The increase in charges can be attributed to a number of factors, but two that stand out are:
- employees have become more willing to file charges against employers, and
- areas of dispute have expanded, including social media, privacy, work-related celebrations, alleged discrimination based on issues such as disabilities and religion, and the lack of accommodations made for such issues.
Laws that prohibit discrimination against employees and job applicants tend to require reasonable accommodations. In the case of disability, the employer should engage in what is referred to as an "interactive process." The purpose of the process is to work collaboratively on an ongoing basis to meet the business needs of the employer while making a reasonable accommodation for the employee. Accommodations are made on a case-by-case basis, depending on the disability, the type of work performed, the size of the employer, and the workload.
"Each situation is unique," said Emily Franchi, CAMICO loss prevention specialist for employment practices. "While an accommodation might be considered reasonable for one firm, another firm might consider it an 'undue hardship.' However, the EEOC looks at the financial stability or profitability of the employer, as well as the cost of the accommodation, when determining whether it creates an undue hardship."
A similar approach is taken toward employers making reasonable accommodations for religious belief or observance, depending on state law, including religious dress and grooming practices as well as observances of a Sabbath or other religious holy days. Segregating the employee from the public or other employees is not considered a reasonable accommodation under some state laws.
In one case where the employer refused to make an accommodation for religious dress practices, the employee was awarded more than $287,000 in damages. When determining whether a reasonable accommodation would impose an undue hardship on the employer, certain factors are considered, such as the size of the employer, the number of employees, the size of the budget, the nature and cost of the accommodation, and available alternatives.
Some states also require reasonable amounts of break time and an adequate private place for mothers to express breast milk. Failure to do so may be considered discrimination on the basis of gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth.
Employer firms should consult with legal counsel or their risk advisor before taking any action that might violate employee privacy or other rights.
Firms that have an Employment Practices Liability insurance policy with CAMICO have access to human resources consulting services and resources, unlimited telephone and email consulting services, online resources, available HR management policies, procedures and forms, employee handbooks, and educational opportunities on HR topics.
Employment Practices Issues in Today’s Workplace
In this video, Emily Franchi, CAMICO loss prevention specialist for employment practices, highlights the diversity of today’s workplace, which includes multiple generations, religions, cultures and sexual orientations. She provides some tips for CPAs when dealing with these ever-evolving challenges. Click here to view the CAMICO video!