Employment Issues
1. Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) was enacted in 1990. The Act prohibits discrimination in employment against qualified persons who have a disability. The ADA also prohibits discrimination against persons with disabilities in State and local government services, public accommodations, transportation, and telecommunications. TBR Policy 5:01:02:00, Equal Opportunity, Affirmative Action, Discrimination and Nepotism, deals with, among other issues, compliance with the ADA at TBR Institutions.
Under the ADA, a person has a disability if he or she has a physical or mental impairment that substantially limits a major life activity. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working.
An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected under the ADA. This means that the applicant or employee must satisfy the job requirements (education, experience, skills, licenses, etc.) and must be able to perform those tasks which are essential to the job, with or without reasonable accommodation.
Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy the benefits and privileges of employment equal to those enjoyed by employees without disabilities. It is a violation of the ADA if an employer fails to provide reasonable accommodation to a known physical or mental limitation of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of the employer's business.
Undue hardship means that the accommodation would require significant difficulty or expense. Among the factors to be considered in determining whether an accommodation is an undue hardship are cost of the accommodation, the employer's size, financial resources and the nature and structure of its operation. If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. The employer must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.
The ADA does not interfere with an employer's right to hire the best qualified candidate. Nor does the ADA impose any affirmative action obligations. The ADA simply prohibits an employer from discriminating against a qualified applicant or employee because of his or her disability.
More questions? Check out the ADA Questions and Answers page.
2. Family Medical Leave Act (FMLA)
The Family Medical Leave Act became effective in August, 1993 for most employers. The Act provides covered employees with up to twelve weeks of unpaid, job-protected leave for specific family and medical reasons. TBR Policy 5:01:01:14, Family and Medical Leave, defines how the TBR implements the FMLA. In general, TBR employees who both 1) have been an employee of the State for a total of at least twelve months and 2) have actually worked at least 1250 hours during the preceding twelve month period are covered by the Act. Leave is granted for the following reasons:
for the birth and care of a newborn child of the employee;
for placement with the employee of a son or daughter for adoption or foster care;
to care for an immediate family member (spouse, child, or parent) with a serious health condition; or,
to take medical leave when the employee is unable to work because of a serious health condition.
A "serious health condition" means an illness, injury, impairment or physical or mental condition that involves either:
a) any period of incapacity or treatment connected with inpatient care in a hospital; or
b) continuing treatment by a health care provider which included any period of incapacity due to:
1) A health condition lasting more than three consecutive days, with treatment two or more times by a health care provider, or one treatment by a health care provider with a continuing regimen of treatment; or,
2) Pregnancy or prenatal care; or
3) A chronic serious health condition, requiring periodic visits to a health care provider; or
4) A permanent or long-term condition for which treatment may not be effective, requiring the supervision of a health care provider; or
5) Any absences to receive multiple tratements for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated.
A covered employer is required to maintain group health care insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken. An employee on leave continues to be responsible for his or her share of insurance premiums during the period of leave. An employee who does not to return to work following the leave period will have to repay the TBR for insurance payments made on the employee's behalf during the leave period, unless the failure to return to work is the result of a) continuation, recurrence, or onset of a serious health condition of the employee or an immediate family member, or b) other circumstances beyond the employee's control.
Upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
Other questions? See our FMLA Questions and Answers page.
3. Sexual Harassment
Employees are protected against sexual harassment under Title VII of the Civil Rights Act of 1964. Students are protected against sexual harassment under Title IX of the Education Amendments of 1972. The Equal Employment Opportunity Commission has defined sexual harassment as:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when 1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or 2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or 3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
"Quid pro quo" sexual harassment occurs when a person with authority makes academic or employment decisions contingent upon sexual favors (elements 1 and 2 of the above definition).
"Hostile environment" sexual harassment occurs when there is unwelcome sexual conduct which limits a student's ability to benefit from an educational activity or limits an employee's ability to perform their job.
TBR Guideline P-080, Harassment - Sexual or Racial, provides information regarding how the Tennessee Board of Regents implements its prohibition against sexual harassment.
Please see our Sexual Harassment Questions and Answers page.
Page last modified: August 9, 2001