Tag Archives: discrimination

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


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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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Favorite Firing: When a Supervisor’s Actions Make a Termination Difficult to Defend


4th cirI am typically suspicious of lawsuits in which a plaintiff employee alleges every possible form of discrimination against his or her employer. It seems unlikely that an employer is motivated by many different forms of bias when deciding on a disciplinary action or termination—race and gender and age and pregnancy can’t all be the basis for the decision, can they?

And yet, when an employer and its supervisors screws up a case so badly with multiple derogatory statements over a lengthy period of time, and when they then fire the employee shortly after she complains about the harassing conduct, the case is likely to get heard on the merits and will cost the company a lot of money to defend.

Such a case, Guessous v. Fairview Property Investments, LLC, No. 15-1055 (4th Cir. July 6, 2016), recently came before the Fourth Circuit Court of Appeals. The Fourth Circuit reversed the lower court’s grant of summary judgment to the defendant, and now the employer must gear up for a trial.

The Facts: In Guessous v. Fairview Property Investments, LLC, Monica Guessous, a female Muslim-American bookkeeping assistant of Moroccan descent, sued her employer, a property management firm, after she was discharged. Her complaint contained multiple claims, including discrimination based on religion, national origin, and pregnancy, hostile work environment, and retaliation.

Shortly after she was hired by Fairview, Ms. Guessous began reporting to a new supervisor, Greg Washenko. She alleged that Mr. Washenko began making offensive remarks when they were first introduced, when he said he had previously worked with a “bunch of Middle Easterners and they are a bunch of crooks who will stop at nothing to screw you.”

As their work relationship continued, Mr. Washenko allegedly discussed Moroccans, Muslims, and Middle Easterners repeatedly in disparaging and offensive ways, and asked Ms. Guessous questions about Middle Easterners, about suicide bombers and other terrorist acts, and about Islam. When Ms. Guessous told Mr. Washenko that Muslims were not terrorists, Mr. Washenko responded, “Yeah, sure. Like my buddy says . . . not all Muslims are terrorists, but most are.”

The Fourth Circuit opinion goes on for pages about Mr. Washenko’s comments. According to the Fourth Circuit, Washenko consistently conflated Ms. Guessous’s identity as a Moroccan Muslim with other Middle Eastern identities, so that the court had difficulty determining whether his remarks related to race, ethnicity, national origin, or religion.

When Ms. Guessous became pregnant, Mr. Washenko didn’t want to grant her a three-month maternity leave, and she had to tell him she was legally entitled to a 12-week leave. When she returned from maternity leave, her work duties had been assigned to other staff. Two months later, she asked Mr. Washenko for her old duties back and complained about his past behavior. Just 75 minutes after this meeting, the company president asked Fairview affiliates if they had openings for Ms. Guessous, because Fairview did not have enough work for her.

Then Ms. Guessous was terminated in March 2013. She was told the company did not have work for her. Her responsibilities were transferred to an outside accountant and to Mr. Washenko.

The Moral: This case demonstrates several problems for employers.

First, of course, is the alleged behavior by Mr. Washenko. In summary judgment rulings, the facts must be considered in the light most favorable to the plaintiff—in this case, Ms. Guessous. It is possible that a judge or jury after a trial will find that Fairview did not discriminate against Ms. Guessous. But with the allegations described in the Fourth Circuit opinion, Fairview is facing an uphill battle on liability.

Second, the Fourth Circuit indicated that the fact that Fairview didn’t have work for Ms. Guessous was not sufficient rationale to defeat her claims of discrimination. The Fourth Circuit said that the lower court had granted summary judgment for Fairview solely because the company did not replace her after she was fired.

“The court offered no elaboration in its opinion, but its logic appears to have been that, because the work was absorbed by Fairview’s other employees, Guessous cannot show that there was enough work to justify keeping her on staff and she therefore cannot prevail. If that is, indeed, the court’s reasoning it is a fallacy: because Fairview has shown it could operate without Guessous does not mean that it would have done so absent the protected activity.”

Thus, once an employer or its supervisors have engaged in discriminatory or harassing behavior, a restructuring of duties to get rid of an employee is also discriminatory. It seems unlikely that an employer can show any evidence to defend itself in such a situation.

In this case, the facts were particularly egregious. As the Fourth Circuit said,

“A reasonable jury could easily conclude, however, that the termination decision was made only seventy-five minutes after Guessous’ complained to Washenko about past comments and treatment, and that it was therefore motivated by the complaint itself.”

Thus, the Fourth Circuit said that a reasonable jury could find that Fairview’s argument that it lacked work for Ms. Guessous was a pretext for discrimination.

The morals to this case, then, are that (1) employers, including all supervisors, should refrain from disparaging comments about employees’ national origin, religion, and other protected categories; (2) employers should provide employees with all mandated leaves and other benefits without question; and (3) employers should not respond to employee complaints by immediately doing away with the employee’s job.

More broadly, the moral of this case is that employers need to be sure that discussions in the workplace about political and newsworthy events remain civil and that no racial, ethnic, or other protected group is mentioned in disparaging ways. A good moral for us all to take to heart in the middle of this political season.

When have you encountered managers who behaved inappropriately?

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Favorite Firing: Terminated for Lying About Leave


police-officer-clipart-black-and-white-nTXoX7MTBYears ago, I used to discuss employment cases I worked on with my kids at the dinner table. I didn’t use names, but I did describe the circumstances. “Don’t ever lie to your employer. You can get fired for lying,” I told them.

A recent court case from Ohio proves I’m still right. In Mattessich v. Weatherfield Township (Ohio Ct. App. Feb. 8, 2016), a police officer who had taken leave for depression was later terminated for lying about his medical leave. This is yet another “favorite firing” case involving law enforcement personnel.

The Facts: After Richard Mattessich, a police officer with the Weathersfield Township Police Department in Ohio, applied for a promotion to sergeant, he alleged that another applicant had been late to work. A video proved that Officer Mattessich’s allegations were false. The Chief of Police considered terminating Officer Mattessich at that time, but gave him a second chance. The Chief did require Officer Mattessich to undergo a psychiatric evaluation. A health care provider concluded that Mattessich needed sick leave, and he was off work for nine months.

Officer Mattessich passed a fitness-for-duty exam and returned to work. Nevertheless, others on the police force thought he lacked confidence and even seemed “dazed” and “out of it.” Officer Mattessich said he was fine and denied having any mental health counseling while on leave.

A few weeks later, his superiors learned that Officer Mattessich had in fact been treated for depression with counseling and medication. He admitted he had lied earlier about not receiving any treatment. Shortly thereafter, his employment was terminated for lying. The Chief of Police indicated that he could not trust a dishonest employee, because honesty and integrity were essential parts of the job for police officers.

Mattessich filed a disability discrimination lawsuit alleging that he had been discharged because of his mental health condition. The trial court granted summary judgment to the employer and dismissed the case, ruling that dishonesty—not disability—was the motivation behind the termination.

On February 8, 2016, the Ohio Court of Appeals upheld the termination. Although Mattessich’s “depression” was mentioned during the termination discussions, it was only mentioned because it was related to the plaintiff’s deception. There was no evidence that his mental health status was the cause of his terminaiton. Just because the employer knew about some mental health condition did not mean that any subsequent adverse decision was the result of discrimination.

The Court of Appeals found that the police department had provided a legitimate, nondiscriminatory reason for Officer Mattessich’s termination. It therefore became the plaintiff’s responsibility to prove that the reason was pretextual. The Court stated:

To establish pretext for a claim under the Civil Rights Act, “a plaintiff must demonstrate that the proffered reason (1) has no basis in fact, (2) did not actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”

Officer Mattessich failed to provide evidence to support pretext under any of these three categories.

One of the three judges on the Court of Appeals did dissent. She argued that the employer regarded Officer Mattessich as disabled and that there were questions of fact about the officer’s dishonesty that should have survived summary judgment.

The Moral: What I told my children is still good practice at work—do not lie to your employer.

This case involved law enforcement, where honesty is critical for the success of the police department’s work with the public and in courts. But honesty is critical in every employment relationship. Every employee owes his or her employer a duty of loyalty, which encompasses veracity. Every employer should have a policy prohibiting employees from lying to their supervisors.

And every employer should investigate allegations that an employee has lied—not only when the lies involve things as critical to the employment relationship as fitness for duty and leaves of absence.

Of course, communicating employment policies and consistency in applying those policies are critical. In this case, the Court of Appeals found that the Weathersfield Township Police Department had disciplined other officers caught committing acts of deception. So consistent application of the policy was important.

As noted above, there was a dissent in this case. These situations can go either way for the employer. The more the employer can distance the termination from the finding that the employee is disabled, and the more similar situations involving employees not in the same protected class as the discharged employee, the better the case is likely to go for the employer.

Involving Human Resources professionals and employment attorneys in these situations prior to discharging the employee is always a best practice.

But in this case, the biggest issue is that it took five years to get an appellate ruling that the employee could legitimately be discharged for dishonesty.

When have you had to deal with dishonesty in the workplace?

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Favorite Firing: Too Soon and Too Late—Two Examples of Potential Retaliation


MP900302921Retaliation charges now make up the most common type of discrimination charges filed with the Equal Employment Opportunity Commission, and the number of retaliation charges grew at 5% in fiscal year 2015. The situation is no better with complaints filed with civil rights agencies at the state and local levels.

Two recent cases illustrate the problems employers face managing employees who might file a retaliation claim. Adverse actions against an employee at any time after the charge is filed—whether too soon or too late—can both land an employer in hot water.

Baker v. KCI Technologies, Inc., (S.D. Ind., January 27, 2016):

The Facts: In the first case I’m profiling, a female employee, Alaina Baker, worked as an Environmental Scientist for KCI Technologies. After she complained internally about compensation, recognition, and promotional issues, Ms. Baker filed a charge of sex discrimination with the Indiana Civil Rights Commission. The company then investigated whether her concerns could be resolved to enable her to work as an effective manager. During the investigation, Ms. Baker told the Vice-President of Human Resources that she was not comfortable in her current situation and did not want to remain with KCI Technologies if nothing was going to change.

The company offered Ms. Baker the choice of a mentor or a severance package. Ms. Baker indicated that she didn’t think a mentor would help. Her employer then offered her another severance package, but she rejected that offer as well. KCI Technologies fired Ms. Baker, even though she had no record of job performance or disciplinary issues, because the company decided her antagonistic relationship with her supervisor would probably harm the business’s relationships with its customers. Ms. Baker then filed a claim for retaliatory discharge.

The employer filed a motion for summary judgment, which the District Court denied. The Court found that “a causal connection might very well exist between the filing of Ms. Baker’s discrimination complaint and her termination a mere three months later.” It should be noted that this decision was not a determination on the merits, and it is possible the employer will ultimately prevail, but the facts were sufficient to withstand a motion for summary judgment.

The Moral: It appears that KCI Technologies acted too soon. The company might have been better served to see how Ms. Baker performed over time. She might have caused problems with customers (their fear), but she might not have. By acting as precipitously as it did, the employer opened itself up to increased risk in the litigation.

Of course, every employer will have to weigh for itself whether acting to avoid harm in the workplace is more or less costly than the cost of litigation.

Johnson v. Lemonds, (M.D.N.C., February 4, 2016):

The Facts: In the second case, Paula Johnson had filed claims of age, disability, and genetic information discrimination against her former employer, Earth Angels, which was owned by Sandra Lemonds. Ms. Johnson had worked as a home health worker for Earth Angels.

Many months later, but while these claims of discrimination were still pending, Ms. Lemonds contacted Ms. Johnson’s subsequent employer, Kesler Home Care Services. She also visited the home of the new client for whom Ms. Johnson provided care. Ms. Johnson alleged that Ms. Lemonds’s contacts were retaliatory in nature, and that they caused the client to fire her—which led Kesler to fire her, and Kesler also fired her fiance and daughter who also worked for Kesler.

Defendant Lemonds filed a motion to dismiss based on insufficiency of the facts stated in the complaint. The federal magistrate overruled the motion. Based on what Ms. Johnson had alleged, the magistrate found that she had adequately stated a possibility that the underlying complaints of discrimination had caused the calls and visits to Ms. Johnson’s new employer and her later termination by Kesler.

Although a long delay between protected activity and adverse action tends to negate the inference of discrimination, the Court did not find that to be true in this case. The fact that seven months had passed since Ms. Johnson had filed her original complaints did not preclude a finding of retaliation. In fact, Ms. Johnson alleged that Ms. Lemonds took the earliest opportunity she could to retaliate.

Once again, the defendant has not lost everything, because this ruling was on a motion to dismiss, not on the merits. But the defendant faces a lengthy lawsuit.

The Moral: In this case, the defendant’s delay in acting for several months post-filing of the discrimination complaint was insufficient to rebut a retaliation claim. Waiting lengthy periods may negate an inference of discrimination, but it will not overcome it as a matter of law.

Putting it all together:

Defendants face a tricky situation in managing an employee once a claim of discrimination is filed. Any subsequent adverse action—regardless of the timing—increases the risk of a retaliation claim.

An employer is best served by demonstrating extreme patience in documenting an employee’s performance issues, by insuring that there are comparable employees treated the same as the plaintiff, and by providing the employee with multiple opportunities to improve (unless the situation poses a danger to the employee or others).

How have you managed your way through possible retaliation claims?

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Diversity in Universities and Beyond


VOTE – Early or on November 6, but VOTE!The world is full of new tragedies every day—suicide bombers and machine gun attacks on several continents, refugees streaming across borders, and natural disasters from floods to ice storms to hurricanes. Yet some days recently, the front page story has dealt with complaints of racism on university campuses. From Amherst to Claremont McKenna, from Mizzou to Yale, students protest what they see as institutionalized racism and lack of inclusion.

Racism in our society is an important topic and deserves attention. College faculty and administrators who do not take complaints seriously are doing their institutions—and their students—a disservice. Universities are no different than other institutions, such as corporations, police departments, and military units. Many organizations have faced complaints of racism and sexism and other discrimination and have had to change their attitudes and policies to manage the problem. Protests are often necessary to bring about change.

And yet university campuses should be places where opposing viewpoints can live, if not in harmony, at least in juxtaposition. The word “university” is derived from the Latin “universus,” meaning “the whole.” If a university cannot at least provide a forum for all perspectivies, it does not deserve the name. The word “diversity” means “variety,” and institutions claiming to support diversity must be open to a variety of opinions.

I am not excusing racist remarks. I am not shrugging at harassment of anyone. I am not approving of faculties or workplaces that do not include minorities or women or other underrepresented groups.

But I am suggesting that universities are not places where students should feel comfortable all the time. I am suggesting that everyone—students and faculties and administrators—should be open-minded in listening to opposing viewpoints and in conversing civilly when perspectives vary. Part of obtaining a university education is a broadening of one’s outlook on the world and its problems.

It’s not just conservative politicians that can’t find a place to speak on college campuses. Stand-up comedians also feel they cannot perform on campuses, out of fear someone will complain about being offended. It seems the pendulum of “political correctness” now swings too narrowly. Any speech too far from liberal righteousness must be quashed.

Yet this attitude cannot continue in light of the broad protections granted to freedom of speech under the First Amendment, which must be preserved on public college campuses.

One of the best articles I’ve seen on this topic was written by Mary Sanchez of The Kansas City Star. On November 16, 2015, she wrote an opinion piece entitled, “By focusing their protests, KU students can be vocal and effective,” regarding student protests at the University of Kansas.

Ms. Sanchez differentiated between micro-aggressions and racism. Micro-aggressions are wearying for those who experience them often, but racism occurs when that lack of understanding becomes institutionalized to the detriment of some group. Those are the issues on which protesters should focus to be effective.

She suggested that students cull their fifteen demands into those that were most important and focus on those. She said:

“Pick a few doable, impactful items. Then study them for all their nuances and tentacles.”

She also compared the university to corporate settings, and wrote:

“’Diversity’ never works unless the top people, the decision-makers holding the purse strings get behind it. Middle managers, (as the people who will carry marching orders forward) are crucial. Middle managers will implode the best-intended policy unless they buy into it. Who is the equivalent in a college setting — the regents, second-tier administrators, the deans? Figure it out for your campus.”

In addition to businesses providing a lesson to campus protesters, the campus protests can offer a lesson for businesses as well. The University of Missouri situation came to a head when the football players refused to practice or play until certain issues were addressed.

Every organization has segments that have more influence than others. Who are the football players in your organization—the visible, influential groups that, if aligned against the institution, can damage it? Be sure you address the concerns of those groups.

Let’s use the campus protests as an opportunity for dialogue, not as an excuse to shut down communication.

Where does your organization draw the line between permitting opposing viewpoints and protecting against offensiveness?

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Favorite Firing: “I’ve Hired a Murderer!”


asglassOne morning about twenty-five years ago I sat in my law office. I took a call from an HR manager who was a regular client of mine.

“Sara, I think I’ve hired a murderer!” she said with panic in her voice.

“OK, Roxie, tell me what happened,” I replied, trying to keep my voice lawyer-calm.

Roxie explained that an employee had come to see her about another employee, a shipping employee who worked on the loading dock at her company. According to the report, the shipping employee had been convicted of murder and served time in a state prison. Roxie hadn’t talked to the dockworker yet, but she had pulled his personnel file.

His application had left the space blank where it asked “Have you ever been convicted of a crime?” The hiring staff had either not noticed or had not asked about the missing information. At the time, this company didn’t do background checks beyond reference checking. But company policy stated that they didn’t hire any ex-felons.

“You’ll have to talk to him,” I said. “Ask whether the information is true. Then let’s talk again.”

“You want me to talk to a murderer?”

“Has he shown any sign of violence at work?” I asked.

“No. He’s been a decent employee.”

“Just have Security standing by,” I suggested.

Apply_HandThe Facts: Roxie talked to the employee, who admitted he had been convicted of murder. He hadn’t wanted to tell the company about his felonious past, so he deliberately left that part of the application blank. He had been a little surprised that no one asked him about the missing answer, but he was glad to have received the job.

Roxie and I discussed the situation, and she deliberated with other company managers. They decided to terminate the man’s employment. I told her there was some risk, as the man was African-American, and could file a claim of race discrimination. But at the time, the law was pretty clear that if a company had a blanket rule that no felons of any race could be employed, they had a strong defense. Although I told her they needed to check their applications more carefully and raise issues before making their hiring decisions.

The Moral: There are several morals to this story. Some applied twenty-five years ago, and some have developed in the time since this incident occurred.

1. Get hiring data before the person is hired

If you have certain rules that can disqualify applicants, be sure to ask about these issues before hiring someone. Ask about the qualifications of each and every applicant. Blanks in employment applications about qualifications are not acceptable, and the burden will be on the employer to show that the rule is justified, if you don’t even ensure that the forms are filled out correctly.

2. Apply the same qualifications to all applicants

If you have employment qualifications, they should apply to everyone. Don’t let some applicants slip through with lower qualifications than what you have said are required. And certainly don’t vary the qualifications based on an applicant’s race, sex, or other protected classification.

3. Address discrepancies immediately

If you find a discrepancy in an employee’s application, whether before the person is hired or after, address it as soon as you can. Provide an opportunity for the applicant or employee to provide the missing information, if it can be fixed.

If the person has already been hired and the discrepancy can’t be remedied—such as this employee’s prior conviction—you have a difficult decision to make, particularly if the employee has performed adequately. How can you show the missing qualification is job-related, if the employee has performed well? However, if you don’t fire the person, then you risk the validity of your qualifications.

4. Stay on top of federal, state, and local hiring regulations.

Although criminal convictions were an acceptable reason to weed out applicants twenty-five years ago, the EEOC now takes the position that employers cannot have a blanket rule against hiring felons, because minorities have higher conviction rates than whites. The criminal conviction must be related to the job for it to disqualify an applicant. A conviction of fraud would probably disqualify a bookkeeper, but probably would not disqualify the dockworker.

Thus, the risk today of firing the murderer is much greater than it was twenty years ago. Some employers would take the position that any violent crime is a disqualification for any position. Whether the EEOC and your local agencies would accept such a policy is uncertain. Know how judges in the state and federal courts where your business is located have ruled.

Have you ever been surprised by information missing from an applicant’s records?

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Keeping Your Wellness Programs Well: EEOC Notice of Proposed Rulemaking


EEOC sealWellness programs are a popular component of many employee benefit plans. Employers use these programs to encourage healthy behaviors among their employees, thereby reducing long-term medical costs. In addition, these programs often provide financial incentives to employees to engage their interest and sometimes include contests and classes that promote camaraderie and improve the workplace culture.

Over the last fifteen years, I have worked with several employers in a variety of workplaces to design and implement wellness programs. The employers are usually concerned about how to balance the costs and benefits of the programs and how to measure whether the program has a positive impact on employee health. It is also important to focus on changing behaviors that employees can control, while not penalizing them for health issues they cannot control.

On April 20, 2015, the EEOC released a Notice of Proposed Rulemaking addressing how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs.

Previously, federal regulations defined acceptable wellness programs under HIPAA. After passage of the Affordable Care Act in 2010, several government agencies approved wellness programs that offered financial incentives to employees, so long as the incentives did not exceed 30% of the cost of coverage to employees. Incentives of up to 50% of coverage were permitted for programs related to preventing or reducing the use of tobacco products.

However, the EEOC was not one of the agencies involved in the earlier regulatory effort. The EEOC took the position that wellness programs designed under the earlier regulations may not comply with Title VII of the Civil Rights Act of 1964 or the ADA. The EEOC challenged several wellness programs in court, most notably in a lawsuit filed against Honeywell International, Inc. Honeywell’s program imposed a penalty on workers who refused to undergo biometric testing. Such penalties are a common component in wellness program design.

The EEOC’s enforcement efforts against Honeywell and other companies has made many employers hesitant to develop new wellness programs, despite the desire of employers to promote healthy behaviors among their employees and to manage their rising health care costs.

With its recent Notice of Proposed Regulations, the EEOC is finally providing guidance on how to design wellness programs it believes are acceptable under the ADA.

First, the EEOC says, wellness programs must be voluntary.

Wellness programs must be voluntary.

  • Employees may not be required to participate in a wellness program, may not be denied health insurance or given reduced health benefits if they do not participate, and may not be disciplined for not participating.
  • Employers also may not interfere with the ADA rights of employees who do not want to participate in wellness programs, and may not coerce, intimidate, or threaten employees to get them to participate or achieve certain health outcomes.
  • Employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used, and how it will be kept confidential.

Next, the programs can only offer limited incentives for employee participation or for achieving health outcomes.

Employers may offer limited incentives for employees to participate in wellness programs or to achieve certain health outcomes.

  • The amount of the incentive that may be offered for an employee to participate or to achieve health outcomes may not exceed 30 percent of the total cost of employee-only coverage.
  • For example, if the total cost of coverage paid by both the employer and employee for self-only coverage is $5,000, the maximum incentive for an employee under that plan is $1,500.

This 30% “incentive” basically accepts the existing HIPAA regulatory definition of “reward”, although there are some differences. Most notably, the EEOC proposed regulations cap smoking cessation rewards at 30%, instead of the HIPAA 50%, although if all the employer requires is that the employee answer a question about tobacco use, then a 50% incentive is permitted.

The Notice also limits incentives to 30% for programs that ask an employee to respond to a disability-related inquiry or undergo a medical examination. This is contrary to the HIPAA safe harbor exempting bona fide benefit plans from the ADA prohibition on medical examinations.

The Notice also specifically states that compliance with the proposed rules will not mean that an employer has complied with Title VII of the Civil Rights Act, nor with the Age Discrimination in Employment Act.  Thus, the EEOC’s proposed rules are narrowly limited to compliance with the ADA.

Moreover, the rules state that employers must provide reasonable accommodations to disabled employees who seek to participate in wellness programs, such as sign language interpreters at classes for hearing-impaired participants.

Thus, the EEOC’s proposed regulations are of limited help to employers seeking to design wellness programs. It is of some benefit to know that 30% incentives are acceptable, but the regulations do not go far enough.

For more information, see

EEOC Issues Proposed Rule on Employee Wellness Programs and ADA Compliance, by Terri Gillespie, HRLegalist.com, April 21, 2015 

Wellness Programs: Agencies Issue Helpful Guidance but Look Before You Leap, by Nancy Campbell, SWLaw.com, April 21, 2015

EEOC Publishes Proposed Rule on How the ADA Applies to Employer Wellness Programs, McGuireWoods.com, April 23, 2015

EEOC Finally Releases Notice of Proposed Rulemaking for Wellness Programs, EmployeeBenefitsUpdate.com, Monday, April 27, 2015

The EEOC’s New Wellness Program Regulations: Notable or Needless, by Michael Mishlove, GSHLLP.com, April 30, 2015

New Guidance On Wellness Programs, by Mathew Parker, LaborLawyers.com, May 2, 2105

What should employers do as a result of the new EEOC Notice of Proposed Rulemaking?

  1. Read the proposed regulations and evaluate your wellness programs for compliance
  2. Consult your attorney and/or benefit plan advisors about possible changes to your wellness plans.
  3. Send your comments on the proposed regulations to the EEOC by June 19, 2015, if you so choose.

What has been your experience with employee wellness programs? What has worked best at your company?

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