A Step-by-Step Guide to Handling Discrimination Complaints and Reasonable Accommodations By Charles F. Walters, Esq. SEYFARTH SHAW LLP [email protected];

A Step-by-Step Guide to Handling Discrimination Complaints and Reasonable AccommodationsBy Charles F. Walters, Esq.

SEYFARTH SHAW LLP

[email protected]; (202) 828-5371

Copyright 2012 Seyfarth Shaw LLP

Workplace Investigations

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Purpose of an Investigation

• Gather relevant facts in response to a workplace complaint so that management can make a credible, sound, and expeditious determination concerning:

• what actually happened;• how it ought to be resolved; and,• what can be done to prevent future problems

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Investigation Checklist/Protocol

• Identify potential interviewees and their relationships to the matter

• Decide the order of interviews• Identify documents to be reviewed• Prepare an outline of questions• Determine the format for recording information from

witnesses• Review the investigation plan periodically• Prepare appropriate pre- and post-investigation

documents

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When a Complaint is Made

• Duty exists• Even if complainant ask you “not to do anything”• Even if you learn about the complaint second hand• Even if a claim appears to be fabricated by the

complainant (the claim should be investigated)

NOTE: Responsive action (telling alleged wrongdoer to “steer clear” of the complainant) is no substitute for an investigation

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When No Complaint is Made

• If employer learns of wrongdoing, prudence requires an investigation• avoids allegation that the employer knew

something but took no action• required to establish that the employer took

“prompt/remedial action” (affirmative defense to hostile work environment claims)

• improves employee morale

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Preparing for an Investigation

• Identify the need for investigation• Assess the goals of the investigation• Select the appropriate investigator• Discuss parameters of investigation with

management representatives and legal counsel

• Follow Investigative Checklist/Protocol

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Goals of an Investigation

• Conduct a prompt, through, and confidential assessment of the allegations at issue

• Assess and analyze the factual data gathered in the investigation

• Where warranted, institute remedial measures to prevent a reoccurrence of the problem and discipline the offending parties

• Improve factual basis for corporate decision-making

• Identify violations of corporate policy or the law• Halt discriminatory, harassing, unsafe or criminal

activity• Develop a thorough record on which to base a

disciplinary decision and/or legal opinion

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Goals of an Investigation Cont.

• Preclude or minimize the likelihood of a government investigation

• Curtail adverse publicity• Avoid the likelihood and costs of litigation

and its disruptive effects on business operations

• Limit corporate liability• Protect future victims

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Before Conducting an Interview with the Complainant

• Make sure those involved know (and are informed in writing as appropriate):• Reports of wrongdoing are taken seriously;• Company is committed to ensuring a workplace free of

harassment/discrimination (if EEO investigation);• Investigation will be prompt and thorough pursuant to

company policy;• Confidentiality will be observed to the extent practical to

protect everyone's privacy; • Retaliation for making a report of misconduct or

harassment is forbidden by the company; and• Report to investigator or anyone in HR any perceived

retaliation or further incidents of misconduct or harassment

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Establishing the Facts

• Get a description of each incident of misconduct, including date, time, place, nature of conduct

• Identify the complainant's response to each incident, if applicable

• Identify any witnesses to the alleged incident(s)• Identify any other persons who may have

relevant knowledge• 5 W’s – What Happened? When? Where? Who?

Why? (Also How?)

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• Ask as to each incident: • Related documents?• Anyone else told about the incident?• Any witnesses

• Determine and record the limits of the complainant's cooperativeness

• Determine the reason for delay, if any, in reporting the alleged misconduct

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• Ask the complainant what type of relationship she/he had with the alleged wrongdoer

• Explore the need for any interim action while the investigation is pending

• With a harassment case, ask for the complainant’s thoughts and suggestions regarding the possibility of a continued working relationship with the alleged harasser

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Before Conducting an Interview With the Accused

• Make sure the accused knows:• The purpose of the meeting is to ask about

allegations of workplace misconduct;• No conclusions have been reached;• Company is committed to ensuring a workplace

free of harassment/discrimination (if EEO investigation);

• Employee’s chance to tell own side of story;• Full, truthful cooperation is expected; • Confidentiality; and• Employee is not to interfere with the

investigation

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Before Conducting an Interview With the Accused

MOST IMPORTANTLY:

• Any retaliation is forbidden, regardless of whether the allegations now being investigated are true, including: • Demoting, transferring or dismissing the

complainant or any employee involved in the investigation

• Providing negative evaluations of the complainant or any employee involved in the investigation

• Denial of overtime or other job benefit to complainant or other employees involved in the Investigation

• Giving the “cold shoulder” to the complainant or other employees involved in the investigation if the accused is a manager

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Interviewing the Accused

• Begin with a general description of the allegations and ask open-ended questions to get narrative responses

• Then, identify each alleged improper statement or action in detail and get a denial, admission, or explanation as to each detail

• As follow-up questions and questions to test the credibility of response; particularly blanket denials

• The source of the employer’s information need not be disclosed

• Explore any working or personal relationship between the complainant and the accused

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Interviewing the Accused

• Inquire about any documents or other potential witnesses

• Explore any reasons the complainant has to lie, e.g., soured romance, work disappointment, job performance, personal problems outside work

• Give the alleged wrongdoer the opportunity to provide context, alibis or mitigating circumstances

• Consider whether to ask for written responses to the allegations

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Interviewing Witnesses

• Explain objectives of meeting• Go through each incident the witness is alleged to

have observed. (W’s)• Are there other witnesses that may have observed

the incident(s) at issue?• Have you observed incidents other than those that

were alleged by the complainant?• Has anyone told you about other incidents of

inappropriate conduct/behavior? (W’s)• If the witness denies any knowledge of inappropriate

behavior, ask witness if he/she knows of any reason why allegations would be made and why he/she would be named as a witness?

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Mistakes in Procedure to Avoid

• Do not search the accused’s desk, papers, e-mails or voice mails, locker, etc. without consulting with counsel first

• Do not secretly tape record interviews, telephone calls or intercept e-mails without first consulting with counsel

• Do not attempt to keep interviewees at an interview site against their will

• Be sure to communicate the investigation results in writing to both the accused and the complainant

• Do not put things in writing – particularly emails - that you do not want to defend in a lawsuit, unless they are protected by the attorney-client privilege

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HANDLING REASONABLE ACCOMMODATION REQUESTS

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Major Life Activities in Determining Disability

• MLAs include “[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.”

• Operation of bodily functions including “the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.”

• Whether something is a MLA is not determined by reference to whether it is of “central importance to daily life.”

29 C.F.R. § 1630.2(h)/(i)

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List Of Impairments CoveredIn “Virtually All” Cases

• Specifically listed conditions:• Deafness, blindness, intellectual disability (formerly termed

mental retardation), partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, Human Immunodeficiency Virus (HIV) infection, multiple sclerosis, muscular dystrophy; major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

• List is not exhaustive

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What is a Reasonable Accommodation?

• The U.S. Department of Justice defines a reasonable accommodation as "any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities."

• Duty is to provide reasonable accommodation to those who have an actual disability or a record of a disability (but not those who are regarded as disabled)

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Essential Job Functions

Key Question: Is An Individual Otherwise Qualified to Perform the Essential Job

Functions of the Job?

• Does the individual meet the basic qualifications of the job?

• Can the individual perform the essential functions of the job with or without reasonable accommodation?

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• A job function is essential because:• The reason the job exists is to perform that function• There are a limited number of employees available

among whom the performance of that function can be distributed

• The function is highly specialized

• Employers are the best judges of whether an function is essential, but the best time to do it is before a disability claim.

• Take control by updating job descriptions and other materials defining essential functions (requisitions, advertisements, postings, handbooks and rules, contribution guides, performance evaluations).25 |



• Job descriptions are not required, but…• Properly drafted, pre-existing job descriptions will

be considered evidence of essential job functions and the starting place for determining whether accommodations are reasonable.

• Consider not only job requirements and hard skills such as experience and education, but also production standards, environmental and safety factors, communication, and “soft skills” such as working with others, teamwork, service-orientation, and job presence, and other skills.

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Essential Function Analysis

• Essential vs. marginal job function analysis• Amount of time spent performing the function• Consequences of not performing the function• How past incumbents worked in same job• Experience of current incumbents in same or

similar jobs• Essential job functions for the same position

may vary depending on the location or business unit where the individual works

NOTE: Functions that are not essential are considered “marginal”

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Examples Of Reasonable Accommodations

• Making existing facilities readily accessible;• Job restructuring (as to non-essential duties);• Part-time or modified work schedules;• Special equipment of devices;• Alternate open position available;• Adjust examinations, training materials or

policies;• providing qualified readers or interpreters;• Leave (paid or unpaid); and• reassignment to a vacant position

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NOT a Reasonable Accommodation

• Supplying personal use items (eyeglasses, hearing aids not designed for the job)

• The employee’s personal preference when the employer has offered adequate accommodation

• Eliminating essential functions of the job

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Selecting Reasonable Accommodations

• Analyze the job and determine the essential functions

• Determine job-related limitations caused by disability

• Identify potential accommodations and assess the effectiveness of each

• Select and implement an effective accommodation

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Undue Hardship

• Undue hardship based on cost is determined based on the net cost to the employer.

• An accurate cost-benefit analysis may be easy to make or very difficult.

• A court or regulatory agency is unlikely to find expense is an obstacle with large or wealthy employers.

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Undue Hardship

• Where expense is unlikely to be accepted as undue hardship, consider instead at whether the accommodation would be unduly disruptive to other employees’ ability to work, whether there is a significant disruption to business operations, or a significant impact on the ability to conduct business.

• Example from 1992 EEOC guidance: A Nightclub wouldn’t be required to turn up the house lights for a sigh-challenged server, because that would alter a fundamental way of operating so that customers can focus on the show.

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Phrases to Initiate an Interactive Process

When a disability comes up in connection with a performance issue:

• “This job requires X”• “You’ve let me know there’s an issue with your

doing X”• "Let's work together to resolve it”• "We'll get back to you” (when manager needs HR

help)or• “How can I better understand your situation and

help you meet job requirements?”

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Developing an Interactive Process

• Phase One: Developing An Overall Approach To Follow• Reasonable Accommodation Policy• Job Descriptions• Determining who will handle requests and engage in the

interactive process with employees• Consider whether simple accommodations can be

granted as a matter of course (without requiring further medical documentation), especially if the impairment is short-term

• Train supervisors and managers to recognize accommodation requests and handle those appropriately

• Keep medical records separate and confidential

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Developing an Interactive Process

• Reasonable Accommodation Policy• Should prohibit discrimination on the basis of

disability and reference reasonable accommodation

• Should not dwell on undue hardship• Make sure “disability” is included in your EEO

and non-harassment policy

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Developing a Reasonable Accommodation Process

• Reasonable Accommodation Policy (cont’d)• Have a clear process for requesting a RA

• Who should employee submit his/her request to?• Must still engage in interactive process, even if not submitted to specified

person

• Suggest written request, but employer cannot ignore oral request

• Brief statement explaining interactive process

• Pros and cons of:• Detailed explanation of how requests will be handled• Defined time period for processing requests• Having a reviewer/review committee for requests that get

denied

• Detailed Job Descriptions!

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Implementing an Interactive Process

• Phase Two: Implementing an Interactive Process

• Interactive Process with the Employee• Medical Documentation• Document every step of the interactive process

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• Once an employee requests accommodation:• Act promptly; unnecessary delays can result in a

violation of the ADA • Respond in writing that request has been received and

explain next steps• Job analysis• Continue dialogue with employee regarding the nature of

the disability, the restrictions and possible accommodations• Never say never at the beginning of the interactive

process• Think out of the box• Consider utilizing outside resources to help identify

possible accommodations such as the Job Accommodation Network

• Determine whether further medical documentation is necessary

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• An employer may require medical documentation verifying the disability, restrictions and need for accommodation• Limit to specific condition at issue• Employee has duty to cooperate• Remember new GINA requirements

• Do not request family medical history• Include safe harbor language in any request for medical

information from the employee• Include safe harbor language in any request for medical

information from the employee’s HCP• Include “don’t collect” language if you are requesting that a

HCP conduct a medical exam

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• Considerations when communicating with a HCP• Considerations when communicating with the

employee’s own doctor• Considerations when sending the employee to

an employer exam/IME• HIPAA consent must be narrowly tailored

regardless• Beware of pitfalls of an employer-required

exam

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• Document, document, document• Request for accommodation form/confirmation of

accommodation request• Possible accommodations considered• Subsequent interactive steps• Requests for medical documentation including if no

response, or incomplete/insufficient response• Contacts with outside resources (if applicable)• Employer’s decision granting or denying accommodation

request (include reasons if request denied)• Accommodation log

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Meeting

• Document each meeting• Consider developing form document for use in

the meetings• Get the forms signed by all present at the

meeting, including the employee• Invite Union officials if collective bargaining

provisions are implicated• List any job functions the employee cannot

perform• List any accommodations requested by

employee

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Tips Regarding Job Reassignment

• Employer is not required to create a new position for an employee

• Employee must be qualified for any positions offered

• Employer should work with HR in searching for potential positions

• Document all meetings!

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Concluding The Reasonable Accommodation Process

• Phase Three: Concluding The Reasonable Accommodation Process

• Follow-up with employee to determine if accommodation is assisting the employee in performing the essential functions of the job

• Make certain the employee is working within his/her restrictions

• Monitor and communicate with employee regarding any time limits on accommodation

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Uncooperative Employees

• Employees need to cooperate with the interactive process• If the employee fails to supply requested medical

proof, employer can refuse the accommodation. Confirming requests in writing can help. “Documentation was not provided despite requests on (dates).”

• If disability issue has surfaced for the first time in the context a performance issue, apply an evenly enforced work rule focusing not on the disability, but on the performance. Then start the interactive process.

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Helpful Tips

• List any accommodations offered by employer• Summarize the discussion at the meeting• Document whatever resolution, and if employee agrees to

specific accommodation• Prior to the meeting, the HR representative should try to

determine what accommodations the employer is willing to do

• Establish protocol and proper forms for handling and documenting accommodations requested and offered

• Put one person from HR in charge of reviewing accommodation requests

• Train managers to recognize accommodation requests

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Proactive Steps Employers Should Take Now

• Remember:• Increased focus on reasonable accommodation• Interactive process must be an individualized assessment• Consistency and uniformity of approach is key• Documentation is critical to prove employer engaged in the

interactive process and reasons for denial of reasonable accommodation (undue hardship)

• Medical documentation requested should be tailored to the specific circumstances

• Applicability of GINA

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Documents

A Step-by-Step Guide to Handling Discrimination Complaints and Reasonable Accommodations By Charles F. Walters, Esq. SEYFARTH SHAW LLP [email protected];