October 2015

October 9, 2015

This past weekend, I was thinking about blogging, while standing in my kitchen cutting the cheese (I was cutting the cheese for a party I was having). I concluded that there are some blogs that you need to hold in because you aren’t quite sure the audience can handle it. Then, there are other blogs that you have to let loose, because if you hold it in your stomach just won’t feel right. Well, this is one of those blogs that I had to let rip, because staying silent on this issue could be deadly for employers (well, not really deadly).

Last month, a Trenton, New Jersey business was sued for violations of the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”). The Plaintiff in the lawsuit was a part-time employee of the business, who assisted and was the wife of the business’ comptroller.

According to the Complaint, Plaintiff’s husband was obese, weighing 420 pounds and in October of 2010, Plaintiff’s husband underwent gastric bypass surgery. Also, according to the Complaint after the surgery, Plaintiff’s husband suffered the side effects of extreme flatulence and uncontrollable diarrhea. These symptoms allegedly worsened over time and caused the Plaintiff significant disruption in the workplace.

Plaintiff’s employer aired its concerns about the side effects and asked that Plaintiff’s husband work from home. Plaintiff’s employer also allegedly made statements to Plaintiff about her husband’s side effects and whether there was anything that could be done to alleviate the issue.

About three and a half years after the surgery, Plaintiff’s husband was terminated. Instead of just letting one go, the business also terminated Plaintiff. Plaintiff brought the lawsuit alleging that she was terminated for associating with her husband, who allegedly has a disability.

In reading this, many employers might think it stinks, thinking how can an employee bring a claim under the Americans with Disabilities Act when they don’t have a disability. Well, the fact is that in some instances an employee without a disability can bring a claim under the ADA, as the Plaintiff has done, for association discrimination.

The ADA’s anti-discrimination by association provision prohibits:

excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.

In order to establish a case of association discrimination in the case of a termination, a plaintiff must prove that:

she was qualified for her job at the time of the termination;
she was terminated;
at the time of the termination, plaintiff was known by her employer to have a relative or an associate with a disability; and
the termination occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the termination decision.

Notably, the ADA refers to terminations (or other adverse actions) motivated by ‘the known disability of an individual’ with whom an employee associates, as opposed to actions occasioned by the association. For instance, being terminated for missing work related to someone else’s disability is not actionable under the ADA (although it may be under the Family and Medical Leave Act). The termination must be because of the relationship or association itself.

In passing, just because an employee is not disabled, does not mean that the ADA might not provide protection for an employee, should that employee have associated with a disabled individual. Employers, be alert, because the last thing you want is to get a whiff of an association claim after its already been let loose.

For more information about employment law, feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

By James B. Shrimp, Esq.

This past weekend Jonathan Papelbon, the talented and unpredictable closer for the Washington Nationals, had a heated discussion with MVP-candidate Bryce Harper about Harper’s failure to run hard after hitting a fly ball. The heated discussion quickly turned physical, when Papelbon grabbed Harper around the neck and pushed him up against the dugout wall. Papelbon and Harper were then separated by their teammates. In response, the Nationals have suspended Papelbon for four games.

As a life-long Phillies fan, I take some degree of warped pleasure in seeing how Papelbon, a Phillie until two months ago, has apparently unsettled the Nationals. The Nationals were one game ahead of the Mets at the time of the trade and are now nine games behind the Mets and have been eliminated from playoff contention. My twisted interest aside, this incident does raise the issue of how an employer should deal with conflict and fights at work. Importantly, this is conflict that does not rise to the level of unlawful discrimination or harassment.

No workplace is utopian. We are all human, so if you employ more than just yourself, the ingredients are present for conflict, and if allowed to simmer, fights. The conflicts can range from high-school style “clique” drama, to manufactured power-play disputes, to professional disputes. Many of these conflicts cannot be avoided, but what an employer can do is address and manage the conflict so it does not disrupt workplace harmony, or simmer into a physical altercation, both of which are bad for the employees involved, bad for morale and could lead to potential legal liability.

Although inevitable, there are some things employers can do to manage workplace conflict.

Accept Conflict and Manage It

As stated above, conflict happens in the workplace, whether it be conflict derived from “drama” or whether it is serious decision-based conflict. In either case, the employer cannot take the position that conflict “cannot happen in my workplace.” The employer must not dismiss out-of-hand the position of one employee over another. Listening, not just hearing, is key to managing conflict. Moreover, the employee and employer must understand that the goal is not circling around the campfire signing kumbaya. One does not have to like who you work with, but you have to function in the workplace in a respectful manner. The key for the employer is to manage the conflict so the parties can move forward in a respectful manner.

Look for Personality Conflicts

Oil and water. It happens. Sometimes you have two good employees who work hard and there is something that just does not work between them. It could be present from the first interaction, or it could develop later. If those individuals with the conflict cannot recognize and accept those conflicts between them, which would allow them to move forward in a respectful manner, the management of the conflict may well include the separation of the two individuals. Personality conflicts, as opposed to “workplace drama” or professional conflict, can quickly and seriously infect the morale of a workplace.

Open Door Policy/Communication

Your employee handbook should contain, and management should make clear, that an open door policy exists, and that employees should feel comfortable raising and discussing the conflict in hopes of resolving the matter.

Don’t Be Afraid to Discipline or Terminate

If the conflict is continuous, or if the conflict extends beyond verbal disagreement, the employer must not be hesitant to take disciplinary action, including termination if the circumstances require it.

Most employers have, and I would recommend, a zero tolerance policy with respect to physical fighting, or threats of bodily harm. For instance, if an employee punches or threatens physical harm with an instrument (e.g., knife, gun, etc…) the employer should contact the police and the employee should be terminated.

If the employer fails to take disciplinary action regarding an employee with a propensity for intense conflict and violence, the employer may be liable for negligent supervision and other torts. In short, in the real world of everyday employment, Papelbon would have been terminated, not just suspended for four games.

For more information about employment law, feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.

Month: October 2015

Association Discrimination: Another Consideration When You Cut One (an employee that is)

Workplace Conflict: Management Lessons from Jonathan Papelbon