Denise Lowell-Britt, an attorney, gave a presentation to school administrators on various employment law topics. She discussed a teacher's request for breaks and a private space to express breastmilk under pregnancy discrimination laws. She also covered requirements to reasonably accommodate disabilities under the ADA, such as a teacher with a vision impairment struggling with website accessibility. The presentation concluded with discussions of religious accommodation, social media implicating fraud, rights of transgender employees, and weapons policies.

1. Presenter: Denise Lowell-Britt, Esq.
October 24, 2014 School Personnel Administrators

2. Pregnancy Discrimination
Teacher Nancy Nurser had a baby in July and returns to work in September. She wants to continue nursing. She asks her Principal to allow her breaks and a private location in which to express milk.

3. Pregnancy Discrimination
Aside from protections under Title VII, female employees who are breastfeeding also have rights under other laws.
This issue and many, others are addressed in recent EEOC Guidance.

4. Pregnancy Discrimination
July 14, 2014: The EEOC published a 51 page document entitled, “EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues”.
http://www.eeoc.gov/laws/guidance/pregnancy_ guidance.cfm

5. ADA Awareness
Teacher Connie Conks-Out has been sleeping during professional development sessions and classes with her high school freshman students. She has self-identified as having a sleep disorder.
The Principal has issued a Letter of Reprimand, after previously warning Connie numerous times via email.

6. ADA Awareness
All supervisors in the District MUST recognize that the Americans with Disabilities Act (ADA) is likely implicated when an employee’s misconduct appears related to his/her disability.

7. JAN: ADA Support & Guidance
•See attachments to this handout.
•Job Accommodation Network (JAN) can provide valuable information regarding the ADA and ideas for “reasonable accommodation” for many different disabilities.

8. Vehicle Cell Phone Use On the Job
You are driving to the District office and you pass one of your maintenance workers driving in a District truck (driving to a school). You note that the worker is talking on his cell phone. Is this a problem?

9. Vehicle Cell Phone Use on the Job
•Jan 3, 2012: U.S. Dept. of Transportation prohibits drivers of commercial motor vehicles from using handheld mobile phones.
•In any situation, the District can be held vicariously liable for “distracted drivers” who cause injury/death to others.

10. Vehicle Cell Phone Use on the Job
•If the employee is driving a personal vehicle and using a personal cell phone and his/her supervisor texts or calls about a work matter, the District can be held liable for resulting injury or death from car accident caused by the distracted employee.

11. Website Accessibility
Ellory Enright is a talented and popular 9th grade teacher. He has a vision impairment, which has worsened this year. Like all teachers in the school, he is required to maintain a teacher website. He complains to you that he cannot see the website clearly or fully access the website, even when content is enlarged.

12. Website Accessibility
•ADA Implications specific to teacher: Conduct an interactive meeting with the employee and develop an accommodation plan.
•Section 504: The District must provide employees & the public access to information that is comparable to access afforded non- disabled individuals.

13. Website Accessibility
•OCR: The District must makes its website and all intranet pages accessible by removing barriers that prevent access by persons with disabilities.
•OCR is investigating several complaints on this issue in Arizona!

14. Website Accessibility
A widely accepted standard for accessibility is Web Content Accessibility Guidelines 2.0 (WCAG 2.0), Level AA.
See http://www.w3.org/WAI/intro/wcag
for more information.

15. Religious Accommodation
•You are interviewing for a new school receptionist. An applicant with stellar qualifications arrives for an interview. She is wearing a headscarf and makes it known that she wears it for religious reasons. You are concerned about the “reception” she will get from parents and some staff if hired. What do you do?

16. Religious Accommodation
EEOC’s definition of religious practice:
•Traditional religious beliefs, moral & ethical beliefs and beliefs individuals hold with the strength of traditional religious views.
•Something more than just a sincerely held belief.

17. Religious Accommodation
Reasonable accommodation is required unless the accommodation causes undue hardship on the employer.

18. Religious Accommodation
•The District cannot deny the applicant employment on the basis that she will want to wear a headscarf.
•The District will need to accommodate the individual’s headscarf unless it has a dress code that is justified by business necessity (not applicable in this example).

19. Religious Accommodation
Example of “business necessity” in dress code matters:
•The employee will work with dangerous machinery where clothing could get caught in equipment.
•Flowing hair could result in health/safety risk (i.e. cafeteria worker).

20. Religious Accommodation
Options for reasonable accommodation regarding religious holidays or need to adjust work hours for religious reasons include (but are not limited to):
•Flexible arrival/departure times.
•Floating or optional holidays.
•Flexible work breaks.

21. Religious Accommodation
•Staggered work hours.
•Make up of lost time.
•Substitute workers.
•Exchange of hours.
•Change in job assignments.
•Job transfers.

22. Social Media Implicates Employee Fraud
Franny Funn requests FMLA leave for a back injury she says is work related. However, another employee reports that Franny has posted photos on Facebook showing her parasailing and playing tennis while on leave. What can you do?

23. Social Media Implicates Employee Fraud
•Ask the employee who reported the posting to print hard copies of the photos/postings.
•Remember that social media sites can be manipulated and falsified.
•Provide the employee at issue with a chance to respond before taking any action!

24. Transgendered Employees
Paul was hired in 2010 as a history teacher in your high school. At the end of the 2012-2013 school year, Paul tells you he is going through hormone therapy and will be transitioning in the coming year to become a female. What rights does Paul have?

25. Transgendered Employees
EEOC (April 2012):
Employment discrimination based on an individual’s gender identity, change of sex, and/or transgender status is a form of sex discrimination that violates Title VII (relying on Macy v. Holder ).

26. Transgendered Employees
EEOC:
Although Title VII does not explicitly include sexual orientation or gender identity, such discrimination is unlawful because it occurs when an individual does not conform to traditional gender stereotypes.

27. Transgendered Employees
Practice tips:
•Recognize the liability risks associated with discrimination based upon transgender status.
•Review non-discrimination policies; consider including gender identity & sex stereotyping as “protected” categories.

28. Transgendered Employees
•Consult with the transgendered employee regarding preference for pronouns.
•Review dress codes to make them gender neutral; they should not be based upon stereotypes or gender expectations.

29. Transgendered Employees
•Consider the employee’s gender presentation and identity as you make decisions about rest room access.
•Involve the employee in deciding how to notify others to set expectations re: non- discrimination and respect and to encourage their support.

30. Weapons at Work
Teacher Gunnar Wesson lets the Principal know that he intends to start bringing a gun to school this coming school year, in light of national tragedies that have occurred.

31. Weapons at Work
What the District CAN do:
•Prohibit the employee from bringing a firearm into the school.
•Prohibit the employee from carrying the firearm on his/her person on District property.
•Require the employee to keep the firearm unloaded and in the employee’s locked and privately owned vehicle or a locked compartment w/in the vehicle and require that the firearm not be visible from the outside of the vehicle.

32. Weapons at Work
What the District CAN do:
•Prohibit the employee from keeping his/her firearm in a District owned/leased vehicle.
•Report the employee to law enforcement for violations – it is a crime to possess a weapon in violation of law.
•Enforce the District’s Policies & Regulations – See, ASBA Policy GBEB-R, Staff Conduct

33. Weapons at Work
Review relevant Arizona laws:
- A.R.S. 12-781
- A.R.S. 13-3102
- A.R.S. 13-3108

34. Disclaimer
This presentation and related handout is for informative purposes only and should not be used in place of legal advice.

35. Denise Lowell-Britt
UDALL SHUMWAY PLC
1138 North Alma School Road, Suite 101
Mesa, Arizona 85201
dlb@udallshumway.com | 480-461-5333
www.udallshumway.com
4189618.1