meuw management certification program session e: … e 2020 slides_part 2.pdf · meuw management...

MEUW MANAGEMENT TRAINING PROGRAMSession E: Personnel IssuesSTEVEN C. ZACH – 608-332-3734

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Discrimination and Harassment

• The first #MeToo: Ruth: Chapter 2

• So Boaz said to Ruth, “My daughter, listen to me. Don’t go and glean in another field and don’t go away from here. Stay here with the women who work for me. Watch the field where the men are harvesting, and follow along after the women. I have told the men not to lay a hand on you. And whenever you are thirsty, go and get a drink from the water jars the men have filled.”


• The #MeToo movement has been a stark reminder that the issueof harassment in the workplace requires continuous attentionboth for legal compliance and for general morale and productivity.

• Harassment occurs in the public sector as well as in the private sector.• It occurs in all industries.• It occurs across all levels of employees.• It occurs across all demographics of employees and third parties.• It occurs across socio-economic strata.


• Anxiety — concentration issues, fear for personal safety. • Depression — isolation, loss of trust, loss of self-esteem. • Harm to both work and personal relationships. • Absenteeism. • Reduced productivity. • Workplace morale.

• Bad publicity. • Departures of valued employees. • Legal liability.

Discrimination and Harassment• Coverage

• Title VII of the Civil Rights Act of 1964 covers employers with 15 or more employees.

• Race• Color• Religion• Sex (gender, pregnancy and child-birth)• National Origin

Discrimination and Harassment• Coverage

• The Wisconsin Fair Employment Act covers all employers with 1 employee.

• Age• Ancestry• Arrest and Conviction Record• Honesty Testing• Marital Status• Military Service• Sexual Orientation• Use/non-use lawful products off premises during non-working hours

Discrimination and Harassment• Prohibited Acts

• Making an employment decision “because” of a person’sprotected classification.

• Engaging in “harassment” “because of” a person’s protectedclassification.

• Retaliating against an employee because a person filed a claimalleging discrimination or opposed such practice.


• Between Whom May Hostile Work Environment Harassment Occur?

• By an employee toward another employee. • By an employee toward a supervisor. • By a supervisor toward an employee. • By an employee toward any third party. • By any third party toward an employee.


• Harassment

• Verbal or physical abuse.• Epithets, name-calling, slurs. • Threats or intimidating behaviors.• Vulgar, obscene or derogatory language. • Mimicry, mocking accents


•Harassment

• Lewd or offensive gestures or pranks. • Offensive jokes in any medium.• Offensive, threatening or hostile e-mails, text messages or

other electronic communication.• Excluding or ignoring specific individuals.• Social media posts.

Discrimination and Harassment• Harassment

• Unwelcome conduct

• Submission to the conduct:

• is a condition of employment;• unreasonably interferes with work; or• creates a hostile, intimidating or offensive environment.


• Intent is not relevant.

• Does not apply to consensual relationships.

• “Welcomeness” – judged by the totality of the circumstances

• Severe and pervasive

• Objective• Subjective• Must be more than isolated incidents except if physical contact.


• Employers are strictly liable for tangible employment actionsby supervisors.

• In other circumstances, an employer can avoid liability if:

• Exercised reasonable care to prevent the behavior; and

• The employee unreasonably failed to take advantage of thepreventative or corrective opportunities.

Disability Laws• Scope

• The American with Disabilities Act applies to employers with 15 or more employees.

• The Wisconsin Fair Employment Act applies to employers with 1 employee.

• Prohibits discrimination on the basis of disability.

• Requires the reasonable accommodation of disabilities.

• Prohibits retaliation because a person has sought the protection of the disability laws.

Disability Laws• Employers may not discriminate against:

• otherwise qualified

• applicants or current employees

• who have physical or psychological disabilities

• in any aspect of the employment relationship, including the application procedure, hiring,advancement, discharge, compensation, training, or any other term, condition or privilege ofemployment. This includes the provision of health insurance and other benefits.

Disability Laws

• Employers must provide reasonableaccommodations for applicants and employees,both in the hiring process and with regard to allother aspects of employment.

Disability Laws• Exceptions to Coverage:

• Individual is not a “qualified individual with disability.”

• “Undue hardship”

• “Direct Threat”

Disability Laws

• Definition of Disability:

• A physical or mental impairment that substantially limits oneor more of the major life activities of an individual;

• A record of having such an impairment; or

• Being regarded as having such an impairment.

Disability Laws• Definition of Disability – ADAAA impact

• ADA should be interpreted broadly to maximize coverage.

• Major life activities expanded.

• Mitigating measures cannot be considered.

• Episodic conditions or conditions in remission are covered.

• Expansion of the “regarded as disabled” prong.

Disability Laws

• “Undue Hardship”

• Undue hardship means a significant difficulty or expenseincurred by an employer.

Disability Laws


• “to the health or safety of other individuals in theworkplace;” and

• the individual cannot perform the job safely withreasonable accommodation.

Disability Laws


• “shall be based on an individualized assessment of theindividual’s present ability to safely perform the essentialfunctions of the job . . . that relies on the most currentmedical knowledge and/or on the best available objectiveevidence.”

Disability Laws


An employer, must consider four factors:

• The duration of the risk;

• The nature and severity of the potential harm;

• The likelihood that the potential harm will occur; and

• The imminence of the potential harm.

Disability Laws


• The determination that a direct threat exists must be based on objective,factual evidence - not on subjective perceptions, irrational fears, patronizingattitudes, or stereotypes - about the nature or effect of a particular disability, orof disability generally.

• Relevant evidence may include:

• Input from the individual with a disability;

• The experience of the individual with a disability in previous similarpositions; and

• Opinions of medical doctors, rehabilitation counselors, or physical therapistswho have expertise in the disability involved and/or direct knowledge of theindividual with the disability.

Disability Laws

•Application in the Hiring Process

• Prior to an offer of employment, the ADA prohibits alldisability-related inquiries and medical examinations, evenif they are related to the job.

Disability Laws

• Application in the Hiring Process: Disability-Related Inquiries

• asking an applicant whether the applicant has (or ever had) a disability orhow the applicant became disabled or inquiring about the nature or severityof an applicant's disability;

• asking an applicant to provide medical documentation regarding theapplicant’s disability;

• asking an applicant’s co-worker, family member, doctor, or another personabout an applicant's disability;

Disability Laws• Application in the Hiring Process: Disability-Related Inquiries

• asking about an applicant's prior workers' compensation history;

• asking an applicant whether the applicant currently is taking any prescription drugsor medications, whether the applicant has taken any such drugs or medications inthe past, or monitoring an applicant's taking of such drugs or medications; and

• asking an applicant a broad question about the applicant’s impairments that is likelyto elicit information about a disability (e.g., What impairments do you have?).

Disability Laws

• Application in the Hiring Process: Permitted Inquiries

• asking generally about an applicant's well-being (e.g., How are you?);

• asking an applicant who looks tired or ill if s/he is feeling okay;

• asking an applicant who is sneezing or coughing whether s/he has a cold or allergies, or askinghow an applicant is doing following the death of a loved one or the end of amarriage/relationship;

• asking an applicant about non-disability-related impairments (e.g., How did you break your leg?);

Disability Laws

• Application in the Hiring Process: Permitted Inquiries

• asking an applicant whether the applicant can perform job functions;

• asking an applicant whether the applicant has been drinking;

• asking an applicant about the applicant’s current illegal use of drugs; and

• asking an applicant to provide the name and telephone number of a person tocontact in case of a medical emergency.

Disability Laws• Application in the Hiring Process

• At the second stage - after an applicant is given a conditionaljob offer, but before the applicant starts work - an employermay make disability-related inquiries and conduct medicalexaminations, regardless of whether they are related to thejob, as long as it does so for all entering employees in the samejob category.

Disability Laws

• Application to the Hiring Process: Medical Examinations

• vision tests conducted and analyzed by an ophthalmologist or optometrist;

• blood, urine, and breath analyses to check for alcohol use;

• blood, urine, saliva, and hair analyses to detect disease or genetic markers (e.g., forconditions such as sickle cell trait, breast cancer, Huntington's disease);

• blood pressure screening and cholesterol testing;

Disability Laws• Application to the Hiring Process: Medical Examinations

• nerve conduction tests (i.e., tests that screen for possible nerve damage and susceptibility to injury, such as carpaltunnel syndrome);

• range-of-motion tests that measure muscle strength and motor function;

• pulmonary function tests (i.e., tests that measure the capacity of the lungs to hold air and to move air in and out);

• psychological tests that are designed to identify a mental disorder or impairment; and,

• diagnostic procedures such as x-rays, computerized axial tomography (CAT) scans, and magnetic resonance imaging(MRI).

Disability Laws

• Application to the Hiring Process: Medical Examinations do not include:

• tests to determine the current illegal use of drugs;

• physical agility tests, which measure an employee's ability to perform actual orsimulated job tasks, and physical fitness tests, which measure an employee'sperformance of physical tasks, such as running or lifting, as long as these tests do notinclude examinations that could be considered medical (e.g., measuring heart rate orblood pressure);

• tests that evaluate an employee's ability to read labels or distinguish objects as part of ademonstration of the ability to perform actual job functions;

• psychological tests that measure personality traits such as honesty, preferences, andhabits; and,

• polygraph examinations.

Disability Laws•Application to current employees:

• At the third stage - after employment begins- an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.

Disability Laws• Application to current employees:

• Generally, a disability-related inquiry or medical examination of anemployee may be "job-related and consistent with businessnecessity" when an employer has a reasonable belief, based onobjective evidence, that:

• an employee's ability to perform essential job functions will be impaired by a medical condition;

• an employee will pose a direct threat due to a medical condition; or• follows up on a request for reasonable accommodation when the disability or need for

accommodation is not known or obvious


Example A:

For the past two months, Sally, a tax auditor for a federalgovernment agency, has done a third fewer audits than the averageemployee in her unit. She also has made numerous mistakes inassessing whether taxpayers provided appropriate documentationfor claimed deductions. When questioned about her poorperformance, Sally tells her supervisor that the medication she takesfor her lupus makes her lethargic and unable to concentrate.


Example A: Answer

Based on Sally's explanation for her performance problems, the agency has areasonable belief that her ability to perform the essential functions of her job willbe impaired because of a medical condition. Sally's supervisor, therefore, maymake disability-related inquiries (e.g. ,ask her whether she is taking a newmedication and how long the medication's side effects are expected to last), or thesupervisor may ask Sally to provide documentation from her health care providerexplaining the effects of the medication on Sally's ability to perform her job.

Disability Laws

• Application to current employees:

Example B:

A crane operator works at construction sites hoisting concrete panels weighingseveral tons. A rigger on the ground helps him load the panels, and severalother workers help him position them. During a break, the crane operatorappears to become light-headed, has to sit down abruptly, and seems to havesome difficulty catching his breath. In response to a question from hissupervisor about whether he is feeling all right, the crane operator says thatthis has happened to him a few times during the past several months, but hedoes not know why.

Disability Laws

• Application to current employees:

Example B: Answer

The employer has a reasonable belief, based on objective evidence, that theemployee will pose a direct threat and, therefore, may require the craneoperator to have a medical examination to ascertain whether the symptoms heis experiencing make him unfit to perform his job. To ensure that it receivessufficient information to make this determination, the employer may want toprovide the doctor who does the examination with a description of theemployee's duties, including any physical qualification standards, and requirethat the employee provide documentation of his ability to work following theexamination.

Disability Laws

•Application to current employees:

Example C:

Six months ago, a supervisor heard a secretary tell her co-worker that she discovered a lump in her breast and is afraidthat she may have breast cancer. Since that conversation,the secretary still comes to work every day and performs herduties in her normal efficient manner.


Example C: Answer

In this case, the employer does not have a reasonable belief, basedon objective evidence, either that the secretary's ability to performher essential job functions will be impaired by a medical conditionor that she will pose a direct threat due to a medical condition. Theemployer, therefore, may not make any disability-related inquiriesor require the employee to submit to a medical examination.


Example D:

A supervisor notices that the quality of work from an ordinarily outstanding employee hasdeteriorated over the past several months. Specifically, the employee requires more time tocomplete routine reports, which frequently are submitted late and contain numerous errors.The supervisor also has observed during this period of time that the employee appears to besquinting to see her computer monitor, is holding printed material close to her face to read it,and takes frequent breaks during which she sometimes is seen rubbing her eyes. Concernedabout the employee's declining performance, which appears to be due to a medical condition,the supervisor tells her to go see the company doctor, but she does not.


Example D: Answer

Any discipline that the employer decides to impose should focus on the employee's performance problems. Thus, the employer may discipline the employee for past and future performance problems in accordance with a uniformly applied policy.

Disability Laws

• Application to the current employee – Reasonable Accommodations

• A “reasonable accommodation” is a change in work environment or theway in which things are customarily done that allows a disabledemployee the opportunity to successfully perform the employee’sposition and to enjoy equal employment opportunities.

Disability Laws• Application to current employees – Reasonable Accommodations

• Making existing facilities accessible.

• Job restructuring/reallocation of certain job functions.

• Temporary and possibly permanent part-time or modified work schedules.

• Acquiring or modifying equipment.

• Changing tests, training materials, or policies.

Disability Laws

• Application to current employees – Reasonable Accommodations

• Providing qualified readers or interpreters.

• Reassignment to a vacant position.

• Extended, unpaid leave of absence (even beyond FMLA entitlements).

• Temporary “forbearance” of attendance and performance issues.

• Work at home requests.

Disability Laws• Application to current employees – Reasonable Accommodations do not

include:

• Longer-term lowering of job standards (performance/attendance).

• Bumping another employee out of a job.

• Repeatedly excusing prohibited behavior on the job.

• Indefinite or long-term leaves of absence.

Disability Laws

• Application to current employees – Reasonable Accommodations do not include:

• Hiring additional employees to assist or perform part of the job.

• Transferring a light duty job reserved for worker’s comp injuries into a regular job.

• Creating a new position.

Disability Laws

•Application to current employees – Request for Accommodation

• There are no formal requirements for disability accommodation requests.

• Requests can be verbal or in writing.

• An employee need not mention disability laws or use term “reasonableaccommodation” in making a request. There is no magic language required.

Disability Laws

• Application to current employees – Request for Accommodation

• Generally, employers should not proactively ask whether an employee has adisability or whether an accommodation is needed.

• When an employee is struggling in some aspect of job performance, the employershould focus on the job performance and leave it to the employee to raise anyhealth issues.

• However, if the employee has a known disability which is suspected of causingworkplace issues, the employer may want to initiate the “interactive process.”

Disability Laws

•Application to current employees – Interactive Process

• A request for accommodation triggers the interactive process: a discussion andexchange of information to establish the need for accommodation and to identifyappropriate reasonable accommodation(s).

Disability Laws

• Application to current employees – Interactive Process

• The employer may ask relevant questions, including what kind of accommodation isneeded.

• The employer must not ignore or fail to follow up on the employee’s requests foraccommodation.

• Unless the disability is obvious, the employer can request information from theemployee’s health care provider about the nature of the disability, the functionallimitations caused by the disability, and what reasonable accommodations might exist.

Disability Laws

• Application to current employees – Interactive Process

• Employers must pursue the interactive process in good faith, making anindividualized inquiry and assessment for each situation.

• An accommodation cannot be categorically ruled out as unreasonable. Insight andcreativity may be necessary to devise an appropriate solution.

• Employers must play an active role in identifying potential available positions for adisability employee; simply advising the employee to review posted positions is notenough.

Disability Laws

• Wisconsin

• Broader rights than the ADA are afforded to employees under the

Wisconsin Fair Employment Act

• Definition of disability is broader, but the ADAAA has narrowed this.

• Wisconsin does not use essential function analysis. Employers may

have to restructure some jobs.

• Damages are more limited than the ADA.

Discipline •What standard applies?

1. At-will

2. Employment Contracts

3. Employee Handbooks

4. Union Contract/Grievance Policy

5. Discrimination Laws

6. “Just Cause” Factors

Discipline • Just Cause factors

1. Was there a rule/policy/expectation in place and made known to the employee?

2. Was that rule/policy/expectation violated or not met?

3. Has the rule/policy/expectation been enforced uniformly?

4. Does the discipline match the nature of the offense?

5. Has the discipline been handed out uniformly?

Discipline

•Documentation

1. Documentation should be made at the time of the events at issue if possible.

2. Documentation should stick to the objective facts.

3. Documentation should be shared with employee.

4. Documentation should not be over-done with respect to an employee’sperformance.

Discipline

• Job Performance Issues

a. Specific evidence of performance problems.

b. Evidence that the problems have been discussed with the employee and thatthe employee clearly understood performance expectations.

c. Evidence that the employee was given an adequate opportunity to improveperformance.

d. Evidence that performance standards have been applied consistently tosimilarly situated employees.

Discipline •Misconduct Issues

a. Evidence that the misconduct was something the employee would haveknown to be wrong.

b. Evidence that the work rule or standard was clearly communicated to theemployee.

c. Documentation of the investigation.

d. Evidence that standards of conduct have been applied consistently tosimilarly situated employees.

Discipline

• Open Records – Philosophy

• Access to information about the affairs of government is essential to arepresentative government.

• Law favors complete public access.

• Access should be denied only in exceptional cases.

Open Records/Meetings

•Open Records - What is a record?

• Anything recorded or preserved.

• Created or being kept by an authority.

• Includes tapes, films, charts, photographs, computerprintouts, e-mails, etc.



• Open Records – What’s not a record.

• Drafts and preliminary documents.

• Published material available for sale or at the library.

• Purely personal property.

• Material with limited access due to copyright, patent or bequest.


•Open Records – Who can request.

• Any person except an incarcerated person.

• Requester can be anonymous.

• No reason for request need be given.


•Open Records – How is a request made?

• Can be oral or written.

• If written then,

Denial must also be in writing; and

Must state that denial is subject to court review.

Open Records/Meetings•Open Records - Responding

• Designate a legal custodian

• Post information on obtaining records

• Respond ASAP (w/in 10 days)

• An arbitrary denial may result in punitive damages and a $1,000 forfeiture


• Does a record exist? If the record exists, then you must decide to deny or grantrequest.

• Is disclosure required?

• Is disclosure prohibited?

• Balancing test:

• Whether the harm caused by releasing the record is greater than the harmcaused to the public interest in withholding the record


• Privileges

• Exceptions to the Open Meetings Law

• Confidentiality Agreements

• Personnel Matters

Open Records/Meetings•Open Records – Responding

• Reason for denial must be specific.

• Cannot state a mere conclusion.

• Even if request falls in an exemption category, must still “balance.”

Open Records/Meetings•Open Records – Notification

• Generally, only employees of authorities must be given notice,and only in certain circumstances.

• 3 Categories of public employee-related records:

• Records that may be released after balancing, without notice.

• Records that may be released only after balancing and notice.

• Records that may not be released.

Open Records/Meetings•Open Records – Notice – When Required

• Records relating to disciplinary investigations

• Records obtained by subpoena or search warrant

• Records prepared by an employer other than an authority

Open Records/Meetings• Open Records – Notice – Protected Information

• Employee’s home address, e-mail & phone; social securitynumber

• Information relating to pending investigation of criminaloffense or possible misconduct

• Information relating to employment exam, other than score

• Employee-specific management information --performanceevaluations, bonuses, etc.

Open Records/Meetings•Open Records

• Public office holders are entitled to notice, opportunity tosupplement record

• “Local public office” is ill-defined – attempts to convey the ideathat a person who occupies an upper level governmentalposition and exercises broad policymaking discretion is a localpublic office holder.

• Posted notice must identify public offices.

Open Records/Meetings•Open Records – Notification

• If custodian decides to grant access to employee record:

• Notify record subject within 3 business days of decision, usually by certified mail;

• Record subject has 5 business days after receipt of notice to notify employer in writingof intent to seek court review;

• Record subject has 10 business days after receipt of the notice to go to court; and

• Record custodian must wait 12 business days before providing access.

Open Records/Meetings•Open Meetings – Philosophy

• Citizens are entitled to the greatest possible informationregarding the affairs of government and the official acts ofthose officers who represent them.

• All meetings of all state and local governmental bodies shall bepublicly held in place reasonable accessible to members of thepublic and shall be open to all citizens at all times unlessotherwise expressly provided by law.

Open Records/Meetings• Open Meetings – What is a “meeting”

• Applies to “Governmental Bodies”

• State or local agencies, boards or commissions

• Governmental or quasi-governmental corporations

• Subunits

• State legislature


•Open Meetings – What is not a “meeting”

• Offices held by single individual.• Bodies meeting for collective bargaining, except for the

first meeting.• Bodies created by the Supreme Court.• Ad hoc gatherings.


•Open Meetings – When does it apply?• Convening

• “For the purpose of exercising the responsibilities,authority, power or duties delegated to or vested in thebody”

• Majority attendance creates a presumption that themeeting is for the purpose of exercising these duties.

• Negative Quorum/Walking Quorum

Open Records/Meetings•Open Meetings – Requirements

• Where• What must be disclosed?• When?• Held in open session


• Open Meetings – Closed Session

• Deliberating.• Dismissal, demotion, licensing or discipline of any public employee.• Considering employment, promotion, compensation or

performance evaluation data of any public employee.• Deliberating or negotiating the purchasing of public properties, the

investing of public funds, or conducting other specified publicbusiness, whenever competitive or bargaining reasons require aclosed session.

Open Records/Meetings• Open Meetings – Closed Session

• Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where par. (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations.

• Conferring with legal counsel for purposes of litigation.

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