicants for their medical condition. If you do so, the ADA suit will follow.

THE FAMILY AND MEDICAL LEAVE ACT OF 1993

Most employers now know that the FMLA requires them to grant leave to a sick employee. But how about Example 5, where it is not the employee who is sick, but the employee's spouse? The FMLA still applies. It requires all private employers with 50 or more employees to provide up to 12 weeks of unpaid leave per year to employees who want the leave because of such reasons as the birth of a child, to take care of a child, spouse or parent who has a "serious health condition," or for the employee's own serious illness. The law is complicated and arcane. For instance, what happens when the employee comes back after taking his leave, and wants his old job back?

One more point needs to be kept in mind in all of your dealings: even if you comply with the law, how are you going to prove it? For instance, suppose you interview two applicants. One white and one minority, and the minority applicant falsely charges that you turned him down on account of his race? Or you promote one employee, and another falsely charges that she was passed over because of her gender, or her age, or her disability? How do you prove otherwise? The key in this area, just like numerous other aspects of running your business, is maintaining the right kind of documentation.

The above represents only a sampling of the traps and pitfalls that confront employers in today's business climate. There are solutions -- carefully crafted and well-implemented employment and management policies, coupled with educational efforts directed toward supervisory personnel, can prevent a great many problems. Employers who, instead, follow their "common sense" are learning the hard way that despite the old saying, ignorance, especially ignorance of the law, is not bliss.

©1997 Powell, Trachtman, Logan, Carrle & Lombardo, P.C.

This bulletin is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine how laws, suggestions and illustrations apply to specific situations.