EEOC Speaks Out on Workers Compensation ADA Obligations

Employers Must Begin Interactive Process for Return to Work Sooner Than Thought
Dated: December 4, 2014

[WorkCompRoundUp is authorized to provide this information on behalf of EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD.]
EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD Provide Guidance on When Employers Must Start Discussion Regarding Return to Work Accommodations

 

This may be surprising news for some readers: In workers’ compensation, MMI should not be viewed as the trigger for ADA-related protections and obligations.

 

Background: A common practice in workers’ compensation claims management may not be legal. Employers / claims organizations that postpone the reasonable accommodation process until an injured worker’s medical condition has reached MMI (maximum medical improvement) may be violating the ADA, now that the definition of “disability” has been broadened. Prior to MMI, if medical restrictions have been established by the treating physician, employers often decide whether to offer temporary transitional work without involvement of injured workers. If not, the workers remain out of work – and may end up losing their jobs. Jennifer Christian, MD, MPH who chairs ACOEM’s Work Fitness & Disability Section, asked Aaron Konopasky, JD, PhD, a senior attorney advisor to the EEOC about this. She was surprised to hear that the ADA does apply at any time – whenever a medical condition has the potential to significantly disrupt an employee’s work participation. This means that injured workers will need to be active participants in their employers’ stay-at-work and return-to-work decision-making process. Christian and Konopasky agreed to co-author a brief summary of the way these two programs interact during the post-injury period, which appears below. Please forward this on to anyone who needs to know.

 

In the Worker’s Compensation context, ADA-related issues can arise at any of several points along the injury management timeline. As a practical matter, employers should be pro-actively evaluating and managing Worker’s Compensation and ADA legal issues concurrently.

 

This is because an employer’s reasonable accommodation-related obligations begin as soon as the employer knows that an individual worker is having trouble at work because of a serious medical problem. By definition, if a doctor informs the employer that a worker has medical restrictions/limitations due to a work-related condition, whether or not the employee is actually working, the employer is now aware that a medical problem is having an impact on the employee’s ability to work. If the condition has the potential to significantly disrupt the employee’s work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA.

 

Although the employer can stop at this point to determine whether the individual is a “qualified individual with a disability,” it may not be worthwhile. Since employees with workers’ comp injuries are already employed at the time of injury, one can presume they meet the requirement of being “qualified” for the job. And, under the much broader standards established by the ADAAA, any conditions serious enough to require medical restrictions/limitations for more than a few days or weeks (and even some conditions that have not yet caused any work disruption) are likely to meet the definition of an ADA “disability.” An extended inquiry regarding the applicability of the ADA could result in unnecessary delay during a critical period.

 

Thus, whether or not the worker’s condition is stable and has reached maximum medical improvement (is at MMI) has no relevance, either (a) to the time when the employer’s obligation to engage in the interactive process begins or (b) to the time when a worker should be considered a qualified individual with a disability under the ADA. For more details about specific times when the ADA may apply, read below.

 

1. At the time a person is injured.
No matter whether the resulting condition is already stable or is still evolving, the ADA may require the employer to provide a reasonable accommodation that would enable the individual to perform his or her essential job functions, unless doing so would involve significant difficulty or expense. Examples might include specialized equipment, removal of non-essential job functions, and special scheduling. Individualized assessment is a key precept of the ADA, so a blanket policy is not appropriate. Employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA. It should be noted, though, that the ADA cannot be used to deny a benefit or privilege to which the employee is entitled on a separate basis. If, for example, the individual has other types of leave available at his or her discretion, whether paid (such as vacation leave) or unpaid (such as FMLA leave), the employer cannot deny that leave based on the fact that he or she could remain on the job with a reasonable accommodation.

 

2. While recovering out of work due to injury
The ADA may apply as soon as the worker’s condition becomes stable enough that on-the-job reasonable accommodations might allow the individual to perform the essential functions of the job (whether or not there has been a formal declaration of MMI). A blanket policy is not appropriate at this juncture, either. At this point, the employer should re-engage the interactive process to determine whether a reasonable accommodation would allow the individual to return to their usual job. As mentioned above, employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA.

 

3. When the individual has exhausted his or her leave and workers’ compensation benefits, and is still unable to return to the original position, even with an on-the-job reasonable accommodation.
At this point, whether or not the medical condition has reached MMI, the employer should consider other forms of reasonable accommodation, such as additional unpaid leave or, if the individual is not expected to regain the ability to do the essential functions of his or her current position, reassignment to a vacant position (if one is available). Again, a blanket policy is not appropriate.

 

In summary, legal obligations under Worker’s Compensation and ADA legal issues should not be assumed to be sequential, because they may run simultaneously. Duration is not the key issue; the main issue is the nature of the condition and its impact on the ability to function at work.

 

 

CLARIFICATION To MEMO dated December 4, 2014
Dated: December 11, 2014

The EEOC’s Aaron Konopasky and I were glad to see many thoughtful comments in response to our message about the ADA in workers’ compensation last week in the forums where it was posted. Our summary was primarily written to dispel two common myths:

  1. In workers’ compensation, the time to think about the ADA is at MMI. This is NOT true. MMI is late among several points in the post-injury timeline when the ADA needs to be considered.
  1. The ADA’s requirement for an interactive process doesn’t apply in decision-making about transitional work assignments. This is NOT true. Injured workers do need to be active participants in the workers’ comp stay-at-work and return-to-work process.

 

However, based on the comments we have received, we want to clarify that the ADA has several other significant implications for how employers should respond to existing employees who develop health problems. The ADA is about civil rights for people with disabilities, not financial benefits of one kind or another. The fundamental purpose of the ADA’s employment provisions is to help people with disabilities get and keep jobs, as long as they are qualified to do the work and can meet productivity standards. The cause of the disability is irrelevant. It does not matter what other types of policies or programs are also involved — whether workers’ compensation, FMLA, sick pay, or disability insurance programs. A disability can be newly acquired, transitory, fluctuating, progressive, or longstanding and stable. It can be the result of injuries, illnesses, congenital conditions, or the natural aging process. The only relevant question is whether the disability is now or is perceived as potentially having a significant impact on someone’s ability to perform their job, take home their regular paycheck, and stay employed.

 

Here are 5 more practical implications for management of ALL types of health-related employment situations:

 

  1. As the Federal agency that enforces the employment provisions of the ADA, EEOC’s biggest concern in situations involving disability leaves of any type will be that someone with a disability is being forced to take leave even though he or she could do the essential functions of the job with a reasonable accommodation. Everyone involved in the decision to keep someone out of work — doctors, third-party benefit administrators, managed care companies, workplace supervisors and employee program managers — should keep that fact firmly in mind, so that people with disabilities are not needlessly forced out of the workplace.

 

  1. Only the employer is accountable for complying with the employment provisions of the ADA. However, treating physicians and the employer’s vendors (benefits claims administrators, managed care companies) who fail to communicate with the employer during the stay-at-work and return-to-work process may be exposing the employer to increased risk/liability. When a vendor or a doctor (especially one who has been selected by the employer) fails to notify the employer that an employee described difficulty working or an adjustment that might allow them to work, the employer could be held liable for failing to provide that accommodation — even though the information was never properly passed along. Doctors and vendors also can help educate employees and small or unsophisticated employers to ensure that the law is followed.

 

  1. Some employees may express the desire to remain on leave, rather than return to work with a reasonable accommodation. Of course, employees with disabilities must be allowed to use accumulated sick or annual leave, just like any other employee. And they may have a legal right to insist on leave if, for example, they qualify for FMLA. But if an individual with a disability has no discretionary leave, and a reasonable accommodation would allow performance of job functions in a manner that is safe and consistent with his or her medical needs, then the employee may be required to return to work with the accommodation.

 

  1. Paying people money to sit home who are well enough to do something productive does not count as a reasonable accommodation under the ADA, especially when they were not part of the decision-making process that has put them out of work. The employee must be actively involved in arranging any temporary or long-lasting adjustments to their usual jobs in order for the employer to meet the interactive process obligation. With respect to specific cash payments made under workers’ compensation—

 

A.  Temporary Total Disability (TTD) Benefits – There is little difference between cash payments under workers’ comp TTD and disability benefit programs for personal health conditions except how the amounts are calculated. Employees are usually receiving them for one of four reasons:

 

  1. The doctor wrote “no work” because their patient’s medical condition is so severe or unstable that it is unsafe for them to do anything except try to get better;
  2. The doctor wrote “no work” because of a perception that the employer cannot or will not provide safe and suitably modified work on a temporary or long-term basis;
  3. The doctor released their patient to work with restrictions, but state or federal law, or a union contract means that the employee cannot work until fully able to do the essential functions of their job, so the employee is put out of work temporarily.
  4. The doctor released their patient to work with restrictions, but the employer said they cannot meet those restrictions (cannot find appropriate work to assign them within their current work capacity) so the employee is put out of work.

 

In all but # 1 above, the ADA may apply. However, the employee is often not consulted as these decisions are being made. As stated above, giving the employee money is not a reasonable accommodation, and the ADA requires that the employer interact with the employee in looking for a solution that will enable the employee to stay at work.

 

B. Other types of cash benefits: Temporary Partial Benefits, Permanent Partial Benefits and Permanent Total Benefits -These cash awards help compensate employees for economic loss as a result of their injuries. However, as stated above, giving people money is not a reasonable accommodation, and does not accomplish the public purpose of the ADA.

 

5. Employers sometimes limit the length of transitional work assignments (TWA) in order to avoid them turning into required permanent accommodations or becoming subject to union job bid rules. To avoid ADA liability, a “usual” 90-day limitation policy that provides for an individualized assessment of the individual’s situation and possible extension is more appropriate. If there is a specific reason why extending a particular employee’s TWA or granting extra (paid or unpaid) time off to heal more completely will allow them to keep their job that might be a reasonable accommodation. Some temporary adjustments are reasonable accommodations (including, for example, temporary use of adaptive equipment or temporary relocation of a workstation to the ground floor) and may need to be extended unless doing so would involve significant difficulty or expense. However, TWAs may have other aspects that can be discontinued without fear of ADA liability, including temporary reductions in productivity requirements and elimination of essential job functions. These measures go beyond what the ADA requires.

 

 

Please note that this material is an informal discussion and does not constitute an official opinion or interpretation of the EEOC.

 

 

Aaron Konopasky, J.D., Ph.D
Senior Attorney Advisor
ADA/GINA Policy Division
Equal Employment Opportunity Commission
Email: aaron.konopasky@eeoc.gov

 

Jennifer Christian, MD, MPH
President, Webility Corporation
Chair, Work Fitness & Disability Section
American College of Occupational & Environmental Medicine
Email: Jennifer.christian@webility.md

 

If you would like to hear directly from the EEOC, inquiries can be submitted by mail to:

EEOC Office of Legal Counsel
131M Street, NE
Washington, DC 20507

 

Download A Printable Copy of This Memo

Ten Things Workers Say About Workplace Bullying

If your fear of work involves more than just that towering pile of assignments on your desk, you may not be alone.
 
 
According to a survey from CareerBuilder.com, 27% of employees have indicated they felt bullied while at the workplace. The survey notes that the problem is more commonly reported for women (34%) than for men (22%). (WCxKit)
 
 
For those employees who reported they had been bullied, the following points were noted as the most typical forms of such actions:
 

1.      My comments were dismissed or not acknowledged – 43%

2.      I was falsely accused of mistakes I did not make – 40%

3.      I was harshly criticized – 38%

4.      I was forced into doing work that really was not my job – 38%

5.      Different standards & policies were used for me than for other workers – 37%

6.      I was given mean looks – 31%

7.      Others gossiped about me – 27%

8.      My boss yelled at me in front of other co-workers – 24%

9.      Belittling comments were made about my work during meetings – 23%

10.  Someone else stole credit for my work – 21%.

 
 
While standing up to bullying can get a worker in trouble, it appears many do seem to see it as a deterrent to confronting the situation. A majority of employees claim they will stick up for themselves. Close to half of workers who indicated they’d been bullied also noted they would confront the individual head on, and 28% said they informed human resources. (WCxKit)
 
 
Bullying is a serious offense that can disrupt the work environment, impact morale, and lower productivity,” said Rosemary Haefner, vice president of Human Resources at CareerBuilder. “If you are feeling bullied, keep track of what was said or done and who was present. The more specifics you can provide, the stronger the case you can make for yourself when confronting the bully head on or reporting the bully to a company authority.”
 
 
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contributor to the best selling book, Workers Compensation Management Program: Save 20% t0 50%. See www.LowerWC.com for more information. Contact:Info@ReduceYourWorkersComp.com.
 
 
WORKERS COMP MANAGEMENT BOOK:  www.WCManual.com
  
 
WORK COMP CALCULATOR:  www.LowerWC.com/calculator.php
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

National Insurer Sued under ADA For Failure to Hire Methadone User

The U.S. Equal Employment Opportunity Commission (EEOC) has sued a national insurer claiming the firm violated federal law by refusing to hire a North Carolina man after he disclosed he was participating in a methadone treatment program for drug addiction.
 

The suit was
filed in U.S. District Court in Raleigh against United Insurance Co. of America, according to EEOC attorney Lynette Barnes. (WCxKit)
 
 
The complaint argues the firm violated federal disability discrimination law by refusing to hire Craig Burns, 30, who applied for a job in the firm’s Raleigh office in December of 2009. The firm made a conditional offer of employment to Burns the following month, depending upon his passing a drug test.
 
 
The test showed the presence of methadone in his system, so Burns submitted a letter to the firm from his treatment provider saying he was participating in a supervised methadone treatment program and taking legally prescribed medication as part of the treatment, the complaint said. Upon receiving this information, United Insurance notified Barnes he was not eligible to be hired and withdrew the employment offer.
 
 
According to Barnes, the action violates the Americans with Disabilities Act, which protects employees and applicants from discrimination based on their disabilities. A recovering drug addict is covered under the act. (WCxKit)
 
 
The suit seeks back pay, compensation for financial loss, along with punitive damages.
 
 
Author Robert Elliott, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.


WORKERS COMP WORKBOOK:
www.wcmanual.com
WORK COMP CALCULATOR: www.LowerWC.com/calculator.php
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Woman Fired After Alleging Harassment, Court Takes her Side

A federal district court judge in Milwaukee entered a consent decree resolving an employment discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) against a major Wisconsin building products company, the agency announced recently.
 
 
The EEOC charged Sheboygan Falls, Wis.-based Richardson Industries, Inc., (doing business as Richco Structures), violated federal law when it fired employee Morgan Rae Brocker after supervisors allegedly reported to management that another Richco supervisor sexually harassed Brocker at the company’s Christmas party in 2005.(WCxKit)
 
 
Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. Richardson Industries, Inc., d/b/a Richco Structures, Civil Action No. 2:10-C-0505) in U.S. District Court for the Eastern District of Wisconsin on June 18, 2010, after first trying to reach a pre-litigation settlement through its conciliation process.
 
 
The decree entered July 14, by U.S. District Judge Charles Clevert prohibits future discrimination and provides that Richco will pay Brocker $22,500 and train its managers and supervisors on employers’ obligations and the rights of employees under Title VII.
 
 
According to company information, Richardson Industries, Inc., is a privately held corporation with several different divisions devoted to furniture and woodworking. (WCxKit)
 
 
The company’s website states that Richco Structures, which is located in Sheboygan Falls, Haven and De Pere, Wis., and is part of the company’s Richardson Building Products division, “Is one of the Midwest’s largest manufacturers of custom fabricated wood roof trusses, floor trusses, and wall components, as well as a distributor of engineered wood products for the construction industry.”

 
Author Robert Elliott, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.


Learn MORE about WORKERS COMP:
www.WCMANUAL.com
 
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Using Racial Profiling Eatery Owner Refuses Service

A Dorchester restaurant and bar and its owner have been accused of violating Massachusetts civil rights and public accommodations laws in a lawsuit filed by Attorney General Martha Coakley’s Office.
 
 
According to the AG’s office, the complaint alleges the eatery, Peggy O'Neil, engaged in a pattern of not allowing customers of color to enter and use the bar. (WCxKit)
 
 
We allege that [Caron O'Neil, owner of] Peggy O’Neil engaged in discriminatory and unlawful conduct,” Coakley said. “No one who lives, works, or visits Massachusetts should be subjected to discrimination.  All businesses must ensure that appropriate anti-discrimination policies are posted and adhered to within their establishments.”
 
 
The lawsuit claims that in December 2010, two men of Cape Verdean and African-American descent went to Peggy O’Neil, located in Dorchester, and waited in line with other customers as staff allowed numerous Caucasian customers to enter the bar in front of them. The owner, Caron O’Neil, who was working alongside bar staff allegedly said to the group, “This is your first time here, huh?” and informed them that they could not get in because it was too late.  She allegedly told the group she did not “want any trouble,” that she didn’t know them, and that they should find somewhere else to go.  At the same time, several white customers were allowed to enter the bar. 
 
 
Later that evening, a second group of friends of Cape Verdean, Spanish and African American descent went to the bar and was also allegedly denied entry by bar staff.  Bar staff asked them for their identification cards which they provided.  The bouncer allegedly asked them if they knew the owner of the bar and who they were there to see.  At the same time, other Caucasian customers were allowed to enter the bar, many of whom appeared to be intoxicated. 
 
 
According to the lawsuit, O’Neil told the group that they could not come in the bar because they did not know the bar’s owner.  She allegedly stated to them, “You don’t look like the type of people” the owner would know and “we don’t like people of your kind here” among other statements.  The lawsuit further states that a third group of persons of color were denied entry to Peggy O’Neil in April 2011 and were treated in a similar manner. (WCxKit)
 
 
The Attorney General’s lawsuit is seeking monetary damages, civil penalties and permanent injunctive relief, in addition to a preliminary injunction requiring the defendants and Peggy O’Neil’s staff to comply with state and federal anti-discrimination and consumer protection laws, undergo anti-discrimination training, and implement an approved anti-discrimination policy.
 

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Alcoa Mill to Pay Nearly $485K in Discrimination Cases

 
Alcoa Mill Products, Inc., will pay $485,000 in back wages to 37 Hispanics and African-Americans as well as $35,500 to two women who all were rejected for job positions at the company's plant in Lancaster, Pa.
 
 
The settlement resolves a finding by the U.S. Department of Labor that the company discriminated against Hispanic, African-American and female applicants for material handler positions. Alcoa Mill Products is part of Alcoa Inc., a major aluminum producer.(WCxKit)
 
 
The department's office of federal contract compliance programs conducted a scheduled compliance review of the Lancaster manufacturing facility from 2009 to 2010, and determined the company had violated an executive order in failing to meet its obligations as a federal contractor, ensuring qualified job applicants receive equal consideration for employment without regard to sex, race, color, religion, or national origin. Alcoa holds contracts with the U.S. Army in excess of $50 million.
 
 
"No worker should be denied a job because of factors that have absolutely nothing to do with his or her ability to accomplish the work," said OFCCP Director Patricia Shiu. "I am glad we reached a fair settlement with Alcoa Mill Products, one that not only provides financial remedies for the affected victims, but also creates opportunities for good jobs."
 
 
Under a conciliation agreement with OFCCP, Alcoa Mill Products agreed to pay back wages and extend job offers to nine of the 37 identified class members as positions become available.(WCxKit)
 
 
Additionally, the company agreed to spend at least $20,000 on equal employment opportunity, anti-harassment, and sensitivity training for its workforce, including all managers and human resource personnel involved in hiring. Finally, the company agreed to revise its selection process for material handlers.

 
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.


Our WC Book:  http://www.wcmanual.com
WORK COMP CALCULATOR: http://www
.LowerWC.com/calculator.php
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Discrimination Alive and Well in the Global Workforce

 
In the new Global Report on Equality at Work 2011, the International Labor Office (ILO) is stating that in spite of continuous positive advances inanti-discrimination legislation, the global economic and social crisis has led to a higher risk of discrimination against some groups like migrant labour.
 
Economically adverse times are a breeding ground for discrimination at work and in society more broadly. We see this with the rise of populist solutions,” said ILO Director-General Juan Somavia, adding, “this threatens painstaking achievements of several decades.” (WCxKit)
 
 
The report entitled Equality at Work: The Continuing Challenge, cites equality bodies which receive increased numbers of complaints, showing that workplace discrimination has become more varied, and discrimination on multiple grounds is becoming the rule rather than the exception.
 
 
It also warns against a tendency during economic downturns to give lower priority to anti-discrimination policies and workers’ rights in practice. “Austerity measures and cutbacks in the budget of labor administrations and inspection services, and in funds available to specialized bodies dealing with non-discrimination and equality, can seriously compromise the ability of existing institutions to prevent the economic crisis from generating more discrimination and more inequalities,” the report says.
 
 
According to the report, the lack of reliable data in this context makes it difficult to assess the exact impact of these measures. It therefore calls on governments to put into place human, technical, and financial resources to improve data collection on discrimination at the national level.
 
 
The report also notes that new forms of discrimination at work arise while the old challenges remain at best only partially answered.
 
 
Among the key findings of the report:
 
1.      Significant progress has been made in recent decades in advancing gender equality in the world of work. However, the gender pay gap still exists, with women’s wages being on average 70 to 90 percent of men’s. While flexible arrangements of working schedules are gradually being introduced as an element of more family-friendly policies, discrimination related to pregnancy and maternity is still common.
 
2.      Sexual harassment is a significant problem in workplaces. Young, financially dependent, single, or divorced women and migrants are most vulnerable, while men who experience harassment tend to be young, gay, or members of ethnic or racial minorities.
 
3.      Combating racism is as relevant today as it ever was. Barriers impeding equal access to the labour market still need to be dismantled, particularly for people of African and Asian descent, indigenous peoples and ethnic minorities, and above all women in these groups.
 
4.      Migrant workers face widespread discrimination in access to employment, and many encounter discrimination when employed, including access to social insurance programs.
 
5.      Rising numbers of women and men experience discrimination on religious grounds, while discrimination based on political opinion tends to take place in the public sector, where loyalty to the policies of authorities in power can be a factor in access to employment.
 
6.      Work-related discrimination continues to exist for many of the world’s 650 million persons with disabilities as their low employment rate reveals.
 
7.      Persons with HIV/AIDS can suffer discrimination through mandatory testing policies, or testing under conditions, which are not genuinely voluntary or confidential.
 
8.      In the European Union, 64 per cent of those surveyed expected that the economic crisis would lead to more age discrimination in the labour market.
 
9.      In a limited number of industrialized countries, discrimination based on lifestyle has emerged as a topical issue, especially in relation to smoking and obesity. (WCxKit)
 
 
The Global Report recommends four priority steps to combat discrimination including the promotion of the universal ratification and application of the two fundamental ILO Conventions on equality and non-discrimination; the development and sharing of knowledge on the elimination of discrimination in employment and occupation; development of the institutional capacity of ILO constituents to more effectively implement the fundamental right of non-discrimination at work; and strengthening of international partnerships with major actors on equality.
 
 
1. Equality at Work: The Continuing Challenge, Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 100th Session 2011, International Labour Office, Geneva.
 

Author Rebecca Shafer
, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact:RShafer@ReduceYourWorkersComp.com.

 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Ohio Fire Chief Loses Discrimination Suit in Federal Court

The Columbus (Ohio) Fire Division battalion chief who was the first female in that position has come up short in the discrimination lawsuit she filed against the city in federal court.
 
 
According to The Columbus Dispatch, U.S. District Judge Michael Watson dismissed Yolanda Arnold's claims that she had been harassed due to the fact she is black and that she had suffered retaliation because of her discrimination claims. Arnold also claimed she was humiliated and embarrassed. (WCxKit)
 
 
Watson ruled recently that Arnold did not offer specific proof of her allegations in three years of court proceedings that included a number of depositions of witnesses and presentations of exhibits like emails, newspaper stories and other documents.
 
 
According to Watson, a large amount of the evidence was hearsay, which was not admissible direct evidence of discrimination.
 
 
Arnold, 55, who is still a Columbus fire battalion chief, said recently that she is appealing the judges decision to dismiss her suit.
 
 
The lawsuit originated from allegations by city building inspectors in 2004 that fire inspectors under Arnolds command were missing inspections and collecting overtime pay.
 
 
Separate investigations by the Columbus police and fire divisions detected no wrongdoing. A third investigation, by a private attorney, reported management problems in the Fire Prevention Bureau, which Arnold oversaw, but it also found that claims of racial discrimination in the bureau were unfounded.
 
 
At the time of the third investigation, Fire Chief Ned Pettus accused Arnold of lying to investigators and suspended her for a week. She also was removed from the Fire Prevention Bureau.
 
 
Arnold filed the lawsuit in January 2008. Watsons ruling was in response to a request from the city for a summary judgment against Arnold.
 
 
Ten other Columbus firefighters who were employed as fire inspectors filed three similar discrimination lawsuits against the city in federal court. (WCxKit)
 
 
Watson dismissed a pair of those suits on March 31, the day he also threw out Arnolds. A third is pending.
 
  
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact:Info@ReduceYourWorkersComp.com.
 
 
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

Online College To Pay $260,000 To Settle EEOC Lawsuit Charging Sexual Harassment

Arizona-based High-Tech Institute Inc., doing business as Anthem College Online, will pay $260,000 as part of a settlement of a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.
 
 
In its suit in U.S. District Court for the District of Arizona (Civil Action No.CV-09-2041-ROS), the EEOC charged that Anthem College subjected female employees to repeated sexual harassment by supervisors. (WCxKit)
 
 
According to the EEOC, six female admissions representatives working at the Phoenix, Ariz., location were frequently sexually harassed by three supervisors.  EEOC allegations included that the supervisors engaged in unwanted sexual touching and comments, writing sexually suggestive e-mails and soliciting sex from employees during unwelcome visits to the their homes in the early morning hours. Some of this abusive behavior was witnessed by other Anthem College employees, the EEOC said.
 
 
The EEOC maintained that Anthem College knew or should have known about and tolerated this sexually hostile work environment caused by its supervisors. The agency said the company’s former human resource manager wrote that Anthem College employees were fearful to come forward because an alleged harasser was seen drinking and socializing with upper management and that there was blatant disrespect to employees and rampant poor management.
 
 
According to the EEOC, the company unreasonably delayed removing a class member from under the supervision of an alleged harasser who, the company’s own former human resources manager testified, was a “psychopath.” The EEOC argued that despite Anthem College’s knowledge about the harassment, the company failed to take reasonable steps to investigate and remedy the harassment.
 
 
“Employees who have an official or strong duty to communicate to management are considered part of management,” said EEOC Regional Attorney Mary Jo O’Neill of the Phoenix District Office, which originated the legal action. “Here, there was a breakdown in reporting by persons, whose job descriptions required them to report any issues affecting the normal operation of the admissions department, including sexual harassment. They failed to do so, with serious consequences.”
 
 
In addition to the settlement requiring Anthem College to pay $260,000 to the former employees, Anthem College also must investigate any further complaints of sexual harassment, provide training for managers and supervisors on conducting sexual harassment investigations and post a notice that harassment of Anthem College employees will not be tolerated. (WCxKit)
 
 
EEOC Phoenix District Director Rayford Irvin added, “We insist that companies fulfill their obligation to protect employees from sexual harassment and provide the necessary training to ensure this protection."
 
 
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact:Info@ReduceYourWorkersComp.com .

 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Wal-Mart Opens Up Checkbook to Compensate Group of Hispanic Employees

Wal-Mart has agreed to pay $440,000 to a group of Hispanic employees in Fresno who say they were subjected to ethnic slurs and derogatory remarks by a co-worker.
 
 
The settlement was announced recently by the Equal Employment Opportunity Commission.
 
 
The EEOC sued Wal-Mart and its affiliate Sam's Club in 2009, alleging the workers were being harassed and that Wal-Mart failed to halt the mistreatment in a timely manner a charge Walmart has denied. (WCxKit)
 
 
At least nine employees of Mexican descent and one, who is married to a Mexican, claim they endured ethnic slurs on a daily basis by a co-worker, who was also Hispanic. The workers, who provided food samples to customers, complained in April 2006, but no immediate action was taken, EEOC officials report.
 
 
Instead, the harassment intensified, according to Christine Park-Gonzalez, an EEOC program analyst in Los Angeles.
 
 
It was not  until the workers filed a complaint with EEOC in October that Sam's Club fired the harasser in December 2006.
 
 
According to Wal-Mart spokesman Greg Rossiter, the company fired the worker once the full extent of the allegations was brought to the company's attention.
 
 
As part of the settlement, Wal-Mart also agreed to make changes in how it deals with these issues at its Fresno and Bakersfield Sam's Club stores. (WCxKit)
 
 
The company committed to a three-year agreement to provide training to employees regarding anti-discrimination laws; teach managers how to investigate and report harassment complaints; and create a tracking system for complaints.
 
 
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact:Info@ReduceYourWorkersComp.com.
 
 
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

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