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The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Editor, Richard R. Burns, rrb@hanftlaw.com or 218.529.2433.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- SMOKING BANS
- JOB BIAS CHARGES
- AMERICANS WITH DISABILITIES ACT (ADA) DISCRIMINATION
- TIP OF THE MONTH
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SMOKING BANS
Recent actions by some states and employers have made many employers consider banning smoking to various degrees. In Minnesota and Wisconsin, however, employers must be aware that each state has a law that prohibits discrimination against persons who use tobacco or other lawful products while off duty. This prohibition, however, does not limit you from charging higher health insurance premiums to smokers than nonsmokers nor does it keep you from prohibiting smoking while on duty, on your premises, or in your vehicles, so long as you enforce those bans uniformly.
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JOB BIAS CHARGES
Discrimination charges at the Equal Employment Opportunity Commission (EEOC) increased in 2006, the first increase since 2002. The EEOC received nearly 76,000 discrimination charges against private sector employers. The most frequent allegations were: race (27,238), sex discrimination (23,247), and retaliation (22,555). Other frequently cited charges were: age (16,548), disability (15,575), national origin (8,327), and religion (2,541). Fifteen percent of the sexual harassment charges were filed by men, which was a new record. Many charges alleged multiple types of discrimination so the total exceeds 76,000. The EEOC noted 22% of the more than 74,000 charges resolved in 2006 were favorable to the charging parties, which was a historically high result favoring employees.
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AMERICANS WITH DISABILITIES ACT (ADA) DISCRIMINATION
The Eighth Circuit Court of Appeals, which includes Minnesota, recently explained their positions on several important issues relating to disability discrimination. The case involved an employee with severe diabetes who could not work rotating shifts as required by his employer. On what are the essential job functions to be performed with or without accommodation, the Court stated that it would not examine deeply an employer's business decision, which on the surface appears reasonable and nondiscriminatory. Importantly, the Circuit Court adopted the position of other courts that allowing a temporary exception from an essential duty, such as shift rotation, does not demonstrate that the job function is nonessential. Otherwise, an employer who does more than the ADA requests would suffer. It also adopted the position that under the ADA an accommodation that would cause other employees to work harder, longer, or be deprived of opportunities, is not reasonable or required. Rehrs v. The Iams Company (8th Cir 2007).
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TIP OF THE MONTH: Sexual or other harassment investigations should be completed promptly. You should schedule witness interviews within 48 hours of a complaint. Statements should be taken in writing and signed by the witnesses. You should then bring your findings to upper management and likely legal counsel for approval. Remember courts will not second-guess your decision, even if you are wrong, when you make it in good faith, including your right to judge the creditability of witnesses.
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization. Our employment lawyers include Richard Burns, Tom Torgerson, Rob Merritt, and Gabe Johnson.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E-letter.
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To subscribe or unsubscribe to Employer E-Letter, e-mail your request to Richard R. Burns, rrb@hanftlaw.com or call 218.529.2433.
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Copyright 2007 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; fax 218.529.2401.
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