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1994 FIN – Disabilities Act Extends to Firms With Just 15 Employees in July

June 1, 1994 FIN – Employers can ask a job applicant with a disability how many days of leave he or she took last year, but not how many days they were sick, according to the Equal Opportunity Employment Commission guidelines.

Such fine distinctions are causing concern for employers.

And with the Americans With Disabilities Act of 1990 being extended to companies with 15 employees effective July 26, instead of the current 25 employees, more employers must learn the rules.

Consultant Nancye M. Combs, who spent 20 years in corporate human resources before founding Louisville, KY-based HR Enterprise, Inc. in 1986, provided the National Fastener Distributors Association with advice for complying with the ADA provisions.
Her first suggestion is to make sure wherever applications are taken is accessible to wheelchairs. “If you take applications, do not deny anyone the chance to fill out an application,” Combs advised.

Company interviewers need to be trained on what they can say and ask of applicants:
• Employers can discuss the nature of their company.
• Employers should give a precise description of the functions to be performed, the outputs expected and the physical working environment. Even if an employer notices an obvious disability, the applicant should not be asked about accommodations an employer must make for the disabled employee.
• “The question is whether the individual can perform the functions of the job,” Combs said. “Emphasis on how the job is performed may elicit from the interviewee information as to what, if any, accommodations he/she may need,” Combs noted.
• After describing the job, an employer can ask the applicant what parts of the job he or she could have difficulty with.
• You can require a potential employee who has a disability to take a pre-employment medical examination only after making a conditional offer of employment if you require it of all individuals of the same position.
However, personnel and medical files must be kept separate, she warned.
• “Be careful what you write down,” Factual items such as “clothes were unclean,” or “asked for help filling out application” are safer, she reasoned.

According to Equal Employment Opportunity Commission guidelines, employers can ask: Can you perform the functions of this job with or without reasonable accommodation?
Please describe how you would perform these functions. Can you meet the attendance requirement of this job?
How many days of leave did you take last year?

Questions an employer cannot ask of an applicant:
Do you have AIDS?
Do you have asthma? Do you have a disability that would interfere with your ability to perform the job?
How many days were you sick last year?

Combs said employers coming under the ADA may need to revise applications, job standards criteria and job descriptions.

The key is not to ask applicants for information the employer doesn’t need, Combs emphasized.

She predicted other categories will be added to the disability protections. She said it is likely that “ugly” will become a protected class at some point.

Red Flags

Combs’ personnel practices advice at the NFDA spring meeting went beyond just ADA guidelines.
A Combs commandment on any hiring: “Thou shalt not hire that person who has had four jobs in five years.”
Combs’ other red flags include: Quitting jobs without notice; cannot identify achievements; lack of courtesy to office staff; anger; late; independent wealth; talks ‘out of school’; doesn’t ask questions.

Drug Tests

Drug tests are becoming more important because more employers are doing them, Combs said. “The word gets around who does testing and who doesn’t,” Combs said. Then drug users apply at firms without drug testing.
Combs recommended routine drug screening for employees operating company cars or company equipment.
However, employers should announce 90 days in advance that tests will be conducted, she said.

Employers must tread carefully in telling an employee that a drug test turned up positive. If an employee tests positive for drugs, “don’t immediately assume anything. There are false positives,” she cautioned.
If an employee denies any drug use after testing positive, the employer should accept the denial and plan a retest, she advised.
Employees acknowledging drug use should be required to accept discipline or rehabilitation (government contacts require employers to offer rehabilitation) Combs said.
Any drug policy should have a positive aim, she said. “The goal is to keep people off drugs,” Combs summarized.

Rejecting an Applicant

REJECTING AN APPLICANT “A bad reference is as hard to find as a good employee,” Combs declared.
Employers are increasingly skittish of asking questions of an applicant’s former employers and former employers are leery of what they say in response. Combs suggested seeking only “verification.”

Sexual Harassment

Combs’ definition of sexual harassment: Any sexual attention that is unwanted or not freely and mutually agreeable to both parties, particularly the unwanted imposition of sexual requirements in the context of a relationship of unequal power.”
“A firm policy regarding sexual harassment is essential,” Combs emphasized. “Liability for claims of sexual harassment may be limited by appropriate action, such as adoption of specific policies against sexual harassment and procedures for promptly remedying any problem situation.”

Sexual harassment includes:
• Verbal comments such as demeaning questions about another person’s sex life or body. “Comments that men defend as compliments are often inappropriate in a professional relationship,” Combs pointed out.
• Non-verbal gestures, such as outlining a person’s body with one’s hands or looking someone “up and down” (leering and ogling.)
• Physical acts such as touching, hugging, fondling, assault, rape or restricting another person’s movement. This could include brushing against someone “accidentally” or catching someone alone and forcing physical contact.
• Visual objects such as explicit posters, cartoons, calendars, pictures, etc.
• Using terms of endearment such as “honey,” “babydoll,” or “sweetheart.”
• Requiring submission to sexual advances as a basis for employment decisions (including harassment between members of the same gender).
• Actual or threatened retaliation against a person who complains or intends to complain.
• Any sexually related conduct that interferes with work performance or creates an intimidating, hostile or offensive work environment.

Employers are responsible for harassment by a supervisor, whether authorized or forbidden by the employer, and whether or not the employer knew or should have known about the conduct but made no corrective efforts. “Liability can be avoided only if the employer can prove that immediate and appropriate corrective action was taken.”
“In cases of environmental harassment, a company’s procedures may protect employers from liability completely, Combs said. “in quid pro quo cases, these measures should at least enable employers to deter potential harassment and take appropriate action when necessary.”
The policy should prevent harassment from occurring and encourage reporting of incidents promptly. Quick reporting allows corrective action and can prevent development of a hostile work environment.
“An effective complaint procedure must not only exist, it must be well known.” Combs said. “You should encourage victims to come forward.”
Harassment victims should be able to complain to a neutral administrator. “A complaint system that mandates reporting to an immediate supervisor is ineffective when that very supervisor is the perpetrator of the alleged harassment,” she pointed out.
Confidentiality is important and access to written reports must be limited, Combs said.
When harassment is reported or suspected, the company must conduct a thorough investigation even if the victim may not wish to fully cooperate, Combs said.
Combs suggested interviewing third parties before the alleged harasser to “enhance employer’s ability to test the credibility of the accused harasser.” Follow up interviews can help reveal inconsistencies. Complete records should be maintained.
In some cases a warning to the offending employee may be enough to resolve the situation and insulate the employer from liability.
“In large organizations, the employer may seek to place the alleged harasser and victim in separate locations,” Combs said. “Because of the difficulties in determining with certainty whether the harassment occurred, the employer may wish to separate the parties involved in the dispute even if it does not make specific findings.”
Employer response to a complaint must be prompt. “A sexual harassment policy is of no consequence if the employer does not act quickly after learning of harassment,” Combs emphasized. ©1994/2010 Fastener Industry News.