In April 2014, the Sixth Circuit, in EEOC v. Ford Motor Co., decided that telecommuting may be a reasonable accommodation under the ADA, even if the employer’s business judgment dictates otherwise. The court reversed a grant of summary judgment to Ford on the EEOC’s claim that Ford failed to accommodate an employee’s irritable bowel syndrome (“IBS”) by refusing to let her telecommute most days. However, in September 2014, the court agreed to reconsider that decision, vacating its April 2014 decision and restoring the case to the docket as a pending appeal.
Allowing employees to take FMLA leave is good for employees, it’s good for families, and, of course, it’s required by law. But what if you have an employee who takes FMLA leave when nothing seems to be wrong? For example, you could have an employee who reports that he is taking FMLA leave every time his request for a specific vacation day is turned down. Certainly, you don’t have to allow an employee to take the day off just because the employee has suddenly decided to say that it is FMLA leave, right?
Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities. Recently, the spotlight on Title IX has zeroed in on sexual violence in schools. The month of April saw a lot of activity in this area with the U.S. Department of Education, Office of Civil Rights issuing a Q&A on the subject. Additionally, the White House issued its first report of the White House Task Force to Protect Students From Sexual Assault, and launched notalone.gov, a website designed to educate students, parents, educators, and schools on ways to deal with sexual violence. Congress is also in on the action, having recently amended the Clery Act via the Violence Against Women Act, requiring reporting on additional campus crimes and proposing further amendments at the end of July.
For educational institutions, the duties they have towards students under these laws are evolving quickly. Of course, that makes staying on top of the changes challenging. The keys to compliance will be training and updating policies. With regard to training, you need to know who your “Responsible Employees” are under the law. Responsible Employees are the folks at your institution whose knowledge of sexual misconduct can be imputed to the institution. They include any employee (1) who has the authority to redress sexual violence or harassment, (2) who has been given the duty of reporting incidents of sexual violence or other misconduct to the Title IX Coordinator or other appropriate school designee, or (3) whom a student could reasonably believe has this authority or duty. Your policies should define who these individuals will be, and it’s important that they get some very specific training on their responsibilities (detailed below).
Here are the basics of what your policies and training should do:
- Define the following terms: sexual harassment, sexual violence, domestic violence, dating violence, and stalking
- Prohibit dating violence, domestic violence, and stalking
- Disseminate a Notice of Nondiscrimination
- Designate a Title IX Coordinator with contact information
- Establish grievance procedures for prompt, equitable resolution of complaints
- Define who the Responsible Employees are
- Identify who can accept confidential reports of sexual misconduct
- Train Responsible Employees to:
- Inform students before they reveal information they may wish to keep confidential of their duty to report certain information to the Title IX coordinator
- Inform students who may accept confidential reports
- Inform students of their option to ask the school to maintain confidentiality
- Inform students of their right to file a Title IX complaint with the school and to report the crime to campus or local law enforcement
- Provide students with information regarding campus resources for assistance
- Provide students with information regarding off-campus resources for assistance
- Discuss safety issues
- Prohibit retaliation against anyone participating in the process
These are just the basics, which already represents a tall order. What I’ve noticed in talking with educators and students is that the practicalities of the situation make compliance challenging. One educator asked me, “how am I to interrupt a sobbing student to let her know that I can’t keep her confidences if she tells me she was assaulted?” The law seeks to protect victims as much as possible, but the reality comes across uncaring because there’s a list of information you have to provide to a traumatized student. Certainly, additional training in how to deal with victims of sexual assault could be helpful to your Responsible Employees.
Highlighting another problem was a Resident Assistant who asked: “Some of these people are my friends. Are you telling me that if someone comes to me as a friend and says she was assaulted, I have to tell on her?” The answer was “yes.” In my view, the fact that some students are Responsible Employees for institutions of higher learning is particularly fraught with compliance dangers. Not only are these students asked to remember a litany of information, they must report on their friends and live in conditions where they may be subjected to retaliation from the alleged perpetrator and his or her friends for making legally-required reports. Clearly, the disincentives of reporting from the front lines are significant.
As I mentioned, all of this is only the tip of the iceberg. Talk to your counsel for legal advice. Talk to your abuse crisis counselors for assistance with the psychological aspects of Title IX. Talk to each other. And don’t hesitate to drop me a line here with your own views on the new Title IX, either.
Employers tend to like certain aspects of arbitration. Often it provides a faster and more economical resolution to a dispute than litigation. Parties can represent themselves, without the need for counsel, before an impartial decision maker chosen by them. Most arbitrators have some level of experience or expertise in the subject matter of the controversy they will be deciding. Courts and juries generally will have no such experience. Employers also believe that an arbitrator’s economic self interest, the desire to be selected for future cases, will prevent an arbitrator from entering a “runaway jury” size adverse award significantly beyond the actual, documented losses and, where appropriate, prevailing party attorney fees.