March 2013

Let’s say that you’re working for a company at a retail counter with a great deal of public interaction every day. Suppose that your storefront is in the middle of an affluent neighborhood, right next to a Ruth’s Chris Steakhouse and Sun Trust Bank. Now let’s say that because you have a poor landlord the flowers and front entrance haven’t been maintained for some time and are overgrown with weeds and unattractive. Efforts to get the landlord to clean things up have failed.

What would you do?

This can be a great interview question, providing valuable insight into the character of job candidates. Some people might suggest that you sue the landlord. Others would rather first hire a landscaper to fix things up, and then sue the landlord. Some would simply look the other way. Still others would prefer to stop by on a Saturday with a few plastic bags, a small shovel, a small rake, and a few crates of flowers – and just deal with the problem.

This is a true story. The retail operation in question was a North Palm Beach post office. I don’t know if it still in that condition but it amazes me that the employees of the branch would allow themselves to walk by this mess every single day and do nothing about it – for their own sake, never mind anyone else’s! When I asked them about it they were quick to complain but reluctant to simply fix the problem.

Any time that I’ve rented an apartment, home, or office, I’ve made an effort to spruce it up- because that’s who I am. I couldn’t stand to look at those weeds every day; it would drive me nuts. But of course, most people would rather point a finger and, if necessary, file a lawsuit than just step in and get something done.

What type of employees and managers are you looking for? Do you want people who will wait for somebody else to pick up their responsibilities and go first – or those who will just spend a few hours and get that nagging thing finally done? Try this as an interview question and you’ll find out which kind of employee will come to work for you!

I have a confession to make: I love In-N-Out Burger. As with any type of fast food, you can’t eat it frequently, but it’s amazingly good when you do. Both of my sons worked for In-N-Out; and the company has some of the best employees and managers in the fast food industry. They pride themselves in being a well-meaning Christian company. They pay more than anyone else in the industry and treat their employees with respect. Unfortunately, two plaintiffs, both of whom are black and older than 40, were rejected for employment and, after seeing an attorney, filed a class action lawsuit.

Companies such as In-N-Out can face discrimination and disparate impact type claims because their statistics for hiring don’t match the general applicant pool. If this proves out to be the case is there in fact a bias? I don’t see it and doubt if the company practices any systemic discrimination. The only bias I can see is that In-N-Out demands a high level of performance from its employees. Very simply, if you’re too old to move quickly, you’re going to get run over by a quicker and probably younger employee. I would like to think that regardless of your age, race, or sex, if you can play team the In-N-Out Burger way and produce as efficiently as the other workers, you certainly deserve a job.

My favorite comment among all the comments posted about this case (with more than 90% pro In-N-Out) was:

“Actually, In-n-Out does discriminate…

…against lazy, shiftless, self-entitled whiners, which is why you see a lot of ambitious, courteous, and diligent Latinos, Asians, whites, and Samoans working there, and which is why its service is so fantastic.”

Although many women work through their pregnancies without difficulty, some of them with physically demanding jobs or complicated pregnancies might seek accommodation at some point. However, the Americans with Disabilities Act (ADA) does not define pregnancy as a disability or disorder, but as a natural process related to reproduction.

If pregnancy is not a disability, are pregnant women entitled to accommodation? What about women with pregnancy-related impairments? Are they covered by the ADA Does the Pregnancy Discrimination Act (PDA) entitle pregnant women to the accommodations they need to continue working during pregnancy? Are there state laws that entitle pregnant women to accommodation? These are the types of questions are being examined by the National Women’s Law Center (NWLC) and other women’s legal organizations. According to NWLC, both the ADA and the PDA often require reasonable accommodation for pregnancy.

Let’s start with the ADA. The regulations interpreting the ADA Amendments Act (ADAAA) state that pregnancy-related impairments can meet the definition of disability if they substantially limit a major life activity. Pregnant employees with impairments that meet the definition of disability will be entitled to an accommodation under the ADA. Because the ADAAA has broadened the definition of disability to include many temporary and less severe impairments, more workers with pregnancy-related impairments will now qualify for direct coverage.

In addition, the interaction between the PDA and the ADA will often result in a heightened duty to accommodate even pregnant employees who do not meet the ADA’s definition of disability. NWLC argues that the PDA requires employers to treat pregnant women at least as well as other employees with similar limitations in their ability to work. Because the ADA requires employers to accommodate a wider variety of medical conditions, pregnant women will often have similar limitations to people who are entitled to accommodations under the act – which means that they’ll be entitled to accommodations as well. For example, the Equal Employment Opportunity Commission (EEOC) has made it clear that the ADA requires reasonable accommodation of a temporary back injury that leaves an employee unable to lift 20 pounds for a few months. Because pregnant workers must be treated as well as employees with similar work limitations, a worker who has been instructed not to lift weights of more than 20 pounds because of her pregnancy must also be accommodated, according to NWLC.

To ensure that employers’ legal obligations to provide accommodations are unmistakable, the NWLC and a broad coalition of groups from the health, disability, and women’s rights communities are urging Congress to pass the Pregnant Workers Fairness Act (PWFA) – draft legislation which states that pregnant women are entitled to reasonable accommodations that can be provided without undue hardship to an employer. These are the same types of accommodations that are available to people with disabilities under the ADA. In addition, some state laws already give pregnant workers’ rights to workplace accommodations, as described in a recent report by Equal Rights Advocates.

Accommodating pregnant employees is also in the financial interest of employers. The NWLC provides several sound business reasons why employers should accommodate their pregnant employees in the same way that they do for workers with disabilities. Data show that the costs of these accommodations are likely to be minimal, and that providing them will have bottom- line benefits to the employer: including reduced workforce turnover, increased employee satisfaction and productivity, and lower Workers Compensation and other insurance costs.

Despite the legal and financial arguments, some employers are still not accommodating pregnant employees. This is why the EEOC recently identified “accommodating pregnancy-related limitations under the ADAAA and the PDA” as a priority area for its enforcement efforts through 2016.

If you are an employee who was not accommodated during your pregnancy or you believe you were discriminated against on the basis of pregnancy, the NWLC would like you to share your story. Employers interested in sharing their experiences accommodating pregnant employees or in consulting about best practices are also invited to contact NWLC, at pregnancyandwork@nwlc.org.

Keep in mind that when it comes to providing accommodation ideas, Job Accommodation Network (JAN) consultants will brainstorm accommodation ideas for anyone with any type of limitation, including limitations related to pregnancy, whether or not the ADA covers the condition. So, if you’re an employer trying to accommodate pregnant employees, or a pregnant employee looking for accommodation ideas to offer your employer, feel free to contact JAN for assistance!

-Linda Carter Batiste, J.D.,

Principal Consultant with comments from the National Women’s Law Center

P.S. Speaking of job accommodations, HRThatWorks members can join us for a joint webinar with JAN on Providing Accommodations for Employees with Mental Health Impairments, to be held March 20th at 1PM EST by going to https://www1.gotomeeting.com/register/324256449.