ADA Facts

The Americans with Disabilities Act (ADA) protects people with disabilities in employment, as well as in other situations.  The ADA's main employment provision prohibits covered employers from discriminating against qualified individuals with a disability.  The prohibition applies to all terms, conditions, and privileges of employment.  In addition, the ADA provides employers to make reasonable accommodations for qualified individuals with disabilities.

So who exactly is a regulated employer?  Regulated employers include:

• private employers with 15 or more employees
• employment agencies
• labor organizations
• joint labor/management committees, and
• local governments.

Who is considered a covered worker?  To get the benefits of of the ADA's employment provisions, a person must:

• be a current or prospective employee of a covered employer
• be qualified for the position, and
• have a disability within the meaning of the ADA.

What's prohibited?

• Discrimination:  covered employers may not discriminate when it comes to:
• recruitment
• job application procedures
• hiring
• promotion and training
• time off
• job assignments
• benefits
• wages, and
• layoff and termination.

• Test and Qualification Standards
• Harassment
• Segregation
• Medical Examinations
• Inquiries about Disabilities
• Retaliation

Constructive Discharge

     Constructive discharge occurs when an employee is forced to resign because the employer has made the working conditions unbearable.  What constitutes "unbearable" conduct?  Unbearable conduct includes, but is not limited to, discrimination, harassment, a humiliating demotion, a punitive transfer or hostility towards the employee, or receiving a negative change in pay or work for reasons unrelated to work.

     To prove a claim for constructive discharge, you'll likely have to prove most or all of the factors below:

• Your employer recently changed a working condition that led to your resignation, or constructive discharge,
• The change and your resignation occurred close enough in time to establish a "cause and effect" relationship,
• The change was so unbearable, that it would have caused a reasonable employee to resign,
• Your employer intentionally created or allowed the change, knowing that it would lead to your resignation.

     In order for there to be an actionable claim of constructive discharge, your employer must have recently changed something significant that led to your resignation.  Something that has been bothersome to you for awhile that led to your resignation most likely is not going to constitute constructive discharge since was not intolerable or extraordinary enough for you to resign earlier.

If you are the victim of constructive discharge, please contact Ambuter Law for a free case evaluation.

Hostile Work Environment

     One of the most common thing I hear from potential clients is that they work in a "hostile work environment."  However, in order for there to be a "hostile work environment," the harassment essentially must be "married" to a someone who falls under a protected class, such as ADEA, ADA, or Title VII.

     What rises to the level of creating a hostile work environment?  Petty slights, annoyances, and isolated incidents (unless extreme) do not rise to a level of illegality.  For the conduct to rise to the level of illegality, it must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

     Offensive conduct may include jokes, slurs, epithets or name-calling, physical assaults or threats, intimidating, mockery or ridicule, insults or put-downs, offensive objects or pictures, and interference with work performance.

     However, you must remember, in order for an environment to be considered a "hostile work environment," you, as the abused, must fall under one of the protected classes of people.

If you are the victim of a hostile work environment, please contact Ambuter Law.

FMLA Facts

     Almost on a daily basis, I am confronted by an employee who asks me whether they would qualify for leave under the Family and Medical Leave Act (FMLA).  So what exactly is FMLA?  Here are some easy and quick facts to help you determine whether you qualify for FMLA.

     FMLA requires covered employers to allow eligible employees to take up to 12 weeks of unpaid leave per 12-month period for the arrival of a new child through birth, adoption, or foster care, to care for a family member who is suffering from a serious health condition, or to deal with the employee's own serious health condition.  Employees are entitled to continue their health benefits while on leave.  Once their leave is over, employees are entitled to reinstatement.

So who exactly is a regulated employer?  Regulated employers include:

• private employers with 50 or more employees
• the federal government
• state and local governments, and
• public and private elementary schools and secondary schools.

Who is considered a covered worker?  To be eligible for FMLA, an employee must:

• have worked for a covered employer for at least 12 months (these months do not have to be consecutive.  However, the employer does not have to count time worked prior to a break in service of 7 years or more in most cases.)
• have worked at least 1,250 hours for the employer in the past 12 months immediately preceding the leave, and
• work at a location with 50 or more employees within a 75 mile radius.

What's prohibited?

• Employers may not prevent employees from exercising their FMLA rights, nor may they discriminate or retaliate against employees for exercising their FMLA rights.  Employers cannot fire or otherwise retaliate against employees for taking or requesting FMLA leave.
• Employers also may not interfere with court proceedings or investigations pertaining to the FMLA.

To learn more about FMLA, please visit the Department of Labor's website.

If your rights under Family and Medical Leave Act are being interfered with by your employer, please contact Ambuter Law for your free case evaluation.

Social Media and Workplace Harassment

     With the growing use of technology, harassment isn't just confined to the physical workplace anymore, but rather has expanded to social media as well.  More and more employees are finding themselves the subject of social media harassment.  Gone are the days where harassment took the place of verbal communication between employer/employee and co-workers.  With the use of social media sites, boundaries are becoming blurred, and co-workers' private and professional relationships are intersecting with those of other co-workers.

     What exactly is social media harassment?  Social media harassment takes the form of harassment through emails, text messages, blogs, and other social media networking/communication sites.  The harassment doesn't just occur during the work day at the workplace, but rather overlaps into the personal lives of co-workers and occurs, many times, after work hours.

     So what are employers doing about this growing problem?  Many employers are starting to implement social media harassment in their policy handbooks, as well as offer workplace training on the subject.  However, employers still have to be careful not to overstep their boundaries by infringing on a worker's rights to use social media sites.  Employers also have to worry about being overly broad when implementing social media harassment policies as well.  Instead, employers need to find a balance to protect employees while not infringing on their rights.

If you are the subject of harassment or discrimination in the workplace, contact Ambuter Law for a free case evaluation.

Workplace Bullying

     Workplace bullying is on the rise.  It isn't something new; it's just becoming more prevalent.  According to a CareerBuilder study, 35 percent of workers said they felt bullied from work.  Last year, only 27 percent had felt this way.

     So who is doing the bullying?  According to the study, most who felt bullied pointed to incidents with their bosses (48 percent) or co-workers (45 percent).  Thirty-one percent felt bullied by customers, and 26 percent by someone higher up in the company other than their boss.  Also, fifty-four percent of those bullied said the bully was someone older than them, while twenty-nine percent said the person was younger.

     So what type of bullying are we seeing?  We're seeing employees falsely accused of mistakes, being ignored, having different standards or policies used towards them than other workers, being constantly criticized, being yelled at by their boss in front of co-workers, having belittling comments made about them about their work at meetings, being gossiped about, having their bosses assign their tasks to other workers, being excluded from projects or meetings, and being picked on for personal attributes.

     According to the study, many of those bullied confronted their bully or spoke with human resources about the incidents.  Unfortunately, for some of those bullied, the situation got worse or human resources did nothing.  But remember, unless you report the incident, there may be no chance that the bullying will ever stop, so reporting the incidents and bully is the best solution.

To view this full article, click here.

If you are the subject of discrimination or harassment in the workplace, contact Ambuter Law for a free confidential consultation.

Discrimination Against Mothers in the Workplace

     Increasingly, mothers in the workplace are becoming the subject of discrimination.  This type of discrimination is called maternal wall bias.  What exactly is maternal wall bias?  Maternal wall bias can take many different forms.

• Prescriptive bias involves "should" statements, such as "now that you're a mother, you should be working part-time and taking care of your children, instead of working here full-time."
• Benevolent prescriptive bias is less obvious.  For example, if a husband and wife are working for the same company and the employer sends the wife home early to take of the children, yet makes the husband work long hours because he has a family to take care of, then this would be considered benevolent prescriptive bias.
• Descriptive bias is the most subtle of the three.  Descriptive bias stems not from the assumption about how people should act, but rather from assumptions about they will act.  An example would be if a mother went part-time, yet every time she was away from her desk her co-workers would assume she was at home with her children, rather than in a meeting. 

     One quirk about this type of discrimination: maternal wall bias cases often involve discrimination by women against women.  Researchers have discovered that female supervisors, who are mothers, expect their female employees, who are mothers, to "suck it up," often because female supervisors had to in their own personal work situations.

     Furthermore, if a woman has a child, her chances of being hired fall by 79%, she is 50% as likely to be promoted as a childless woman, and her salary offer, on average, will be reduced by $11,000.00.

     So what can be done to prevent maternal wall bias?  For one, create awareness of the problem by creating and implementing training programs to prevent maternal wall bias in the workplace.  Managers and co-workers also need to leave their personal opinions at home.  Also employers should ask mothers what they want, rather than withhold opportunities until it's "a good time."


If you are facing this type of discrimination in the workplace, please contact Ambuter Law.