When is it Age Discrimination; Keeping Your Credibility; Final HIPAA Portability Requirements; New Tool for Conducting Background Checks
By Dana Stripling, JD, Garlo Ward, P.C. www.garloward.com
Posted Monday, April 5, 2005
EVEN WHEN YOU DON’T INTEND IT?
The U.S. Supreme Court ruled this week for the first time that older workers can file “disparate impact” claims under the Age Discrimination in Employment Act (ADEA). Until the ruling on March 30, 2005, age discrimination cases were limited to situations where a manager, supervisor or other decision-maker took some adverse action against an employee specifically because they thought the employee was just “too long in the tooth” for the job. Now, however, a company policy or practice that is “neutral” on its face (including everything from job requirements to tenure) may be attacked as having a discriminatory “impact” on employees 40 years or older.
But there is still one important difference. The Supreme Court went on to say that the law permits any otherwise prohibited discriminatory action “where the differentiation is based on reasonable factors other than age.” (This defense is not available in other Title VII disparate impact cases.)
In the case before the Supreme Court, police officers over the age of 40 claimed that a city policy provided greater raises to police officers and dispatchers who had less than five years of tenure compared to those with more seniority. The older workers claimed that the policy, although facially neutral, had a disparate impact on their age group, since the majority of those with more seniority were over the age of 40. The employer prevailed, however, under the “reasonable factors” defense mentioned above. The Court found that the disparate impact was attributable to the city’s decision to give raises based on seniority and position, which are “unquestionably reasonable” factors given the city’s goal to attract and retain qualified people and compete with other public sector agencies. (Smith, et al. v. City of Jackson, Mississippi, et al.)
Are your policies or practices having a disparate impact on older employees? Stay tuned for more on this issue in upcoming articles.
KEEP YOUR CREDIBILITY – A 10-POINT CHECKLIST
Got a Court Date? Trying to Avoid One? To avoid becoming the target of dis�crimination and other lawsuits, you need to protect your credibility as a leader and manager. Attorneys will always exploit credibility vulnerabilities to discredit your and your facility’s defense at trial. But some training and monitoring can prevent this inevitable attack from an employee lawsuit. Following are 10 particularly vulnerable spots that the plaintiffs’ attorneys will use to dis�credit your case. Double-check your operations to see how you would look on the witness stand.
1. Careless or non-existent documentation. There is very seldom a “smoking gun” showing the discriminatory intent of a manager or supervisor. Instead, circumstantial evidence can lead juries or judges to deduce that discriminatory intent was most likely involved. Documents or statements made long before a lawsuit is filed usually provide the source for such conclusions. Juries will always want to review the documents, partic�ularly e-mail, in deciding whether there was any discriminatory intent. So, clich�s and references to employees’ age, presumed disabilities, or other illegal factors will be sure to be blown up poster-sized by the plaintiffs’ attorneys.
2. Not knowing policies and procedures. If managers and supervisors are familiar with or at least reference the company’s policies and procedures, how can they enforce them equally? Know them well, perform in-service trainings and newsletter blurbs about particular policies. And ALL policies should be signed and dated by every employee reflecting they received them.
3. Careless statements to govern�ment agencies. Whether responding to the Texas Workforce Commission, Equal Employment Opportunity Commission, OSHA or some other agency, be careful and thoughtful about your written statements or affidavits and verbal statements. Speak fully understanding that the employee’s attorney will read your statements, particular�ly affidavits, and introduce them at trial, especially if your rendition of the events has changed. Be careful. Be consistent.
4. Inflated appraisals. It happens a lot. Supervisors frequently hedge or inflate true performance evaluation. Or, quite frequently, they verbally discuss a performance issue with the employee but enter nothing in the file. Claiming poor performance later on will be impeached if it wasn’t important enough to put in the file or warn the employee. Train your supervisors in honest evaluation. Sporadically double-check your DON or other supervisor’s performance evaluations to make sure they reflect real assessment and constructive comment.
5. Ignoring complaints and poor morale. Never summarily dismiss employee complaints of unfairness or claimed illegalities. You are officially on notice of a potential problem that may be revisited later in court. Dismissive comments like “work it out yourselves” or “Oh, that’s just her” may be incriminating from the witness stand.
6. Changing explanations mid-stream. Whenever your explanation for firing or disciplining an employee changes over time, your credibili�ty is shot. Conflicting explanations are prime for appearing to be excuses conjured up as a mere “pretext” for ille�gal discrimination.
7. Ignoring the “interactive” part of the ADA’s interactive process. When considering reasonable accommoda�tions for a disabled worker, companies often present a take-it-or-leave-it proposi�tion without really discussing other options with the employee first. The EEOC and the courts have repeatedly stated that determining accommodations under the circumstances should be a two-way dialogue to reach a reasonable solution.
8. Singling out one employee. Juries and judges alike are very adept at discerning a setup. Yes, your attorneys always say, “document, document, document.” But you can over document, too, especially when intensified documentation occurs right before firing.
9. No real effort to rehabilitate an employee. The TWC will always ask if you notified the employee of a performance problem and gave them a chance to improve before firing them. Juries all fear being fired and will sympathize with an employee given no chance. You want to show a concerted effort to bring the employee along; then, if s/he just can’t or won’t correct the problem, you are completely justified in the eyes of the agencies, judges and juries for firing the worker. Now, that’s credibility!
10. Being overly indignant or angry. You can have a great case legally, but if your supervisors or man�agers come across badly, you’ve just made your attorney’s job much more difficult, frustrating and expensive. Personal issues and antagonisms should be dealt with separately than on paper in an employee’s file or on the witness stand.
FINAL HIPAA PORTABILITY REQUIREMENTS:
WHAT’S NEW?
On December 30, 2004, the federal government issued final portability regulations under the Health Insurance Portability and Accountability Act (HIPAA). This sweeping rewrite of the 1997 interim rules will force changes to many aspects of your group health plan — including increased reporting obligations and further restrictions on pre-existing condition exclusions. The rules take effect the first plan year after July 1, 2005, and noncompliance can be expensive.
Have you determined what you as an employer need to do to become compliant under the new rules and how to avoid the most common mistakes? Keep an eye out for upcomijng articles when we will advise you to the following issues and more:
1. How pre-existing condition exclusions are redefined to stop common practices
2. New notice requirements
3. What new coverage may be provided without triggering the portability rules
4. What health care triggers the six-month look-back rule
5. What is prior coverage for newborn
6. New written procedure requirements
NEW ONLINE TOOL FOR
CONDUCTING BACKGROUND CHECKS
Want to check the academic credentials of your next batch of job applicants? Check out the new Department of Education website that contains a master list of some 6,900 accredited colleges, universities, and career and trade schools. The site will help combat the growing problem of fraudulent degrees. Be aware, though, that there are legitimate schools that are not accredited and are not on the list. To view the list, go to: http://www.ope.ed.gov/accreditation/.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2005 by Garlo Ward, P.C., all rights reserved.
Lakeway, Texas 78734 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
