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Managing a complaint. All criteria attached and color coded. Please be on time.
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Managing a Compliant and Diverse Workplace
Recall from the Management Team Briefing on Employment Laws Assignment that the company in the assignment was the defendant in some HR-related lawsuits; claims of harassment, failure to reasonably accommodate disabilities, and work-life balance issues were made by employees, forcing the company to answer to the claims in its own defense. As the new CHRO, you want to enact stronger policies and guidelines to avoid such situations in the future.
Write a 6–7 page paper in which you:
Briefly note how workplace harassment affects equal employment opportunity and describe at least four elements a plaintiff must show to pursue a harassment claim. How might an organization prevent the risk of being the subject of such claims? Hint: Refer to 6 Tips to Avoid Harassment and Discrimination Claims. (Included)
Explain your overall understanding of reasonable accommodation of disability (make certain to review ADA rules). Then, discuss a minimum of four things a plaintiff filing a failure to accommodate claim must show to prove they are qualified for the job in question.
Make a connection between religious advocacy or harassment and bona fide occupational qualification. Discuss whether churches promoting a certain religion can refuse to hire people of other faiths? Why or why not?
Discuss your overall understanding of FMLA and the Pregnancy Discrimination Act as they relate to organizations granting leave for each. Then, identify three or four common FMLA mistakes managers make and what you would do to avoid the mistakes. Refer toThe Top Five FMLA Compliance Mistakes That Could Land You in Court. (Included)
Use at least four American quality academic resources in this assignment. Note: Wikipedia and other Websites do not qualify as academic resources.
The specific course learning outcome associated with this assignment is:
Analyze common HR legal issues, including workplace harassment, failure to accommodate disabilities, religious issues, and FMLA.
Make a heading for each concept and question
Number all pages
Rubric
Briefly note how workplace harassment affects equal employment opportunity and describe at least four elements a plaintiff must show to pursue a harassment claim. How might an organization prevent the risk of being the subject of such claims?–
Levels of Achievement:
Unacceptable0(0.00%)points
Needs Improvement18(11.25%)points
Competent20.4(12.75%)points
Exemplary24(15.00%)points
Explain your overall understanding on reasonable accommodation of disability (consider reviewing ADA rules). Then, discuss a minimum of three things a plaintiff filing a failure to accommodate claim must show that helps to prove they are qualified for the job in question.–
Levels of Achievement:
Unacceptable0(0.00%)points
Needs Improvement24(15.00%)points
Competent27.2(17.00%)points
Exemplary32(20.00%)points
Make a connection between religious advocacy or harassment and bona fide occupational qualification. Can churches promoting a certain religion refuse to hire people of other faiths? Why or why not?–
Levels of Achievement:
Unacceptable0(0.00%)points
Needs Improvement24(15.00%)points
Competent27.2(17.00%)points
Exemplary32(20.00%)points
Discuss your overall understanding of FMLA and the Pregnancy Discrimination Act as they relate to organizations granting leave for each. Then, identify two or three common FMLA mistakes managers make and what you would do to avoid the mistakes.–
Levels of Achievement:
Unacceptable0(0.00%)points
Needs Improvement24(15.00%)points
Competent27.2(17.00%)points
Exemplary32(20.00%)points
Use at least three quality academic references.–
Levels of Achievement:
Unacceptable0(0.00%)points
Needs Improvement6(3.75%)points
Competent6.8(4.25%)points
Exemplary8(5.00%)points
Writing mechanics, grammar, and formatting.–
Levels of Achievement:
Unacceptable0(0.00%)points
Needs Improvement6(3.75%)points
Competent6.8(4.25%)points
Exemplary8(5.00%)points
Appropriate use of SWS in-text citations and a reference section.–
Levels of Achievement:
Unacceptable0(0.00%)points
Needs Improvement6(3.75%)points
Competent6.8(4.25%)points
Exemplary8(5.00%)points
Information literacy and integration of sources.–
Levels of Achievement:
Unacceptable0(0.00%)points
Needs Improvement6(3.75%)points
Competent6.8(4.25%)points
Exemplary8(5.00%)points
Clarity and coherence of writing.–
Levels of Achievement:
Unacceptable0(0.00%)points
Needs Improvement6(3.75%)points
Competent6.8(4.25%)points
Exemplary8(5.00%)points
6 Tips to Avoid Harassment and Discrimination Claims
A zero-tolerance environment should be backed by effective policies, practices, tools and training.
Posted by Angela Reddock-Wright on May 8th, 2012
The economic decline of the last few years has led to an increase in claims ofdiscrimination and harassment in the workplace. Such claims have arisen as a result of employers having to make difficult decisions about layoffs and restructuring their businesses and organizations to streamline them and to make them more efficient.
The EEOC shows nearly 100,000 claims of discrimination and harassment filed, with a notable increase in claims related to age, religion, disability and national origin, as opposed to traditional claims of race andsex discrimination.
Although a tough climate in which to do business, employers can take steps to minimize their risks in the areas of discrimination and harassment, while also growing and creating thriving, progressive work environments.
Harassment investigations can be tricky. You’ll find tips for preventing and investigating workplace harassment in this freecheat sheet on Workplace Harassment.
The following guidelines can help to prevent harassment and discrimination claims and reduce risk:
1. Leadership Commitment
First and foremost, the leaders of a company or organization, including the owners, executives and senior managers, must personally commit to promoting and creating an environment and culture which does not tolerate discrimination and harassment in the workplace. When employees see that the leaders of a company or organization are committed to such principles, they are less likely to engage in such conduct and if they do, they know they may face potentially severe consequences.
2. Strong Policies and Procedures
Employers must establish a strong policy against harassment and discrimination which defines and provides examples of what constitutes such conduct. If the employer’s business is part of a unique industry such as the restaurant, retail or manufacturing business, the policy should include examples which are applicable to that workplace or industry. This will ensure the policy has meaning beyond words.
3. A Clear Reporting Process
The policy also should include a clear process for employees to report claims of discrimination and harassment. For example, the policy might state something to the following effect: “Should an employee feel that he or she has been the victim of discrimination or harassment, the employee should immediately report the claim to his or her supervisor or to X person in the Human Resources Department”.
Employers might also consider implementing a third-party compliance hotline where employees can make reports of discrimination and harassment, as well as other claims and issues, particularly if the employee does not feel comfortable making the report to any manager or supervisor internally.
Read about i-Sight’s secure anonymousethics hotline.
4. A Clear Investigation Process
The policy also should include a clear overview of the employer’s investigation process. The policy should express the employer’s commitment to conducting an immediate and thorough investigation and to taking any remedial action, where necessary.
5. No Retaliation
The policy also should ensure employees that they will not be retaliated against for making claims of discrimination or harassment and that the employer will take all steps to protect the employee and their confidentiality.
6. Training
Perhaps the most important element of a strong prevention program is regular training both for managers and employees. The training can be conducted by lawyers or trained human resources professionals or through a recognized online training source. Employers should examine their organizational culture and environment to determine what is the best training option for their employees. Whatever decision the employer makes, it should ensure the training is conducted on a regular basis – at least annually as a best practice.
Although claims of discrimination and harassment are on the rise, they can be limited and their impact can be minimized where employers commit to having a ZERO tolerance environment for discrimination and harassment, along with implementing the necessary policies, practices, tools and training to support that commitment.
The Top Five
FMLA
Compliance
Mistakes
That Could Land You in Court
The Top Five FMLA Compliance Mistakes That Could Land You in Court
A slip of the tongue, a misplaced remark, the
wrong job assignment: managers make mistakes
every day. When the mistake involves FMLA, it can
cost your company big time in legal fees and land
you in court.
This report gives examples of common mistakes
your managers can make with FMLA decisions and
shows how to avoid them. Each section provides
examples of the problems your managers face with
FMLA regulations. Also included are lessons learned
that your managers can use to stop FMLA problems
before they start.
The Five FMLA Compliance Mistakes Line
Managers Make covers these common slip ups:
1) Taking “adverse action” against employees
returning from FMLA leave
2) Saying the wrong things when employees
request FMLA leave
3) Assuming that minor ailments don’t quality
for FMLA leave
4) Disclosing a worker’s private medical
information
5) Penalizing employees for unforeseeable
FMLA leave
Mistake # 1 – Taking ‘adverse
action’ against employees who
have taken FMLA leave
When an employee returns from FMLA leave,
FMLA regulations state that the returning employee
has to go back to the same job or one of equal pay,
responsibility, and benefits.Here are two scenarios
that show the potential pitfalls with returning
employees and “adverse action”.
Sometimes it’s easy to reintegrate an employee
after a three- or six-month FMLA leave. The person
was a top performer and you were really suffering
while she was gone. You’re delighted to have her
back.
But that’s not always the case, is it? Sometimes
when workers return from extended leave, it’s hard to
work them back in. Sometimes you’d just as soon the
person never came back at all. It’s circumstances
such as these that lead to retaliation lawsuits. Let’s
look at a couple scenarios:
Scenario 1
Mary, the company’s accounts payables manager,
takes three months pregnancy leave. Jane, who
replaced Mary, ends up doing the job better. Dave,
her supervisor, is thinking, “Why did I put up with
Mary for so long? She was incompetent and I didn’t
even realize it. When Jane took over for her while
Mary was on leave, Jane completely reorganized the
department and it now runs like a clock. So what am
I supposed to do? Put Mary back in charge? That’s
not in the best interests of the company. I think I’ll
just put Mary in another role and hope she’s happy.”
That could be wishful thinking. In this case it
invited a retaliation lawsuit against the company.
Mary said: “When I left I had a position of authority
and responsibility; now they’ve put me out to pasture
in a low-level role. Sure, my pay is the same, but it’s
not a ‘similar or equivalent’ position. This is
retaliation and I’m going to sue.”
Could Mary win? Yes, in fact she did, because the
company had no evidence of poor performance prior
to her taking leave.
How the supervisor slipped up: Dave didn’t have a
clear standard of excellence for Mary before she took
leave. She was doing a mediocre job and he didn’t
even know it. Mary had performance reviews stating
that she was meeting expectations all along; there
was no specific criticism of her work. Bottom line:
From the court’s perspective it appeared that at this
company the cost of having a baby is a demotion.
Remember, in court, companies almost always lose
“he said/she said” arguments. Employees get the
benefit of the doubt. No matter how sincere, or right,
Dave may have been, the lack of documentation left
the courts with no choice but to rule in Mary’s favor.
Copyright 2010 Rapid Learning Institute Page 1
The Top Five FMLA Compliance Mistakes That Could Land You in Court
Lesson learned for Managers
When a person takes FMLA leave, you’re
extremely vulnerable to a retaliation lawsuit if you
don’t return an employee to the same position she had
before. Or at least an equivalent one. Effectively
demoting Mary was dangerous and this company paid
the price.
How careful do you have to be with someone
returning from FMLA leave? Very. But the courts do
not want to dictate how you run your business. You
can fire or demote a person if you can prove that you
would have taken the same action regardless of
whether or not she took leave.
If Dave had documented Mary’s poor performance
in the months prior to her taking leave, he could very
likely have demoted her when she returned from
leave. Here’s an example where the company played
its cards right:
Scenario 2
Bill was out on leave for six months for a major
health crisis. When he returned to work he was still
not 100%. He couldn’t lift things as well as before.
He wasn’t as focused, and he tired easily. Fact is, he
couldn’t perform his old job at the level he used to,
and others in the department wouldn’t tolerate sub-par
performance.
Bill’s boss, Jackie, carefully documented Bill’s
inability to handle the basic tasks of the job. She
talked many times with Bill about his deficiencies
and finally offered to transfer him to another position
that was much less demanding. He refused to take it.
So Jackie fired him. Bill then sued for violation of his
FMLA rights.
Bill’s argument to the judge was that, “They got
angry because I took leave and now they’re punishing
me.” In many cases, that argument wins a lot of
sympathy in court. After all, the person may have
been on leave due to a life-threatening illnesses or the
loss of a loved one; then they come back to work and
get fired.
The company appears cold, heartless and
opportunistic.
But that doesn’t mean you can’t fire people after
they take leave. We’ve seen many cases where
companies got away with it, but only when they
proved that the person would have been fired even if
he hadn’t taken FMLA leave.
In the case described above, the company won.
Why? Because the courts will not force a company to
employ a person who can’t physically perform a job.
And Jackie very carefully documented that Bill
wasn’t up to snuff. In the end, the courts believed that
the company would have transferred Bill whether or
not he took leave.
That’s the standard you need to meet. Would you
have taken the “adverse action” anyway? If so,
you’ve got a strong case in court.
As a measure of good faith, it didn’t hurt that
Jackie offered Bill another position.
Mistake #2 – Saying the wrong
things when employees
request FMLA leave
Saying the wrong thing to an employee regarding
FMLA can be one of the quickest ways to a lawsuit.
Below are the two responses you shouldn’t use and
the correct response.
An employee comes to you and says she needs to
take FMLA leave because she has a back condition.
What should you say?
Correct: I’m sorry to hear you’re not feeling well. I
suggest you go to the doctor and get yourself treated.
And get me a note from your doctor, including a
diagnosis. I’ll pass that on to the HR department.
Not correct: You know, your timing couldn’t be
worse. Your colleagues are really counting on you
right now.Are you sure you can’t stay on a few more
days?
Copyright 2010 Rapid Learning Institute Page 2
The Top Five FMLA Compliance Mistakes That Could Land You in Court
Not correct: I saw you lifting boxes just yesterday.
You didn’t seem to be having any problems. Are you
sure you’re really ailing?
The last two responses set you up for a retaliation
lawsuit. The FMLA gives employees the right to
make their own health and well-being a higher
priority than the productivity goals of their company.
Sure, it’s very hard when an employee takes time off
during a crunch. It’s also true that you’ll occasionally
have a malingerer who will exaggerate a minor injury
and let you down.
But you’re in no position to decide whether an
illness is real or not. Only a doctor can do that. The
minute you, as a manager or supervisor, make
judgments about whether a person’s ailments are real
or not, you’ve given the employee ammunition in a
retaliation lawsuit should you ever take an adverse
action against the person.
The “correct” response is dispassionate,
compassionate and non-judgmental. It treats the
employee with dignity and respect. And it will never
come back to haunt you.
Mistake #3 – Assuming that
‘minor ailments’ don’t qualify
for FMLA leave
Don’t make your own call about what constitutes
an illness? FMLA regulations have done that for you.
Surely a case of the flu wouldn’t qualify a worker
for FMLA leave, would it?
It could. The law says that a “serious health
condition” is one that requires three consecutive days,
72 hours or more, of leave, and at least two in-person
treatments by a health care professional. A number of
courts have ruled that an ailment like the flu can be
considered severe.
Scenario
Dave has the flu and stays out two days, then
returns to work on the third day. Two days later he
calls in sick again for another day. During the two
weeks that follow he comes in late and leaves work
early several times without providing notice. When
questioned, Dave says he was attending doctor’s
appointments to treat his condition. Dave’s boss,
Rick, thinks Dave is malingering and fires him for
violating the company’s strict attendance policy. Dave
sues, claiming that because he was out for three days,
he qualifies for FMLA leave and the company can’t
fire him.
Dave lost this case because his absences weren’t
consecutive, which means his illness didn’t qualify as
a “serious health condition.”
Lesson learned for Supervisors and
Managers
Don’t let employees try and tell you that they
qualify for FMLA leave because their ailment
required three days of leave that weren’t consecutive.
Mistake #4 – Disclosing private
medical information about an
employee
Never disclose confidential medical information to
anyone but the HR department or your direct report in
the chain of command
Supervisors who handle FMLA leave requests learn
about employees’ medical problems. This information
is private and you’re expected to keep it that way.
Scenario
Ed had been Bruce’s manager for several years,
and it pained him to learn that Bruce was HIV-
positive. While Bruce was out on leave, Ed
mentioned Bruce’s condition to another senior
colleague, whom he expected to be discreet about it.
But the day Bruce returned to work he stormed into
Ed’s office and complained that “everyone in the
Copyright 2010 Rapid Learning Institute Page 3
The Top Five FMLA Compliance Mistakes That Could Land You in Court
company knows I’ve got AIDS.” Bruce ended up
suing the company for violating his privacy. He won.
How the supervisor slipped up
Pure and simple, Ed blabbed. The company tried to
argue that as a result of the news becoming public,
people rallied around Bruce and there wasn’t a single
incident of bias or negativity. The courts weren’t
impressed. The company also argued that Bruce
disclosed the information “voluntarily” on his request
for FMLA leave. But, it turned out, Ed had told him if
he didn’t put the reason for the leave on the request,
he’d be subject to discipline.
Lesson learned for Managers
Mum’s the word when it comes to any information
you may have about an employee’s medical or
psychological condition.
Mistake #5 – Not recognizing
the nature of ‘unforeseeable
leave’
Events happen in our lives that we can’t control.
But knowing the dividing line what is or isn’t
foreseeable with FMLA issues can help your
company avoid problems and lawsuits.
Most companies have policies that require
employees to give reasonable notice when they intend
to take family or medical leave. The FMLA
recognizes that this is only fair to employers, who
need to make adjustments when employees are absent.
Scenario 1 – foreseeable leave
Diane walks into your office and tells you she
intends to have elective surgery the next day, and that
she’ll be out of work for a week recovering. You
recognize that this is a violation of your company
policy, which requires two weeks’ advance notice for
foreseeable leave. Diane’s absence will throw your
entire department into chaos because you have no one
to replace her, and you’re angry. So you tell Diane
that if she takes the leave on such short notice, you’ll
have to fire her.
Can she sue you for FMLA retaliation? Sure, but
she probably won’t win. The courts will likely rule
that her leave was foreseeable and she violated your
policy. Barring other circumstances, she has no case.
Scenario 2 – unforeseeable leave
John gets in a car accident and suffers a head
injury. His wife calls you the same day to report
John’s condition and tells you he’ll likely be out at
least two weeks. She calls you continually during the
following days to report on John’s progress. In a case
like this John is fully protected by the FMLA.
Scenario 3 – ‘gray area’
Steve’s wife is a few days past her due date to
deliver her first child. So Steve calls Will, his
supervisor, to request FMLA leave to care for his
pregnant wife. Will says no. Steve misses nine
consecutive shifts and Will fires him. Steve sues the
company for denying his legitimate FMLA leave,
claiming that his leave was “unforeseeable” because
his wife was unexpectedly overdue and he couldn’t
predict when she was going to deliver. How do you
think the court ruled?
The court found that Steve violated the company’s
attendance policy and deserved to be fired. His wife,
though she was a couple weeks late delivering, had a
normal pregnancy with no complications. There was
no unforeseeable medical emergency. Steve was
trying to bend the rules.
Lesson learned for Managers
Knowing the dividing line is between “foreseeable”
and “unforeseeable” FMLA leave means the
difference between winning and losing in court.
Copyright 2010 Rapid Learning Institute Page 4

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