The Captain
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Post by The Captain on Dec 10, 2012 14:10:51 GMT -5
www.cato.org/pubs/regulation/regv23n1/deleire.pdfThe UN thread on the ADA act brought this article to mind. The rate of employment among americans with disabilities has actually gone down since the passage of the ADA. "To meet the reasonable accommodation provision of Section 101(9), an employer may be required to modify facilities, redefine jobs, revise work schedules, provide special equipment or assistance, give training or other forms of support, or eliminate nonessential job functions. A business can avoid an accommodation only if it would cause “undue hardship” to the nature or operation of the business." Having lived through a ADA, EEOC, FMLA nightmare where the employer literally spent tens of thousands of dollars, changed hours, limited job responsibilities in an effort to accommodate a "protected individual" and STILL got sued (because they didn't get the promotion they felt they deserved) I will tell you I will think long and hard before hiring another person who belongs to this protected class. There are no clear rules and based on my experience people are just trying to use it to line their pockets.
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milee
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Post by milee on Dec 10, 2012 14:19:35 GMT -5
The problem is exacerbated by the fact that there are legions of attorneys and not for profit groups that will gladly provide free legal services to people who feel they have been discriminated against, which makes a suit even easier. As an employer, there is no group who is going to pay your legal fees to defend your business should you be sued.
So you may spend tens of thousands of dollars and gone through all the other hoops, but if you get sued, you'll also be spending $50k - $100k to defend yourself. Even if you win, you're still out that $50k - $100k.
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thyme4change
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Post by thyme4change on Dec 10, 2012 14:28:50 GMT -5
That is a bummer. With all of these types of things, it starts out really helpful. There is absolutely no reason I couldn't still do my job if, say, my legs got chopped off tomorrow and I was in a wheel chair. My job requires very little standing up, although I guess my business travel might be a little augmented. Unfortuntely, some people get their mitts on things, and one bad apple ruins the barrel. If you have skills and are willing to work - asking for a little accomodation should be no big deal. But if you are looking to screw someone, you can find every loophole and really mess with people.
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The Captain
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Post by The Captain on Dec 10, 2012 15:02:34 GMT -5
I can say with all honesty that I'm more concerned with your ability to do a job than how you may be limited in other areas. If I need to reconfigure a workstation to accommodate a wheelchair for example, that's reasonable. If I have to CONSTANTLY have a back up plan in place to meet key deadline driven projects because an ADA individual can't meet deadlines that is to me, unreasonable. If (in an effort to manage this) I assign non-deadline driven work to the ADA individual then I get accused of discriminating against them and limited their career prospects.
If I have to hire extra staff to cover your job because you are not capable of working the same hours as everyone else is expected to, then that (to me) is not reasonable.
The problems is, what is reasonable to an unreasonable person?
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Tennesseer
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Post by Tennesseer on Dec 10, 2012 15:08:02 GMT -5
The Captain-do you hire these people off the street, sight unseen, to do your critical work or do you screen their resumes, contact previous employers for references, and interview them about job specifics along with what accommodations they may need to perform the duties and responsibilities of the job.
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milee
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Post by milee on Dec 10, 2012 15:40:16 GMT -5
I can't speak for how the Captain interviews, but one issue I've seen is that not all of the ADA covered disabilities are visible and some can develop after you've hired a person. Mental health diagnoses and certain medical conditions such as fibromyalgia can develop at any time, are hard to diagnose/disprove and are especially hard to screen for especially since it would be very uncommon for a potential employee to volunteer that information and an prospective employer certainly can't ask.
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The Captain
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Post by The Captain on Dec 10, 2012 16:09:59 GMT -5
I can't speak for how the Captain interviews, but one issue I've seen is that not all of the ADA covered disabilities are visible and some can develop after you've hired a person. Mental health diagnoses and certain medical conditions such as fibromyalgia can develop at any time, are hard to diagnose/disprove and are especially hard to screen for especially since it would be very uncommon for a potential employee to volunteer that information and an prospective employer certainly can't ask. Milee - you hit the nail on the head. Yes I interview and screen in person. In this case I was over-ridden (every alarm was screaming! in my head) by my direct manager because they (my manager) bought the "my prior job discriminated against me" because of my personal appearance (very obese) sob story hook line and sinker. We are VERY reasonable/progressive in hiring vets and the disabled so being used like this left a very sour taste in my mouth. The first ADA/EEOC compliant was filed less than 18 months after the hire date and the lawsuit less than two years after the hire date. The fact that the prior employer refused to provide a reference should have been a clear red flag. We later found out that there was a law suite pending with the prior employer as well (which is not admissible in our proceedings).
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The Captain
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Post by The Captain on Dec 10, 2012 16:11:42 GMT -5
The Captain-do you hire these people off the street, sight unseen, to do your critical work or do you screen their resumes, contact previous employers for references, and interview them about job specifics along with what accommodations they may need to perform the duties and responsibilities of the job. Tennesser - the ADA claims came only AFTER the employee had been hired. Yes we screen in person but see my previous post about warning signs being ignored. In this case I think we would have been sued for discrimination even if we did not hire the individual. They would have found a way.
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zibazinski
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Post by zibazinski on Dec 10, 2012 16:35:24 GMT -5
I feel sorry for employers who have employees pull this shit.
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Tennesseer
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Post by Tennesseer on Dec 10, 2012 17:37:22 GMT -5
The Captain-do you hire these people off the street, sight unseen, to do your critical work or do you screen their resumes, contact previous employers for references, and interview them about job specifics along with what accommodations they may need to perform the duties and responsibilities of the job. Tennesser - the ADA claims came only AFTER the employee had been hired. Yes we screen in person but see my previous post about warning signs being ignored. In this case I think we would have been sued for discrimination even if we did not hire the individual. They would have found a way. What was the employee's claim of discrimination? What accomodation did she ask for after she was hired?
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hoops902
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Post by hoops902 on Dec 10, 2012 18:09:06 GMT -5
::To extrapolate that onto the rest of said "protected class" is discrimination. ::
Yeah, but good luck proving it.
You'd be silly as an employer not to consider whether someone is going to cost your company a ton of money either in accomodation, hassle, or lawsuits. You just have to be smart enough to keep that stuff to yourself.
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Tennesseer
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Post by Tennesseer on Dec 10, 2012 18:18:57 GMT -5
I will tell you I will think long and hard before hiring another person who belongs to this protected class. this is where you will get bit in the posterior. You shouldn't think long and hard about their "status" - only their qualification, ability and interest in doing said job. If the employer in question hired them despite red flags with background/qualification check - well duh! They were foolish. To extrapolate that onto the rest of said "protected class" is discrimination.
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formerroomate99
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Post by formerroomate99 on Dec 10, 2012 18:36:24 GMT -5
I will tell you I will think long and hard before hiring another person who belongs to this protected class. this is where you will get bit in the posterior. You shouldn't think long and hard about their "status" - only their qualification, ability and interest in doing said job. If the employer in question hired them despite red flags with background/qualification check - well duh! They were foolish. To extrapolate that onto the rest of said "protected class" is discrimination. Very true, but don't think for a minute that this isn't going on all the time.
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The Captain
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Post by The Captain on Dec 10, 2012 20:34:42 GMT -5
Tennesser - here are just some of the accommodations:
Special order ergonomic chair custom fitted for the specific individual Private office with ergonomic couch for the invidual to go lay down on when the back pain became too severe (in an office where only the department head got their own office, and by department head I mean a department of 65+ people) Cubicle reconfigured to be 1.5 times the size of the individuals peers to allow for raising all of the storage cabinets off the ground (so the individual did not have to bend over) Ductwork moved to allow for greater air flow in individual's work area (apparently heat aggravated the back condition) Secretary assigned to go check with individual at start of day to pull files the individual would need to work on. Same secretary would go get the files at the end of the day to put them away.
The person filed for FMLA, which was granted, then filed for intermittent FMLA which meant they could take off without advance notice. They would work the minimum number of hours needed to keep benefits (32) and take FMLA each week for 8 hours. This during busy season when the rest of the department was working 55+ hours a week. When the FMLA started to run out the individual requested to be allowed to work from home to avoid the "stress" of having to drive an hour each way (something which was apparently not a problem when they applied for the job). When that was denied (NOONE works from home in our group, some of the data in our files is confidential and needs to be kept secure) the law suite was filed. The individual's lawyer filed a brief demanding the "right" to work from home under ADA. While it works it's way through the courts we have to find non-confidential work for the person to take home and have a backup staff always available (yes we added a headcount) to pick up their projects if the individual is unable to complete a project on time due to their "disability". Any work which is not deadline driven involves research or write-ups which is beyond the individuals abilities, or is clerical in nature and not "developmental" to the individual's career. So we have to keep assigning deadline driven work even there are repeat, well documented instances, of where deadlines were put in jeapordy because the individual could not meet them.
Did I also mention that the secretary now has to carry the files to and from the individual's car? I (at one point) asked our legal counsel if the individual was that disabled how were they able to get the files from their car into their home to work on? I was told not to address HOW the individual did their job, just the actual quality of work product.
So now the person gets to work from home two days a week. Comes into the office two days a week, and takes a day of FMLA each week, or works additional time from home to keep the FMLA clock ticking. We have to constantly juggle assignments to keep deadlines met. We are not allowed to take the individual off critical projects but the managers have to pick up the slack when the inevitable "episode" happens before a critical deadline.
So does this sound reasonable to you?
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zibazinski
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Post by zibazinski on Dec 10, 2012 20:44:33 GMT -5
It sounds like if I was this employer, I'd dissolve my company, unload the user, then re-organize later.
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The Captain
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Post by The Captain on Dec 10, 2012 21:31:58 GMT -5
The employer is a large national employer with over 60,000 employees whose name everyone on the forum would recognize. Shutting down is not an option.
The person is obviously being coached and targeted a place with "deep pockets". So people can scream discrimination all they want but creating "protected classes" IMHO does more harm than good. My personal experience supports this statement as does the study I referenced in my first post.
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midjd
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Post by midjd on Dec 10, 2012 21:34:13 GMT -5
In your specific situation I agree that is unworkable and hurting the company/its employees. I don't blame you for being pissed. However, I don't believe that situation represents the norm or majority of 'protected class' employees. So I can't say that these laws do more harm than good.
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Tennesseer
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Post by Tennesseer on Dec 10, 2012 21:38:28 GMT -5
Tennesser - here are just some of the accommodations: So does this sound reasonable to you? I always like to hear both sides of the story but based upon what you wrote, you have your hands full. Your Legal department is correct: how she gets stuff to her home is not to be focused on (much like asking an applicant how they plan on getting to work). It sounds to me (based upon what you have described) your company has gone beyond a 'reasonable accommodation' with this employee. The key word is 'reasonable' and what is reasonable to help her succeed in her job. When others have to be hired (benefits?) to pick up the slack for the employee it begins to become unreasonable. If you have any other disabled employees, are they able to work from home too? Heck-are any employees able to work from home if they are not feeling well or do they have to take a sick day? That she had to have an office reconverted to rest in is a concern to me. Is that office open to everyone at anytime to rest if they are not feeling well or in pain or is it for her own exclusive use? Your Legal department will work to the best of their ability to clear the company of any wrong doing. The employee filed her complaint (I assume) with your local EEOC office. After the investigation ends, the EEOC will rule. If the EEOC finds there was discrimination, they will want to get the employee back to work with most/all you have allowed her to have and do as in the past (along with any loss of income). If you refuse, the EEOC can/will take you to court and represent the employee. If the EEOC rules no finding of discrimination, the employee, using their own dollar, can take you to court. It doesn't help the employee's case when the EEOC has a no findings decision. Don't let this one disabled employee turn you off to all disabled employees. There are a hell of a lot of excellent disabled workers out there raring to prove their worth to employers.
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The Captain
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Post by The Captain on Dec 10, 2012 21:39:05 GMT -5
I will tell you I will think long and hard before hiring another person who belongs to this protected class. this is where you will get bit in the posterior. You shouldn't think long and hard about their "status" - only their qualification, ability and interest in doing said job. If the employer in question hired them despite red flags with background/qualification check - well duh! They were foolish. To extrapolate that onto the rest of said "protected class" is discrimination. Rukh - read my post on the "reasonable accommodations" which were made. After that experience you can say what you want but yea, no more "protected class" who think they're untouchable nightmares. My employer took the high road once and is still paying for it several years later. Never. Again.
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The Captain
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Post by The Captain on Dec 10, 2012 21:48:21 GMT -5
Message deleted by thecaptain.
Sorry = partial duplicative post deleted (stupid keyboard)
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midjd
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Post by midjd on Dec 10, 2012 21:48:33 GMT -5
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midjd
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Post by midjd on Dec 10, 2012 21:57:24 GMT -5
Because people will almost always discriminate against good, disabled candidates for employment/employees if there isn't a law preventing them from doing so?
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Tennesseer
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Post by Tennesseer on Dec 10, 2012 22:01:16 GMT -5
Because people will almost always discriminate against good, disabled candidates for employment/employees if there isn't a law preventing them from doing so?
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The Captain
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Post by The Captain on Dec 10, 2012 22:04:31 GMT -5
Tennesser - here are just some of the accommodations: So does this sound reasonable to you? It sounds to me (based upon what you have described) your company has gone beyond a 'reasonable accommodation' with this employee. The key word is 'reasonable' and what is reasonable to help her succeed in her job. When others have to be hired (benefits?) to pick up the slack for the employee it begins to become unreasonable. If you have any other disabled employees, are they able to work from home too? Heck-are any employees able to work from home if they are not feeling well or do they have to take a sick day? That she had to have an office reconverted to rest in is a concern to me. Is that office open to everyone at anytime to rest if they are not feeling well or in pain or is it for her own exclusive use? If the EEOC rules no finding of discrimination, the employee, using their own dollar, can take you to court. It doesn't help the employee's case when the EEOC has a no findings decision. Don't let this one disabled employee turn you off to all disabled employees. There are a hell of a lot of excellent disabled workers out there raring to prove their worth to employers. Actually since the company has deep resources the ADA lawyer states we in essence have almost "unlimited resources" available to provide assistance in keeping the employee in their job. That (according to the lawyer) includes hiring additional help if needed. The office is for the employee's use only since they are the only one with a key. They apparently are unable to mentally handle sharing the same couch with other people due to childhood trauma (no I'm not making this up). The EEOC ruled in favor of the company when the complaint was filed. When the FMLA work from home request was denied (no one else works from home during business hours) that is when the law suite was filed, otherwise the one day (plus more without notice) of FMLA would have exhausted the 12 week rolling amount allowed under the law. The individual flat out at one point told me they were entitled to full time pay while working part time because they suffered more than the able bodied people in the department. The amount of time I had to spend managing this individual, covering for them on the work that could not be transitioned, and always having a backup plan in place to meet deadlines meant less time I spent with my family. Add to that the extensive documentation constantly required because of the EEOC complaints and pending law suite and you only start to get an idea of the hell the ADA law created for honest employers. Quite frankly, I don't care what color, gender, religion, age, sexual orientation etc you are, I just really care if you can do the job. However after dealing with the bullshit you have to put up with (in an employment at will state) I am not in a hurry to hire more members of any protected class. If you read the study I posted apparently I'm not the only one who has had this experience. Fool me once shame on you, fool me twice...
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Tennesseer
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Post by Tennesseer on Dec 10, 2012 22:06:19 GMT -5
"Actually since the company has deep resources the ADA lawyer states we in essense have almost "unlimited resources" available to provide assistance in keeping the employee in their job. That (according to the lawyer) includes hiring additional help if needed."
Of course he would say that. There is though a limit to unlimited resources.
You state you are employed by a company with 60,000 employees. You should have a pretty decent Legal department.
My guess is your employer/Legal Department will come to a settlement/severence with the employee just to get rid of her. A bit more cash than a nuisance settlement but a settlement none the less.
Has the employee asked for any type of cash settlement/severence?
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The Captain
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Post by The Captain on Dec 10, 2012 22:07:36 GMT -5
Because people will almost always discriminate against good, disabled candidates for employment/employees if there isn't a law preventing them from doing so? Mid - are you serious or is this a joke? The disabled had higher rates of employment before the ADA - the law is doing more harm than good IMHO by creating a protected class.
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Tennesseer
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Post by Tennesseer on Dec 10, 2012 22:12:59 GMT -5
What is the date of this study by Cato. As for the reading references, I see nothing later than 1999.
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The Captain
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Post by The Captain on Dec 10, 2012 22:16:01 GMT -5
"Actually since the company has deep resources the ADA lawyer states we in essense have almost "unlimited resources" available to provide assistance in keeping the employee in their job. That (according to the lawyer) includes hiring additional help if needed." Of course he would say that. There is though a limit to unlimited resources. You state you are employed by a company with 60,000 employees. You should have a pretty decent Legal department. My guess is your employer/Legal Department will come to a settlement/severence with the employee just to get rid of her. A bit more cash than a nuisance settlement but a settlement none the less. Has the employee asked for any type of cash settlement/severence? At least two offers were made and rejected. I don't deny there are real medical issues involved and IMHO this person knows they currently have cadilliac insurance (and retirement benefits) and does not want to loose them. The company pays for LTD so take home would be taxed and would only be 60% of current pay so the individual would have decent (not great) income but not be eligible for medicaid. They are looking for a big bucks settlement which the company is not willing to give since there. has. been. no. discrimination!
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midjd
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Post by midjd on Dec 10, 2012 22:21:52 GMT -5
I didn't see where the study controlled for income or job category. The employment rate went down about 8% - but were the jobs that were retained better ones? Is 50% employment at white-collar jobs better than 60% employment at MW jobs? I don't think the study (or at least this writeup) shows the full picture.
The single proposed solution (a tax credit similar to EITC) hints at their agenda, IMO.
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The Captain
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Post by The Captain on Dec 10, 2012 22:30:19 GMT -5
What is the date of this study by Cato. As for the reading references, I see nothing later than 1999. The Cato study as well as the MIT study were both done a decade after the passage of the ADA around 2000-2001, The MIT study is much more comprehensive and gives good analytics beyond the feel good BS of ADA as to why it has had a negative impact on employability of disabled individuals. I haven't been able to find anything as comprehensive written after these two studies. economics.mit.edu/files/273
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