Discrimination and Harassment Law and Practice

Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of a disability and requires employers engage in an interactive process and provide reasonable accommodations. A failure to do so may result in liability.

The ADA requires employers to provide reasonable accommodations to qualified applicants or employees. A “reasonable accommodation” is defined as assistance or a change to a position or workplace that accommodates employees with disabilities so they can do the job without causing the employer undue hardship, such as too much difficulty or expense.

Use the Interactive Process to Determine Reasonable Accommodation

In order to determine the appropriate reasonable accommodation, employers and employees must engage in the interactive process, which requires communication and good-faith exploration of possible accommodations. An employer that acts in bad faith in the interactive process may be liable if it can be reasonably concluded that the employee would have been able to perform the job with a reasonable accommodation.

It’s a two-way street: an employee must also make a good faith effort to comply with any of the employer’s reasonable requests.

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I recently discussed the disadvantage of having a partial panel of commissioners at the U.S. Equal Employment Opportunity Commission (EEOC). Historically, the EEOC is comprised of five commissioners; however, the current panel only has three. Some argue this has hindered the EEOC’s ability to adequately investigate and file lawsuits to combat discrimination among the nation’s

We are excited to share the first installment of our newest video series,
10 Steps Every Company Should Take When Conducting Workplace
. This series is intended to guide HR leaders faced with investigating a complaint between coworkers, such as harassment or inappropriate conduct, through the investigation process.

Each video in this series

I recently provided insight for an article in HR Dive on ageism in the workplace and how employers can address these stereotypes.

Ageism can come in many forms in the workplace. For example, a typical stereotype can include expecting an older employee to have a problem adjusting to the new computer system, believing they will be resistant to change or wondering how an older employee is going to “keep up” with the job’s demands.

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In an article published by the Nashville Business Journal, we urge employers to get ready for the U.S. Equal Employment Opportunity Commission’s data reporting. Although facing criticism, the U.S. Equal Employment Opportunity Commission (EEOC) is moving forward with its pay data collection, and with the reporting deadline set for September 30, employers should prepare now.

Employers with more than 100 employees and any federal contractors with more with 50 employees are required to submit an EEO-1 survey, which has historically analyzed organizations’ employment data categorized by sex, race and ethnicity. Under the new reporting requirements, employers and federal contractors with more than 100 employees will also report compensation data.

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I recently provided insight for an article outlining how companies should discuss retirement plans with their older employees. I explained that an annual review period would be an appropriate time to discuss an employee’s upcoming plans for retirement and any need for success planning.

“Employers should pose questions to employees about retirement plans with the sole goal of understanding staffing needs for future workforce planning,” I explained. “This discussion should be general in nature, should not make reference to the employee’s age or ‘generational’ comments, and should promptly end if the employee indicates that retirement is not a consideration at that point.”

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More and more companies are implementing socially conscious workplace policies and are free to do so, as long as no discrimination occurs.More and more companies are implementing socially conscious policies on topics ranging from banning the use of plastic-ware to refusing to reimburse employees for meals that include meat or are otherwise non-vegan. Companies are generally free to implement these types of policies, as long as employees are not unlawfully discriminated against as part of the policy. I recently examined the legality of company implementation of socially conscious policies in the workplace in an article published Workplace Magazine.

“Title VII of the Civil Rights Act protects employees from discrimination on the basis of race, color, religion, sex and national origin, and the American with Disabilities Act protects employees with disabilities; the Age Discrimination in Employment Act prohibits age discrimination. But there is no employment law protecting an employee’s right to use plastic,” I explained.

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I was quoted in a piece published in Business Insurance discussing the Supreme Court’s review of three cases related to sexual orientation and gender identity discrimination protections under Title VII of the Civil Rights Act of 1964.

Two of the cases, Melissa Zarda et al. v. Altitude Express and Gerald Lynn Bostock V. Clayton County, will be heard together. Both cases include employees contending they were fired from their jobs due to their sexual orientation.

The third case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, will be heard separately. In that case, the Sixth Circuit in Cincinnati ruled in favor of a transgender worker who was fired when she told her funeral home employer she was undergoing a gender transition from male to female.

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Bass, Berry & Sims invites you to a complimentary seminar focusing on trending areas of labor & employment law.

Topics will include:

  • FMLA/ADA Considerations for Leaves of Absence: A practical, scenario-based discussion regarding extended leaves of absence and how they are regulated by application of the FMLA and the ADA, including a detailed discussion of the EEOC’s position with respect to extended leave as a reasonable accommodation.
  • Preventing and Addressing Workplace Violence: A comprehensive discussion of workplace violence, including strategies for preventing and properly addressing acts of violence in the workplace.
  • An Employers Approach to Reducing Harassment: Questions employers should ask as they strive to reduce harassment in the workplace and cultivate a healthy working environment.


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In an article published in the Nashville Business Journal’s Largest Employers special report on July 6, 2018, I provided a column highlighting three important questions for employers to ask as they strive to reduce harassment in the workplace and cultivate a healthy workplace environment. The effectiveness of an anti-harassment policy often comes down to employee perception of how the policy is enforced, trained and embraced by leadership, so it is important that employers are mindful of the answers to these questions:

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