Presenter:

Denise Lowell-Britt, Esq.

October 24, 2014

School Personnel

Administrators

Pregnancy Discrimination

Teacher Nancy Nurser had a baby in

July and returns to work in

September. She wants to continue

nursing. She asks her Principal to

allow her breaks and a private

location in which to express milk.

Pregnancy Discrimination

Aside from protections under Title

VII, female employees who are

breastfeeding also have rights under

other laws.

This issue and many, others are

addressed in recent EEOC

Guidance.

Pregnancy Discrimination

July 14, 2014: The EEOC published a 51

page document entitled, “EEOC

Enforcement Guidance on Pregnancy

Discrimination and Related Issues”.

http://www.eeoc.gov/laws/guidance/pregnancy_

guidance.cfm

ADA Awareness

Teacher Connie Conks-Out has been

sleeping during professional development

sessions and classes with her high school

freshman students. She has self-identified

as having a sleep disorder.

The Principal has issued a Letter of

Reprimand, after previously warning

Connie numerous times via email.

ADA Awareness

All supervisors in the District MUST

recognize that the Americans with

Disabilities Act (ADA) is likely

implicated when an employee’s

misconduct appears related to

his/her disability.

JAN: ADA Support & Guidance

• See attachments to this handout.

• Job Accommodation Network (JAN) can

provide valuable information regarding

the ADA and ideas for “reasonable

accommodation” for many different

disabilities.

Vehicle Cell Phone Use On the Job

You are driving to the District office

and you pass one of your

maintenance workers driving in a

District truck (driving to a school).

You note that the worker is talking on

his cell phone. Is this a problem?

Vehicle Cell Phone Use on the Job

• Jan 3, 2012: U.S. Dept. of

Transportation prohibits drivers of

commercial motor vehicles from using

handheld mobile phones.

• In any situation, the District can be held

vicariously liable for “distracted drivers”

who cause injury/death to others.

Vehicle Cell Phone Use on the Job

• If the employee is driving a personal

vehicle and using a personal cell phone

and his/her supervisor texts or calls

about a work matter, the District can be

held liable for resulting injury or death

from car accident caused by the

distracted employee.

Website Accessibility

Ellory Enright is a talented and popular 9th

grade teacher. He has a vision

impairment, which has worsened this

year. Like all teachers in the school, he is

required to maintain a teacher website.

He complains to you that he cannot see

the website clearly or fully access the

website, even when content is enlarged.

Website Accessibility

• ADA Implications specific to teacher:

Conduct an interactive meeting with the

employee and develop an accommodation

plan.

• Section 504: The District must provide

employees & the public access to information

that is comparable to access afforded non-

disabled individuals.

Website Accessibility

• OCR: The District must makes its

website and all intranet pages

accessible by removing barriers that

prevent access by persons with

disabilities.

• OCR is investigating several complaints

on this issue in Arizona!

Website Accessibility

A widely accepted standard for

accessibility is Web Content Accessibility

Guidelines 2.0 (WCAG 2.0), Level AA.

See http://www.w3.org/WAI/intro/wcag

for more information.

Religious Accommodation

• You are interviewing for a new school

receptionist. An applicant with stellar

qualifications arrives for an interview.

She is wearing a headscarf and makes

it known that she wears it for religious

reasons. You are concerned about the

“reception” she will get from parents and

some staff if hired. What do you do?

Religious Accommodation

EEOC’s definition of religious practice:

• Traditional religious beliefs, moral &

ethical beliefs and beliefs individuals

hold with the strength of traditional

religious views.

• Something more than just a sincerely

held belief.

Religious Accommodation

Reasonable accommodation

is required unless the

accommodation causes undue

hardship on the employer.

Religious Accommodation

• The District cannot deny the applicant

employment on the basis that she will

want to wear a headscarf.

• The District will need to accommodate

the individual’s headscarf unless it has

a dress code that is justified by

business necessity (not applicable in

this example).

Religious Accommodation

Example of “business necessity” in dress

code matters:

• The employee will work with dangerous

machinery where clothing could get

caught in equipment.

• Flowing hair could result in health/safety

risk (i.e. cafeteria worker).

Religious Accommodation

Options for reasonable accommodation

regarding religious holidays or need to

adjust work hours for religious reasons

include (but are not limited to):

• Flexible arrival/departure times.

• Floating or optional holidays.

• Flexible work breaks.

Religious Accommodation

• Staggered work hours.

• Make up of lost time.

• Substitute workers.

• Exchange of hours.

• Change in job assignments.

• Job transfers.

Social Media Implicates

Employee Fraud

Franny Funn requests FMLA leave for a

back injury she says is work related.

However, another employee reports that

Franny has posted photos on Facebook

showing her parasailing and playing

tennis while on leave. What can you do?

Social Media Implicates

Employee Fraud

• Ask the employee who reported the

posting to print hard copies of the

photos/postings.

• Remember that social media sites can

be manipulated and falsified.

• Provide the employee at issue with a

chance to respond before taking any

action!

Transgendered Employees

Paul was hired in 2010 as a history

teacher in your high school. At the

end of the 2012-2013 school year,

Paul tells you he is going through

hormone therapy and will be

transitioning in the coming year to

become a female. What rights does

Paul have?

Transgendered Employees

EEOC (April 2012):

Employment discrimination based on

an individual’s gender identity,

change of sex, and/or transgender

status is a form of sex discrimination

that violates Title VII (relying on

Macy v. Holder ).

Transgendered Employees

EEOC:

Although Title VII does not explicitly

include sexual orientation or gender

identity, such discrimination is

unlawful because it occurs when an

individual does not conform to

traditional gender stereotypes.

Transgendered Employees

Practice tips:

• Recognize the liability risks associated

with discrimination based upon

transgender status.

• Review non-discrimination policies;

consider including gender identity & sex

stereotyping as “protected” categories.

Transgendered Employees

• Consult with the transgendered

employee regarding preference for

pronouns.

• Review dress codes to make them

gender neutral; they should not be

based upon stereotypes or gender

expectations.

Transgendered Employees

• Consider the employee’s gender

presentation and identity as you make

decisions about rest room access.

• Involve the employee in deciding how to

notify others to set expectations re: non-

discrimination and respect and to

encourage their support.

Weapons at Work

Teacher Gunnar Wesson lets the

Principal know that he intends to

start bringing a gun to school this

coming school year, in light of

national tragedies that have

occurred.

Weapons at Work

What the District CAN do: • Prohibit the employee from bringing a firearm into the

school.

• Prohibit the employee from carrying the firearm on

his/her person on District property.

• Require the employee to keep the firearm unloaded

and in the employee’s locked and privately owned

vehicle or a locked compartment w/in the vehicle and

require that the firearm not be visible from the outside

of the vehicle.

Weapons at Work

What the District CAN do:

• Prohibit the employee from keeping his/her

firearm in a District owned/leased vehicle.

• Report the employee to law enforcement for

violations – it is a crime to possess a weapon

in violation of law.

• Enforce the District’s Policies & Regulations – See, ASBA Policy GBEB-R, Staff Conduct

Weapons at Work

Review relevant Arizona laws:

- A.R.S. 12-781

- A.R.S. 13-3102

- A.R.S. 13-3108

Disclaimer

This presentation and related

handout is for informative purposes

only and should not be used in place

of legal advice.

Denise Lowell-Britt UDALL SHUMWAY PLC

1138 North Alma School Road, Suite 101 Mesa, Arizona 85201

dlb@udallshumway.com | 480-461-5333 www.udallshumway.com

4189618.1