My thanks to Donna Seale

For those who have been following my discussion with Donna Seale at Human Rights in the Workplace, she has posted what will be the last of our back and forth on Internet addiction and disability discrimination. For those who have not been following it, you can catch up with these links:

• My initial post: Is Internet addiction a protected disability?
• Donna's 1st response: Internet addicts: the next wave in accommodation claims?
• My rebuttal: Dealing with Internet addiction under the ADA
• Donna's 2nd response: Internet addiction - part two
• My conclusion: More on internet addiction
• Donna's conclusion: Internet addiction: the discussion continues

There's nothing else to say other than thank you to Donna for taking part in what turned into a powerful demonstration of what blogging can accomplish.

Would you promote your poor performers?

Would you promote an employee who ranked a 2 out of 10 on his or her last performance review? That is exactly what the Democratic and Republican parties are asking us to do. The Presidential campaign is referred to as one long job interview. Yet, the 3 people who are applying for the job get low marks from the public. According to RealClearPolitics, only 21% of the country approves of the job Congress is doing. Yet, John McCain, Hillary Clinton, and Barack Obama are all sitting Senators and vying for this promotion.

More on internet addiction

Donna Seale at Human Rights in the Workplace is continuing our discussion on the differences between American and Canadian disability discrimination law and Internet addiction. Her latest is as follows:

As for Mr. Hyman's comments that even if an employer paused to consider accommodating an Internet addicted employee the employee would still have to perform the essential duties of the job, I completely agree. Where we part company is on the approach to the actual question of accommodation. While it may not be easy to think up possible ways an employer could accommodate an Internet addicted employee who needed to use the Internet and e-mail to do her job, the law in this country still requires an employer to engage in that process. Failure to actually engage a process to consider what could be done to accommodate is, in and of itself, sufficient to trigger liability under Canadian human rights law even if no accommodation could ultimately be provided. (Besides, aren't there blocking devices employers can use to block employee access to non-work related Internet sites? -- speaking from a real non-techie perspective -- but I digress). In any event, accommodation is an individualized process and would have to be considered from the perspective of what would need to be done to accommodate the specific employee in question in their specific job in question, which may require a lot of an employer or, perhaps, not.

Let me respond as follows:

1. It is entirely defensible to terminate an employee with a disability if you don't know the employee has a disability, and you cannot make an accommodation if you don't know that one is needed.
2. If an employee requests an accommodation, the employer must engage in an interactive process to determine if there is a reasonable accommodation available that will enable the employee to perform the essential functions of his or her job with or without reasonable accommodation. Any accommodation that is provided need not meet the employee's preference -- it just must be reasonable.
3. In all likelihood, this interactive process will result in a dead-end for an employee who claims an Internet addiction. While there is software and other techie solutions to block access to certain websites, those solutions are expensive, hard to implement, and will probably cause an undue hardship on the employer.

In sum, I agree with Donna's conclusion:

Tread lightly whenever an employee raises a potential disability issue connected to their inability to do their job because whatever actions you take after being advised of the potential disability (whether it is Internet addiction or something else) may be considered discriminatory. Forewarned is forearmed.

Companies should not turn a blind eye to potential accommodation issues. Indeed, doing that could result in liability where it does not otherwise exist. In the case of an addiction, however, employees should not be able to lean on the ADA as a crutch to save their jobs when they permit their addiction (whether it's the Internet, sex, drugs, or something else) to pervade the work environment.

The importance of following established criteria

In Dunlap v. Tennessee Valley Auth., decided last week by the 6th Circuit, illustrates the dangers employers face when deviating from established criteria in the hiring process.

David Dunlap, a 52-year-old African American, was one of 21 applicants for 10 positions with the TVA. Before it began interviewing, the selection committee decided that the interview would account for 70% of an applicant's final score and technical expertise would account for the other 30%. While the committed would score each candidates after his or her interview, the committee would also review the the scores from all of the prior interviewees and re-score them. This "score-balancing" caused the final scores to vary widely from the initial scores. For example, Dunlap's attendance record of only a few days off for family illness was scored a 3.7, while two white applicants with the same answer scored a 4.2 and 4.5. Dunlap's perfect safety record received a 4, while another white applicant with two prior accidents scored a 6.

After the interviews, the 21 applicants were ranked in order of most to least qualified. Dunlap ranked 14th. Of the 10 hirees, only one was black. Dunlap alleges that the combined weight of his more than 20 years of technical and supervisory experience made him a more qualified applicant than some of the other applicants who were hired, some of whom had only minimal supervisory experience and poorer safety records. Dunlap scored the same on the technical part of the application as five of the selected white candidates, but he scored much lower on the interview. He alleged that the interview process was biased to select less qualified candidates and hide racial preferences. The Court agreed.

The Court found that the TVA's hiring matrix was a pretext for racial discrimination:

First, the selection committee determined that the interview would account for seventy percent of an applicant’s final score, and technical expertise would account for thirty percent, therefore transferring the bulk of the final score from an objective measurement (merit and experience) towards a subjective measurement (communication skills). The TVA’s "Principles and Practices" on filling vacant positions, however, mandate that "merit and efficiency form the basis for selection of job candidates," stating that "education, training, experience, ability and previous work performance serve as a basis for appraisal of merit and efficiency."

Thus, because the hiring matrix for these positions differed from the employer's established policies, the Court found the use of the matrix was pretextual. The Court also found that the interviewers' manipulation of the scores to ensure that certain people would rank in the top 10 was also evidence of pretext.

TVA's failure to follow its own established policies and practices is what ultimately doomed it in this case. If it had hired the same 9 white candidates instead of Dunlap, but instead relied solely on objective technical criteria as its "Principles and Practices" required, and had not balanced scores after each interview, it would have been close to impossible for Dunlap to have proved discrimination. The objective criteria were supposed to hire the 10 best candidates, not the nine best white candidates and one token African American.

The use of objective criteria, whether in hiring, or for selecting employees to be included in a RIF, is a great way to insulate your organization from a claim of discrimination. Those criteria, however, must be safe from scrutiny. When a subjective component is introduced, such as interviewing or "score leveling", it looks more and more like something other than objective qualifications are the deciding factor. Courts and juries like to think that companies hire and retain the best, most qualified people. If a plaintiff can show that numbers that were supposed to be objective are anything but, those same judges and juries will look for an explanation as to why. Often times, the answer they will find is discrimination.

Dealing with Internet addiction under the ADA

Last week, I asked whether the ADA affored protection to Internet addicts. I concluded that the ADA would not protect an employee who spends all hours of the workday surfing the Web for non-work reasons:

Rest assured, though, that even if the DSM recognizes Internet or email addiction as a bona fide mental disorder, employers should still be able reasonably to regulate use at work without running afoul of the ADA. Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job.

Donna Seale at Human Rights in the Workplace, a blog on Canadian employment law issues, suggests that under Canadian discrimination laws, the result might be different:

While I agree with the premise that employers have a legitimate interest in ensuring employees remain productive and do not misuse company technology, the pendulum in Canada in relation to the accommodation of disability in the workplace has clearly swung in the direction of employees. As a result, I'm not so certain that Canadian employers who attempt to take a strictly black and white approach to the enforcement of technology use policies (for example) won't come into conflict with human rights legislation.

I agree that issues in employment relations are never black and white. Even something such as an "Internet addiction" falls into some shade of gray. I just think this issue leans much closer to either pole than the middle. If an employee is not doing his or her job, and is caught surfing the Net all hours of the day, the employer should have right to terminate that employee, whether for lack of productivity, theft, or violation of a technology use policy.

If the employee says in response to the termination, "But I am addicted to the Net," the employer has a choice. It can (1) carry through with its decision, (2) reconsider its decision and try to make a reasonable accommodation for the employee, or (3) hold the employee's job while the employee seeks help. The magnanimous employer may choose #2 or #3, but I don't think the ADA requires it.

The situation may be different if the employee requests an accommodation for the addiction before the termination decision, but in that case the employee still has to be able to perform the essential functions of the job with that accommodation. If the employee's job requires Internet and email access, it's hard to imagine an accommodation that would enable to employee to work.

What else I'm reading this week #23

Lots of really good practical advice this week:

Michael Moore of the Pennsylvania Employment Law Blog gives 5 things every HR employee should know about retaliation.

John Phillips, guest blogging at the Connecticut Employment Law Blog, tells us what to do with a problem employee who lacks any documentation to support the termination.

BLR's HR Daily Advisor provides 7 traps to avoid in managing employees with disabilities.

George's Employment Blawg talks about the use of surveys to measure employee satisfaction and other issues.

The HR Capitalist, Kris Dunn, blogs on how not to write vacation policies.

Finally, the Alaska Employment Law Blog talks about why it is not a good idea to conduct locker room video surveillance of your employee.

English-only rule at Philadelphia restaurant upheld

As a native of Philadelphia, nothing makes my mouth water more than a cheesesteak (please, please, don't call it a Philly cheesesteak, which is redundant, or a steak and cheese, which will just show your ignorance). You might be asking yourself, what do cheesesteaks have to do with employment law?

Geno's, one of the sacred temples of cheesesteaks at the corner of 9th and Passyunk in South Philly, had a small problem with the Philadelphia Commission on Human Relations about a sign hanging in its window that reads, "This is America. When ordering, please speak English." Yesterday, a split three-member panel of that Commission ruled that the sign did not convey a message that service would be refused to non-English speakers. Anti-immigration groups are heralding Geno's owner, Joey Vento, as a hero. Today's Philadelphia Inquirer reports that the one dissenting commission member relied on testimony from witnesses who "felt intimidated and unwelcomed by the sign's message. One witness, University of Pennsylvania sociology professor Camille Z. Charles, likened the 'speak English' signs to 'whites only' signs from the Jim Crow era."

While Professor Charles might be overly dramatic, her comments highlight the raw emotion that people feel over English-only rules. As the debate continues in Congress over the legality of English-only workplaces, and some state legislatures consider similar bills that would permit employers to require their employees to speak English, businesses should continue to tread carefully before implementing such a policy. English-only workplace policies should only extend as far as necessary to reach an articulated business reason (such as safety or work-related communication among employees), and it is a good idea to consult with employment counsel to evaluate whether the policy is not discriminatory as written or applied.

[Hat tip: Overlawyered]