Kevin Cloves' Legal Blog

Well, it’s happened again. The Bigfoot mystique has been exposed! Oh, this time it involves the cops. Appears that, one Matt Whitton, an officer with Clayton County Police Department who has been on medical leave and one, Rick Dyer, a former Georgia corrections officer announced the find of a frozen Sasquatch found in the North Georgia Mountains. Evidently these two sold the frozen carcass to Steve Kulls and Tom Biscardi, two researchers who are on a quest to prove Bigfoot is in the house. The announcement was made in California just days before the Big Thaw. 

During the defrost, the researchers discovered that a “hair sample was burned and melted into a ball uncharacteristic of hair.” But wait, there’s MORE. The head and feet were found to be made of RUBBER! The horror. Skunked yet again! 

Looks like Officer Whitton will lose his job since his hoax violated the duty of a police officer by “calling into question his credibility.” Ya think? Paperwork was filed to dismiss officer Whitton. 

I’ve never believed in Bigfoot, too many kooks looking for him, evidence shaky at best, witnesses seem to be suspect, etc. The fallout of this particular episode includes the fact that law enforcement was involved. Now, I realize that there are bad apples in every barrel, doctors, lawyers, politicians (oohh there’s a bunch in that barrel!), you get the idea. 

But what about the “researchers” who bought the monkey suit? What saps. How does a Sasquatch stay frozen in summer. Are the North Georgia Mountains that cold? What about a sample test before sale? Or maybe, they paid the errant enforcers such a small price that even the negative publicity was worth the price of poker. Hmmmm. Guess that cop really didn’t want to stay one.

In 2003, the U.S. Equal Employment Opportunity Commission (EEOC) published a report entitled Diversity in Law Firms in which the focus was on individuals with disabilities in the legal profession. Following is a quasi-summary of the contents of the report. 

The report noted “the significant role that the role lawyers play in social, economic, and political life and the influence that minorities and women have been able to attain as their numbers in the legal profession increase.” The report, acknowledges that there is little empirical data upon which to draw regarding lawyers with disabilities and their battles in the workplace, but relies on anecdotal reports that support the notion that lawyers with disabilities, just like non-lawyers with disabilities, suffer same or similar difficulties (barriers to employment) in the workplace. The primary difficulty encountered in the legal profession was found to be access to reasonable accommodation. The legal profession is not unique with regard to reasonable accommodation in the workplace. Accordingly, the government’s report can be applied to other administrative and professional jobs alike. 

A reasonable accommodation is defined by the EEOC to be, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 

Reasonable accommodation can occur in basically three instances: 1) modifications to the job application process; 2) modifications that enable the employee to enjoy equal benefits and privileges; and 3) modifications to the work environment or circumstance or manner in which the position desired is customarily performed. These circumstances are universal to the workplace at large and attorneys face many similar barriers common to other workplace employees. The report states that employers may believe that if an attorney has a disability, either s/he cannot perform the required tasks or it will be too expensive to accommodate the disability. While each disability presents its own set of challenges to the disabled, it should not be necessarily presumed that an employer’s accommodation will naturally be too expensive or create an “undue hardship.”  

The issue of reasonable accommodation starts as early as the application process. For example, an employer cannot generally ask if an applicant needs an accommodation during the interview. However, if the applicant has a disability that is noticeable or if s/he discloses the fact and if the employer reasonably believes that the applicant may need an accommodation, then the employer can ask certain questions. For example, the employer can ask: 1) will you require a reasonable accommodation to perform the job?; and 2) if so, what do you believe you need? An employer cannot exclude an applicant who requires a reasonable accommodation on that ground. 

It could be a prudent business practice to openly discuss all available options with an employee who requires a reasonable accommodation. An employee who needs a reasonable accommodation because of a disability must request one; otherwise the employer is left to guess and is under no obligation to provide one. After the request (oral or in writing), further discussion on alternatives should ensue. The employer must decide if the disability is recognized under the ADA and if an accommodation is necessary. The employer may require the employee to produce evidence of a disability diagnosis. Additionally, the employer may request supporting documentation in the form of medical records or opinions from a health care or vocational rehabilitation professional. 

Common examples of reasonable accommodations can include, but are not limited to the following (from the Report): 

• “making existing workplaces accessible job restructuring
• part-time or modified work schedules
• unpaid leave once an employee has exhausted all employer-provided leave acquiring or modifying equipment
• modifying workplace policies
• providing tests or training materials in an alternative format, such as Braille or large print or on audiotape
• providing qualified readers or sign language interpreters
• permitting telework, even if the employer does not have an established telework program or the employee with a disability has not met all the prerequisites to qualify for an existing telework program
• changing the methods of supervision
• reassignment to a vacant position”

Given the list above, there are certain things that an employer is NOT required to do as a reasonable accommodation. For example, an employer is NOT required to: 1) to remove an “essential function” or job duty from the position held by the employee seeking the accommodation. Some examples the report cites of essential attorney job duties include, “conducting legal research, writing motions and briefs, counseling clients, teaching a law course, drafting regulations and opinion letters, presenting an argument before an appellate court, drafting testimony for a legislative body, and conducting depositions and trials”; 2) Employers are not required to change the employee’s supervisor. However, upon agreement, the employer can do so; 3) the employer is not required to withhold discipline for poor performance or conduct; 4) an employer is not required to provide the attorney with personal use items that are needed outside of the workplace environment like a wheelchair or hearing aids; and 5) employers are not required to lower or eliminate production standards on essential functions or requirements. For example, an employer is not required to reduce the amount of required billable hours. Now, granted, the employer may be required to provide a reasonable accommodation to the attorney for him/her to produce at that level. It should be noted that an employer may need to provide more than one accommodation to an employee. 

The employer is not required to provide a reasonable accommodation if that accommodation works an “undue hardship” on the employer. Undue hardship means “significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.” An undue hardship is figured on several factors, including the following: 1) cost and characteristics of the accommodation; 2) the overall finances of the facility, number of employees and the effect of the expense of the accommodation on the employer; 3) the employer’s operation type (structure and geography); 4) overall financial resources of the company – is the company a part of a larger entity?); and 5) the impact of the accommodation on the operations of the facility. 

The employer must determine whether the requested accommodation will pose an undue hardship. If undue hardship is found, the employer may be able to seek assistance from certain state rehabilitation agencies or disability organizations to help offset the expense or to eliminate the hardship altogether. An employer simply cannot claim an undue hardship because it cannot provide the accommodation for little or no cost. 

An example of an undue hardship placed on an employer would be a situation where an accommodation given to an employee causes other employees to experience workload increases thereby causing missed deadlines and incomplete projects. If an accommodation “adversely affects the ability of other employees to perform their essential functions in a timely manner,” it is likely to create an undue hardship. 

In the private sector, if an attorney believes s/he has been discriminated against, the EEOC complaint process is the same as for any other profession. The attorney must file a complaint with the EEOC. If the complaint cannot be resolved either through negotiations or mediation, the EEOC will investigate the claim for probable cause. If the EEOC finds no discrimination, or for some reason decides not to sue the employer, it may issue a “right to sue” letter thereby allowing the attorney to proceed with court action. The attorney has a specific amount of time to file suit (90 days from the issuance of the letter). 

If the attorney works for a federal agency, the process is a little different. The employee must file a claim with the agency. However, first the employee must contact the EEO counselor at the agency within 45 days of the date of discrimination. The employer can opt to participate in counseling or ADR (Alternative Dispute Resolution) if available to that agency. Counseling must be completed within 30 days and ADR within 90 days. If no resolution is had in either counseling or ADR, the employee can file a complaint with the agency. The agency must investigate the claim unless it is dismissed. If the complaint contains one or more issues that must be appealed to the Merit Systems Protection Board (MSPB), the case then proceeds under the MPSB rules. For all other complaints, the complainant can request a hearing before an EEOC administrative judge (ALJ). Within 180 days, the ALJ will issue a decision, which will be sent to each side. If the agency does not issue a final order within 40 days, the ALJ findings are considered the final action of the agency. There is an appellate process with associated time periods. More information on the process may be found at http://www.eeoc.gov/facts/fs-fed.html.  

The burden of proof in EEOC complaint of failure to provide a reasonable accommodation is relatively simple. The employee “need only show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases. Once the plaintiff has shown that the accommodation s/he needs is ‘reasonable,’ the burden shifts to the defendant/employer to provide case-specific evidence proving that reasonable accommodation would cause an undue hardship in the particular circumstances.” 

As set forth in the Report, the process for requesting a reasonable accommodation and the claims process for EEOC complaints for failure to do so is the same for lawyers as for any other professional in the same or similar job. The Report does, however, bring to light that lawyers, just as other professionals, are subject to the need for a reasonable accommodation and the failure of an employer to offer one. 

In FY (Fiscal Year) 2007, 15,294 individuals filed 16,363 complaints alleging employment discrimination against the federal government. Agencies issued 4,445 decisions on the merits absent a decision by an EEOC Administrative Judge, of which 2,818 or 63.4% of these decisions were timely issued, up .1 % from FY 2006.

The number of employment discrimination complaints filed against the Federal Government declined by 2.2% in FY 2007 from the number filed the previous year and there was a 0.4% decrease in the number of individuals who filed complaints over the same previous FY period.  In FY 2007, 9.3% of the complaints filed were by individuals who had previously filed at least one other complaint during the year, up from 1.1% from FY 2006.

A total of 11,184 investigations were completed government-wide in an average of 176 days in FY 2007. 74.0% of the investigations were completed timely, up from 69.4% in FY 2006.

Our Federal Government has grown since 1998. In FY 2007, the federal government had a Total Work Force of 2,608,172 employees, compared to 2,479,199 in FY 1998 (5% growth). While these stats are dry, it is good to see where some of our tax dollars are going. Right? 

Just today, Naomi C. Earp, Chair of the U.S. Equal Employment Opportunity Commission (EEOC) released the Fiscal Year 2007 (Annual Report on the Federal Work Force for Fiscal Year (FY) 2007). In the report, Ms. Earp reports that Federal complaints as well as processing times have decreased (16,723 in FY 2006 to 16,363in FY 2007– 2.1% decrease and from18,000 in FY 2005 – 9.1%) 

The average investigation time also was reduced from 186 days in FY 2006 to 176 days in FY 2007. Apparently, this is the best investigation time reported in 14 years. The average processing time for closing EEOC federal employee complaints was down to 355 days from 367 days reported in FY 2006. 2.8% of the 7,673 EEOC cases closed on the merits resulted in findings of unlawful discrimination. Settlements occurred in 20.6% of the total complaint closures.

Ms. Earp goes on to state that the federal workforce composition has changed – the numbers of federal employees who are women, Hispanic or Latinos, African Americans, and Asians have slightly increased. But, the number of people with targeted disabilities has declined.  Here are some statistics on the 2,608,172 federal employees that show up in Ms. Earp’s FY 2007 report: Percentage of men                  56.83 down from 58.13 in FY 1998           

Percentage of white men        39.89 down from 42.36 in FY 1998           

Percentage of white women   25.87 down from 26.12 in FY 1998           

Percentage of black men         7.91 down from 8.93 in FY 1998           

Percentage of black women    10.52 up from 10.45 in FY 1998           

Percentage of Asian men        3.39 up from 2.89 in FY 1998           

Percentage of Asian women   2.56 up from 2.06 in FY 1998 

Of interesting note, in FY 2007, agencies timely completed investigations 73.95% of the time, up from 69.4% in FY 2006. Additionally, the amount of monetary awards based upon appellate decisions decreased 8.5% from $11.7 million to $10.7 million. In FY 2003 there was $20.9 million awarded.

For a copy of the full report, including some pretty cool graphs, go to http://www.eeoc.gov/federal/fsp2007/index.html#ID2a

The Guidelines (The Uniform Guidelines on Employee Selection Procedures (43 FR 38290, et seq.)) apply to public and private employers alike and include, licensing and certification boards, apprenticeship committees, labor organizations, contractors or subcontractors, employment agencies, who are covered by one or more of the following provisions of Federal equal employment opportunity law: Executive Order 11246, as amended by Executive Orders 11375 and 12086, Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972; Omnibus Crime Control and Safe Streets Act of 1968, as amended; the Intergovernmental Personnel Act of 1970, as amended; and the State and Local Fiscal Assistance Act of 1972, as amended. The Guidelines offer a question and answer format means of enlightening the employer concerning proper applicant selection processes.

Private employers who have 15 or more employees for 20 or more weeks per calendar year are subject to the Guidelines under Title VII. The federal government is also subject to the guidelines under Title VII. Most employment agencies, apprenticeship committees and labor organization are also subject to the Guidelines.

College placement offices can be subject to the Guidelines depending on what services they offer. If a placement office employs a “selection procedure” for hiring applicants, it is covered under the “user” definition. Placement offices that refer all interested students to employers are not covered, but if the placement office selectively refers student by rejecting some and not others, it is covered under the Guidelines.

The purpose of the Guidelines is achieve a national goal of avoidance of selection practices that lead to discrimination that has an adverse impact on a protected class (members of a race, sex, religion, national origin group or color). The Guidelines set forth a group of uniform principles regarding employee selection principles

The overriding principle of the Guidelines is that a selection process that screens out applicants by having an adverse impact on a protected class of applicant is unlawfully discriminatory unless the selection process has “been validated in accord with the Guidelines, or the user otherwise justifies them in accord with Federal law.” If you are not sure if you are covered under the Guidelines, it would be prudent to consult an attorney.