An increasing number of companies are offering wellness programs in areas including: physical fitness; nutrition; preventative care, such as immunizations; smoking cessation; and Employee Assistance Program (EAP). Some employers even offer financial incentives or bonuses for healthy habits.

But for one company, the quest for healthy employees ended with a judgment in federal court.

Earlier this week the EEOC ordered a Maryland health magazine to furnish monetary and other relief as settlement to a disability discrimination lawsuit.

According to the suit filed against Professional Media Corporation, trading as Your Health magazine, the company had a policy requiring employees to sign a “health warranty” guaranteeing their health and certifying that they did not use any medications. The EEOC’s suit further charged that the company harassed and later unlawfully fired an employee who had Attention Deficit Hyperactivity Disorder (ADHD) and Auditory Processing Disorder (ADP).

Conduct such as that alleged in this suit is a violation of the ADA (Americans with Disabilities Act) which makes it unlawful to discriminate against a qualified individual with a disability and furthermore does not allow employers to ask job applicants or employees about the existence, nature or severity of a disability.

The EEOC filed suit after pre-litigation settlement attempts were unsuccessful and Professional Media Corporation has been ordered to pay $58,000 to the fired employee, must discontinue its “health warranty” policy, and a three-year injunction with continuing jurisdiction provisions has been established to enable the EEOC to continue monitoring the company’s compliance with the ADA.

According to Spencer H. Lewis, Jr. director of the EEOC’s Philadelphia District Office, “this case shows that employers continue to make employment decisions based on uniformed prejudices and irrational fears.”

Debra M. Lawrence, an EEOC regional attorney, adds, “Employees with disabilities must be treated with the same dignity and respect as all other members of the work force. The EEOC will continue to enforce the ADA to protect the rights of disabled employees and applicants.”

While wellness programs and incentives can be beneficial to both employers and employees, companies should ensure that any programs or policies are compliant with regulations such as discrimination law.

In this week’s installment of The Proactive Employer podcast, we’ll be discussing the lawsuit and the broader issues of employing disabled individuals with Michael Bailey. Mr. Bailey is the Chair of the Board of Directors of the National Disability Rights Network (NDRN) in Washington, DC.

NDRN is a leading voice for the rights of Americans with disabilities. It works to secure support for disability rights advocacy and to keep federal laws for people with disabilities robust. NDRN works with funding agencies and state systems to assure that public resources are used effectively to protect and advocate the rights of individuals with disabilities.

The podcast will air on BlogTalkRadio at 8:30 AM this Friday and will available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes.

In his post “This Chart Shows Why Unemployment Is Terrifying For Older People”, BusinessInsider Deputy Editor Gus Lubin presents the following chart and draws two conclusions:

1. Older workers have higher standards;
2. Employers prefer younger workers.

Interestingly, the permalink of his post is entitled “This Chart Gives Definitive Proof of Age Discrimination In America”. Clearly the chart does no such thing.

Here’s the comment I left at BusinessInsider regarding this article:

I am very surprised – and very disappointed – at the level of simplistic thinking expressed in this post. Gus looks at the chart, sees that older individuals are more likely to experience longer periods of unemployment, and jumps to the conclusions that (a) older people have higher standards and (b) employers prefer younger workers. Neither of these conclusions is supported by the data.

Presumably Gus is assuming that the duration of unemployment for older individuals is higher because they’re holding out for higher paying jobs, and therefore have higher standards. Nowhere in this chart is there any information about job level, nature of position sought, number of job offers turned down for salary, level of responsibility / position within the organization, etc. 

Even more problematic, however, is the false conclusion that the duration of unemployment for older individuals is longer because of age discrimination. Contrary to the post’s permalink, this chart does NOT “give definitive proof of age discrimination in America.” There are a variety of factors that explain why the duration of unemployment differs by age, as some other readers have commented. Aside from level of position, salary grade, etc., older people may be unemployed for longer periods because of skills mismatch, unwillingness to relocate, etc.

Unfortunately, this is not the only example of someone looking at a data set, noticing a difference between two groups based on a simplistic analysis, and automatically inferring that the difference is caused by discrimination. In some cases, this leap to automatically inferring discrimination is caused by ignorance. In other cases it may be intentional to advance policy positions, personal agendas, or to create sensationalized headlines. Either way, it is irresponsible and does nothing to advance the discussion of (un)employment and equal rights.

Shame on BusinessInsider for publishing this!

What do you think? Is there a general misunderstanding of statistics – and the scientific method in general, or is it just an attempt to get readers and website hits with sensational headlines?

A recent study concluded that in matters of employment attractive males had an advantage overall but being an attractive female was a disadvantage in many professions. The study showed that attractive women faced discrimination and beauty was detrimental when applying for traditionally male positions, though good looks were beneficial when seeking employment in traditionally female positions.

But once you land that position or promotion it’s no longer a factor, right? Maybe not.

Debrahlee Lorenzana found that to be the case when she made national news regarding the issue. In 2010, Lorenzana sued her employer, Citibank, for banning her from wearing clothes that they deemed acceptable and permissible for other women in the office to wear.  Among the forbidden items: turtlenecks, pencil skirts and “Zara” business suits.

Citibank supposedly claimed that due to her body type her clothing was “distracting” and she was ordered to wear something to obscure her figure. Lorenzana, a banker, felt she was fully compliant with the Citibank dress code and was quick to point out that her female peers wore far more revealing attire. As stated in the lawsuit, Lorenzana was fired after she allegedly complained of disparate treatment.

Appearance bias is nothing new. Back in the 1970s the issue was recognized as a result of activism on behalf of obese individuals and Michigan became the first state to prohibit discrimination based on weight and height. The EEOC now takes the view that extreme obesity, and obesity resulting in other physical conditions is in fact a disability, and discrimination based on such obesity is prohibited under the Americans with Disabilities Act (ADA).

Since federal and state laws do not specifically prohibit bias based on appearance, cases of appearance discrimination have to fit into one or more protected categories under federal and state anti-discrimination laws, which allows it to continue occurring in many instances.

An increase in issues may arise as a result of publicized research that such bias exists and should employers allow appearance-based discrimination to continue within the workplace, legal action will most likely ensue without the need for any new legislation. Since women are most often the subject of such bias, discrimination against the full-figured, unsightly or beautiful woman based on appearance can be deemed illegal as a form of sex discrimination.

To avoid discrimination and its backlash, employers should establish and enforce clear guidelines applying to all employees to ensure that performance and ability are the key factor in employment and that their companies are hiring and retaining the most qualified employees regardless of appearance.

Gender pay equity is an important issue, and I think we can all agree that everyone – irrespective of gender, race, age, sexual orientation, religious affiliation, etc. – deserves equal pay for equal work. But the Paycheck Fairness Act is not the magic bullet that will put a permanent end to pay discrimination.

As Gerald Maatman predicted last October, the decrease of $7.3 million in the EEOC’s budget would mean shifting tactics and strategies toward claims of systemic discrimination. It would appear as though this prediction has come to pass.

In its draft strategic plan for the next four years, the EEOC has vowed to continue its focus on cases involving systemic discrimination. Claims of a pattern or practice of alleged discrimination has been an enforcement priority since 2006, but will constitute a larger percentage of the EEOC’s enforcement efforts going forward. The EEOC has received nearly 100,000 individual charges of discrimination annually, which has “created a need for the EEOC to think strategically about how best to target its efforts to ensure the strongest and broadest impact possible in its efforts to stop unlawful employment discrimination.”

Individual claims of discrimination will still play a role in the agency’s enforcement efforts. According to the Plan, “[e]ven as the EEOC gradually increases its percentage of these cases, it will continue to pursue individual cases of discrimination. Strategic selection of individual cases furthers the agency’s statutory mandate of preventing unlawful employment discrimination.”

As if there weren’t enough choices already, there’s a new kind of rewards program that’s beginning to get some notice. It’s called viral pay, and the emphasis is on tapping in to the relationships between individuals.

Could a viral compensation plan work for your organization? To help us understand how these plans work, we’re joined this morning by Ann Bares. Ann is Managing Partner of Altura Consulting Group, LLC. She has over 20 years of experience consulting in the areas of compensation and performance management. Through her consulting practice, Ann works with a wide range of client organizations in auditing, designing an implementing executive compensation plans, base salary structures, incentive compensation programs, sales compensation plans, and performance management systems. She is a frequent speaker to industry and professional groups, and has authored numerous articles on the topics of compensation and performance management. Ann is the author of the blog Compensation Force and is the Editor of Compensation Café.

The podcast will air on BlogTalkRadio at 8:30 AM this Friday and will available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes.

Sheltered workshops or “work-activity programs” are facilities funded by state and local agencies and nonprofit groups to provide the disabled with jobs. Workers perform basic unskilled labor such as packaging or simple assembly and most often are paid less than minimum wage.

Intended to be “stepping stones” to lucrative jobs in the competitive labor market, the workshops have recently come under fire from critics who believe that the disabled are being segregated and exploited and further suggest that the sheltered work environment creates stereotypes that the disabled are incompetent and incapable of succeeding at “real” jobs.

The class-action suit filed on Wednesday on behalf of the Oregon Chapter of the Cerebral Palsy Association and eight individuals with intellectual and developmental disabilities is the first of its kind in any state, according to National Disability Rights Network President, Michael Bailey.

Bailey says the federal suit was filed in Portland because Oregon once led the nation in providing vocational training services that helped integrate developmentally disabled workers into community-based jobs earning minimum wage or better.

However, the suit claims that since the mid-1990s, “Oregon has reversed course, increasing its reliance on segregated workshops while simultaneously decreasing its development and use of supported employment services,” and that Oregon’s “over-reliance on sheltered workshops and its failure to timely develop and adequately fund integrated employment services” violates protections against discrimination under the ADA and Rehabilitation Act.

The plaintiff class in the case could potentially include several thousand individuals of various mental and physical disabilities who are qualified for integrated employment or programs to transition them to mainstream jobs.

At present, more than 2,300 disabled persons are segregated in sheltered workshops in Oregon at any one time. The suit alleges, they are “stuck in long-term dead-end facilities that offer virtually no interaction with non-disabled peers; do not provide any pathway to integrated employment; and provide compensation well below minimum wage.”  It further notes that back in 1988, half those people received state support in making the transition to mainstream work environments offering competitive wages but by 2010, that number had dropped to less than a quarter.

The Oregon Department of Justice counters the claim and issued a statement that the state of Oregon was working “to improve its services to the developmentally disabled, including assistance with employment opportunities for the disabled in the broader community.” It went on to say that the latest effort involved a “stakeholder planning process” and that both the United Cerebral Palsy Association and Disability Rights Oregon, whose lawyers filed the suit, had been invited to participate.

Wednesday’s lawsuit comes a year after the National Disability Rights Network published a scathing critique of sheltered workshops, saying they “have replaced institutions in many states as the new warehousing system and are the new favored locations where people with disabilities are sent to occupy their days.” The report asserted that “segregated and sheltered work keeps people with disabilities in the shadows.”

The eight named plaintiffs and the plaintiff class in the suit are seeking injunctive and declaratory relief for supposed ongoing violation of the ADA and Rehabilitation Act. Additionally, an order is being sought to end needless segregation in sheltered workshops and to provide the individuals with supported employment services to allow them to participate in competitive employment in integrated settings.

In this week’s installment, we’ll be talking about conversations – how to have them, how to be better at them, and how to handle the difficult ones.

The podcast will air on BlogTalkRadio at 8:30 AM this Friday and will available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes.

In this week’s installment of The Proactive Employer Podcast, we’ll be talking about document retention policies. We’ll highlight the importance of having a policy, and provide a run-down on IRS and Department of Labor retention requirements for some common HR and payroll documentation.

The podcast will air on BlogTalkRadio at 8:30 AM this Friday and will available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes.