Favorite Firing: Do Not Terminate a Disabled Employee Without a Reasonable Accommodation Dialogue


EEOC sealBack in May 2016, Lowe’s, the home improvement store giant, agreed to pay $8.6 million to settle a lawsuit brought by the EEOC over Lowe’s firing of many individuals with disabilities when they exceeded the maximum amount of disability leave Lowe’s provided. The problem, as the EEOC saw it, was that Lowe’s failed to engage in reasonable accommodations beyond the standard disability leave policy. See U.S. Equal Employment Opportunity Commission v Lowe’s Companies, Inc., et al., C.D. Ca., Case No. 2:16-CV-03041-AB-FFM.

The Facts: This lawsuit began with three charges of disability discrimination filed by three employees of Lowe’s back in 2007 and 2009. These three plaintiffs alleged that Lowe’s violated the Americans with Disabilities Act (ADA) by terminating their employment when their medical leave of absence exceeded Lowe’s 180-day (later extended to 240-day) maximum leave policy. The plaintiffs claimed that failure to engage in any discussion about further accommodations beyond the maximum leave violated the ADA. They wanted extended leaves of absence as a reasonable accommodation.

The EEOC agreed with the plaintiffs and also claimed that thousands of other Lowe’s employees were in the same situation. The EEOC ultimately filed a lawsuit in the Central District of California, the terminated Lowe’s employees were found to be a suitable class, and the case proceeded as a class action.

It was settled in May 2016, and the Court approved the settlement on May 12, 2016. (A copy of the Consent Decree can be found here.) Lowe’s admitted no wrongdoing, and the Consent Decree is not an admission. However, the company did agree to settle the lawsuit for $8.6 million and also consented to comply with a variety of non-monetary provisions. Lowe’s agreed to contact the terminated employees in the class and pay their damages out of the $8.6 million fund, as calculated by the EEOC, and to donate the remainder (if any) to non-profit organizations benefiting the disabled.

Lowe’s also agreed to amend its policies so that it would “engage in the interactive process with any employee with a disability who requests leave as a reasonable accommodation.” And the company agreed to retain Equal Employment Opportunity consultants approved by the EEOC for four years. These consultants will advise on policies, track all requests for accommodation, and educate managers on their duties under the ADA.

The Moral: There are few bright lines when it comes to working through disability situations. If an employee requests an accommodation, the employer ignores that request at its peril. A firm policy regarding leaves of absence is no longer a firm policy—exceptions must be at least considered if the employee claims to be disabled and to need more time away from work.

When the ADA was first enacted in 1990, I worked with managers to parse through how to simultaneously comply with disability leaves, worker’s compensation laws, absence policies, and the like. The situation grew even more complex with the passage of the Family and Medical Leave Act in 1993. I used to tell managers to stack up all the applicable laws and policies like slices of Swiss cheese. Only if an employee’s situation fit in gaps in every layer could the employee be discharged with minimal risk.

What the Lowe’s case shows is that some of the legal layers have no gaps—all employees requesting a reasonable accommodation should at least be given consideration, and an employer cannot have a blanket rule prohibiting certain accommodations. The EEOC will not accept any mandatory maximum leave policy.

The Lowe’s case is also interesting because of the broad relief granted pursuant to the Consent Decree. The provisions in the Lowe’s decree are the types of relief that the EEOC is likely to seek in every disability case it decides to take to court. Employers should consider whether and when accepting these types of interference in their business are worth disposing of a lawsuit, particularly a large class action case of the type that Lowe’s faced. It doesn’t take a loss in court to cause upheaval in the business; settlement can also be onerous.

It is best, therefore, to avoid as many lawsuits as possible. Therefore, engage in an interactive reasonable accommodation dialogue, document that engagement and all options considered, and be clear on why the employee’s requested accommodation is not reasonable and would constitute an undue hardship on the business.

When have you dealt with a difficult reasonable accommodation case?

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Book Review: The Last Days of Night, by Graham Moore


moore-coverI haven’t posted many book reviews on this blog. Most of the business books I read aren’t that compelling. Most of the fiction I read doesn’t pertain to the themes of this blog. But I recently finished a novel that provides a fascinating look at corporate and legal culture in the 1880s—The Last Days of Night, by Graham Moore.

The protagonist in Moore’s novel is Paul Cravath, a fictionalized version of the attorney who later founded the New York law firm Cravath, Swaine & Moore. Other major characters include Thomas Edison, George Westinghouse, J.P Morgan, and Nikola Tesla. None of these men comes across very positively. In this novel (and the author makes it clear that the book is fiction, though well-researched), Edison obtained his patent on the electric light bulb fraudulently, Westinghouse ordered a fire set in Tesla’s warehouse, J.P. Morgan switched his allegiance from Edison to Westinghouse for financial gain, and Tesla was a complete kook (albeit brilliant).

The book is engaging. There’s enough science in it for science lovers, but it’s easy enough for non-aficionados of science to gloss over it and still enjoy the story. Cravath’s character clearly is representing Westinghouse without really understanding direct current and alternating current, giving readers permission to do the same.

What I enjoyed the most was the look into early corporations—the forerunner of General Electric owned by Thomas Edison, Westinghouse owned by George Westinghouse, and even Morgan’s banking firm—as well as the development of the modern law firm associate structure created by Paul Cravath. There were plenty of corporate and financial shenanigans depicted in the novel, as well as one-up-man-ship between Cravath and his partners. The story could easily have taken place today in the internet world. In fact, many of the chapters open with quotes from Steve Jobs and Bill Gates that are eerily relevant to the electrical industry of more than a century ago.

What I didn’t like was wondering what was true and what wasn’t as I read. Moore confesses in his author’s note,

“This book is a Gordian knot of verifiable truth, educated supposition, dramatic rendering, and total guesswork.”

He offers a chronology of the actual events on his website. However, his changes to the true chronology and the unverifiable actions attributed to the primary characters ultimately caused me to be more skeptical of the book than I wanted to be. Had it been a novel not using real people as primary characters, I could have accepted it much better.

I’ve had some experience at incorporating historical characters into novels (though not in Playing the Game; I’ve written books under another name as well), but I have never depicted true personages as murderers, thieves, frauds, and corporate moles. And when I’ve written historical fiction, I’ve kept my description of events as close to their true chronology as I can.

Still, the author’s note gives me some satisfaction that Moore has accurately described the flavor (if not the chronology) of the invention of the light bulb, the “battle of the currents” between direct current and alternating current, the development of the modern law firm, as well as the implementation of the electric chair for the death penalty. I do recommend the book. But take it with a grain of salt.

What books depicting corporate intrigue have you enjoyed?

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Workplace and Partisan Politics: Why Are the Rockettes Any Different Than Bakers or Pharmacists?


120px-rockettes_2239918515_96df95270e

Photograph by Seth Vidal on Flickr

Through the year-end holidays, one news story dealt with whether the Rockettes would perform at Donald Trump’s inauguration. First let me say that I’m not sure the Rockettes are the group I want to see during a Presidential inauguration, but be that as it may, their performance raises interesting political and workplace issues.

The controversy arose because some of the dancers did not want to perform in celebration of the election of a man they did not—and do not—support. After much discussion between dancers, their union, and the Rockettes’ owners, each dancer will now be able to individually choose whether or not to perform.

The reason some dancers objected to performing is the same reason many individual citizens and groups have objected to Donald Trump’s election—they dislike his opinions or his personality or his tactics. Some Rockettes indicated that President-elect Trump “stands for everything we’re against.”

Each individual citizen should have the right to hold such opinions and to voice those opinions. The question is, how far should each person’s dislike of a candidate, elected official, other public figure, or political position be permitted to take one in the workplace? Who decides whether the performance should ultimately take place—each individual worker or the management of the organization?

In this situation, we have workers—the dancers—who object to their talents being put on display for a cause they disapprove of. Yet, at least initially, their bosses told them the Rockettes had been hired to perform and they should therefore perform. The end result, however, is that individual workers can opt out of performing their job duties.

The same liberals who think this is a victory for the individual Rockettes would nevertheless force pharmacists to fill prescriptions for contraceptives and abortifacients that they think are morally objectionable. What is the difference?

And these same liberals who don’t think the Rockettes should be forced to use their creative talents for President-elect Trump nevertheless think that cake bakers and florists should be forced to put their creative imprimatur on LGBT weddings and other events that they do not approve of. What is the difference?

The difference is solely that these groups approve of the objections to President-elect Trump and they disapprove of businesses and employees who “discriminate” against liberal causes. This is hypocrisy; it is not the First Amendment (which has no sway in relations between a private employer and its workers anyway).

We are all going to have to watch our own hypocrisy in the months and years ahead.

This is not solely a liberal issue. It is also not only a workplace issue.

Conservatives will have to watch their own arrogance, now that they control the White House and both houses of Congress. While Republicans do not have a filibuster-proof majority in the Senate, as the Democrats had from 2008 through 2010, Republicans are still going to have to avoid the arrogance that Democrats displayed during that period.

“I won” is not the end of the debate. We will have a better result if our government works for bipartisan solutions, or at least listens to opposing viewpoints and incorporates some acceptable positions from the minority.

And we must remember, if individual rights are good for people on one side of an issue, they are good for people on the other side. If they are good for some citizens, they are good for all. And if they are good in some workplaces, they are good in all.

Where do you see hypocrisy in government and the workplace?

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A Novel Idea


For all of you who received new tablets, ereaders, or other devices that can handle reading apps, I recommend my novel Playing the Game to you as a true-to-life diversion.

The book revolves around a business in trouble and the people who lead it. The CEO and the Vice-President of HR and a host of other corporate officers—some well-meaning and some not—try to save their toy company from bankruptcy. Along the way, murder and mayhem result, along with a reorganization and a major product launch.

Playing the Game is not only good fun, but useful as a case study for corporate training exercises.  Click here for a list of discussion questions about the book.

Enjoy your holidays. We’ll all be back playing the game soon enough.

PTG Rickover cover

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Performance Management Redux: Flexibility Is Key


performance-reviewI provided a collection of performance management posts at the end of 2014. In the past two years, I’ve written some additional posts about performance management. Here are links to those posts:

Performance Management Isn’t About Deadwood

Performance Reviews: Make Them More Flexible To Make Them More Meaningful

Don’t Give Up on Performance Reviews

I hope these are helpful as you think about the year-end reviews you need to write.

I think we are at a crossroads on performance management in many corporations. Most organizations recognize that annual performance reviews are demotivating. Both managers and employees hate the performance review cycle. But the need remains to document objectives and progress toward objectives.

As I wrote in June, I believe the key is flexibility. And the key to flexibility is frequent review and modification.

Performance management is a dialogue, not a decree. As the organization’s situation changes, so should performance objectives for many (if not most) employees. This takes time, but then, all good communication takes time.

I believe quarterly reviews are a good compromise between rigidity and the time constraints we all face. Coupled with project reviews at major milestones, these should keep employees on track, while permitting the necessary responsiveness in our fast-paced world.

Career development conversations are also important, but that is another post. At year end, coping with the performance management process your organization currently has in place is enough.

Happy Holidays!

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Lessons from My Best Boss


The best manager I ever had passed away recently. I’ve mentioned him a couple of times in earlier posts—he was the man who told me that “time is your friend” (to which I added the codicil, “except when it isn’t”).

Among the other wise things he taught me were:

1. You can never have an hour long conversation with someone in less than an hour.

hourglass-1703330_640That statement of his taught me that you can never rush through listening to someone with a problem or a complaint. People need the time to tell their stories, and no matter how efficient you can be in the rest of what you do, listening takes time.

He had prior experience in Human Resources and a long history as a manager of large groups. He’d spent many hours listening to people’s grievances.

2. The way to solve a problem is to throw good people at it.

My manager did this many times—he took the best people he had in his division and put them on projects or in roles where important changes were needed. The projects where he set up task forces of strong contributors included productivity challenges, quality improvement teams, and staffing and reorganization issues.

In every situation, the good people he assigned found solutions, most of which worked. And even when success wasn’t immediately forthcoming, he—and we—knew we’d given it our best shot.

3. Even if you can do something better or faster than your staff, you need to delegate.

The only way that people grow is by giving them work that enables them to learn. In my prior roles, I had been an individual contributor, even when I had project management responsibility. My manager taught me that in my new position with direct and indirect supervisory authority, I needed to give my staff the opportunity to do things their own way, even if I was faster, even if it took me time to delegate and supervise, even if I could do it better.

Just as he had given me the opportunity to expand my role, and then patiently coached me, I had to do the same for my staff.

Besides, no one can do everything, and we all need to choose priorities. So for the development of my staff, for my own sake, and for the good of the organization, delegation was important.

4. You’re not a risk.

One time this manager told me that when he named me to my new position, he’d been cautioned that he was taking a risk on an unknown quantity. He told me he’d never believed that. “You weren’t a risk,” he said. “You’d done a good job in your prior role, and I had every expectation you’d succeed again.” Perhaps this is a corollary to his advice that the best way to solve a problem is to throw good people at it. He was telling me I was one of the “good people.”

That was the best compliment any manager ever gave me. I have tried to give similar compliments to people who work for me over the years.

And I will carry all these lessons with me for the rest of my life. I am only sorry this manager will no longer be coaching others in this world. He will be missed.

What’s the best lesson you ever learned from one of your managers?

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Bad Networking Advice to Young Women Professionals & Seven Better Ideas


gear-67138_1280A young woman I’ve been mentoring for a few years told me about a women’s professional forum she recently attended. She is not the type who sees gender issues in every office interaction, and, in fact, she didn’t have much interest in attending this women’s forum.

I come from an earlier generation. As a young female attorney thirty years ago, I was glad of opportunities to speak with older women about how they had handled problems in the workplace and in balancing work and home activities. I appreciated the stories they told of how they coped—with clients, with colleagues, with managers.

The working world is a (mostly) easier place for women now than thirty years ago. But I still believe there is a need for senior women to mentor more junior women. We can all benefit from hearing how people like us have survived and thrived in difficult circumstances—and every career has its share of difficult circumstances.

But some of the advice given at women’s forums is appallingly bad. At the conference my young friend attended, there was a session on networking. Many of the young women in attendance expressed their discomfort with the small talk that networking requires and wanted to know what to talk about.

What were they told? Compliment the women on their hair and shoes; talk to men about sports.

Why would senior women perpetuate this stereotyped view of men’s and women’s interests? Why would experienced women professionals tell their younger colleagues to focus on women’s appearance?

It so happens that my friend is a better athlete than most of her male peers. It so happens that if men were given similar advice—talk to men about sports and women about hair and shoes—they would risk charges of sexual harassment.

Why are we still segregating men and women with the advice we give them?

Here are some much better conversation openers:

1. When meeting someone at a conference, ask what they thought of the last speaker. Or if the introduction takes place before the sessions begin, ask what they hope to get out of the conference.

2. Ask if they’ve ever been to this location before—depending on the circumstances, you could ask about the city, the hotel, or the conference center. Then ask follow-up questions about what they like or dislike about the venue.

3. Try to find shared experiences with the person you are trying to speak with. You can use their clothes as a clue—if you are a runner, ask a person in running clothes if they know of a good running route in the area. But I wouldn’t comment on the “cute top” they have on. If you’re not a runner, stay away from the topic. Remember, the point is to find shared experiences.

4. Another technique is to build empathy. If someone drops something, pick it up, and say, “They’ve given us way too much to carry here.” If someone looks like they’ve lost something, ask, “Can I help you find something?” Be friendly and helpful.

5. You can also find ways to let the other person shine—if they made an intelligent comment during a meeting, let them know, and ask another question on that topic.

6. Once the ice is broken, ask where they grew up. Perhaps you’ve been to that city or state and can take the conversation toward sights you’ve seen there. Or comment on what you’d like to see there. Or ask what they liked best about growing up in that location.

7. If nothing else, talk about the weather. It’s safe. Religion and politics are not, unless you’re at a meeting related to those topics.

But avoid conversation about hair and shoes and clothing and any other personal attributes. At least until you know them better.

Remember, if you couldn’t make the comment to someone of the opposite gender, it probably isn’t appropriate for any networking situation.

For a list of questions that might help (though some of these seem outlandish to me for a first meeting), try 48 Questions That’ll Make Awkward Small Talk So Much Easier, by Aja Frost at TheMuse.com. Even if these particular questions don’t work for you, it is a good idea to have some topics prepared in advance when you know you’re going to have to meet new people.

What bad networking advice have you heard over the years?

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