Under the Americans with Disabilities Act, protected individuals are those who suffer from a significant impairment of a major life activity, or who are regarded as or have a record of suffering from such impairment.  The question of what constitutes a major life activity has vexed federal courts.  In its Williams v. Toyota Mfg. case, the U.S. Supreme Court said that in most cases, major life activities will not involve work, but rather consist of daily life activities, such as walking, speaking, eating, and the ability to care for oneself.  Earlier this month, the District of Columbia Court of Appeals concluded that the ability to have sexual relations is also a major life activity.


In Adams v. Rice, the plaintiff was a State Department employee who sought an overseas posting.  The State Department declined to allow her to serve overseas in certain countries because she was a breast cancer survivor, and the Department was concerned about the ability to provide follow-up medical care in developing countries.  The plaintiff asserted that she was cancer-free, and sued under the Rehabilitation Act (this law applies to federal employers and contractors, and is interpreted the same as the ADA).


The trial court rejected the plaintiff’s claim, finding that she was not a qualified person with a disability as defined under the law.  That court concluded that the plaintiff had no current medical issue, was not regarded as disabled by the State Department, and had no record of an impairment because her cancer surgery and recovery involved only several weeks.  The D.C. Circuit reversed, concluding that the plaintiff had a record of an impairment of a major life activity.


In drawing this conclusion, the D.C. Circuit pointed to testimony from the plaintiff describing the impact of the surgery and follow-up care on her libido and sex life.  She noted a fear of rejection based upon the surgery, as well as the side effects of anti-estrogen medication used as follow-up treatment.  The court had no problem classifying sexual activity as a major life activity, even if the purpose of the activity is not related to reproduction.  The fact that the employer had no idea of the plaintiff’s sexual impairment at the time it made its decision is irrelevant to the question of coverage under the law.


The above article originally appeared on the Employment Law Alliance site http://www.employmentlawalliance.com/en/node/2406.


Expanded definitions of coverage under the ADA, makes it more important than ever for employers to consult with employment law specialists prior to making employment decisions that involve workers who may or may not be covered.  Although an employee may not come right out and say that they are experiencing problems in the sexual arena, there are so many conditions that can have this effect such as depression (even a mild case), hysterectomy, anxiety, stress, high blood pressure or certain medications just to name a few.


If you are facing a tricky employee discipline or termination, call today for a free consultation.  816-858-7300.



According to a Gallup Poll, 51% of workers in the U.S. feel that they are underpaid!

The poll found that 51 percent of workers claimed they are underpaid for the work they do, compared with 46 percent of workers who say they are paid about the right amount for the work they do.

Three percent of workers admitted that they think they are overpaid for the work they do.

Among those who earn less than $75,000, 62 percent of respondents said they are underpaid, compared with 38 percent of workers who earn $75,000 or more.

Women (55 percent) were more likely than men (47 percent) to say they are underpaid for the work they do. Gallup conducted the poll via telephone with 557 full-time and part-time workers. Source: Gallup Poll.

How is your workforce doing?? If your workforce is less than fully engaged, People Wise (www.pwhrm) can help. It has been shown time and time again that “salary” is not the biggest motivator for most employees. Some of the biggest pushers for employee engagment are clear expectations and goals, an environment of continuous learning, and individual recognition. Many programs that foster these, can be put in place with very little investment.

Employee Training, Leadership Training, Employee Assessments, and Team Building Activities are all great ways to boost Employee Morale!

Solutions can be found today on www.pwhrm.com or by calling 816-858-7300!

Gen Y – Success or Bust

August 11, 2008

What is happening to the workforce?  Where’s the work ethic?  Doesn’t any body want to work? If you are like most business leaders and owners I work with, you’ve no doubt noticed a trend in the way the “younger” employees have been behaving in recent years. Most likely, you consider it a negative trend; too much entitlement, not enough loyalty, no work ethic, only interested in them self, and not willing to make a sacrifice. 


Unless you live in total isolation, you have heard of and recognize this segment of the workforce is known as Generation Y.  Bottom line, this group has been in the workforce long enough to understand, and have key priorities identified.  Research by numerous groups and individuals has resulted in a consistent top three things this segment is looking for from an employer; a positive environment, interesting work, and probably the most important: the opportunity for continuous learning. 


Considering the cost of turnover — which is dependent on the source and position being filled, three months wages to 200% of an annual salary; ouch — there are retention strategies that make sense.  As a Human Resource Management and Organizational Behavior Consultant, I tell you, give them what they want! 


Before you shoot me or discredit my perspective, consider the options and return on investment. 


Positive Environment – How is this achieved?  Clearly defined duties, candid and timely feedback documented in a formal evaluation or appraisal process, recognition, and reward for their efforts.  The cost associated with these items is far less that three months wages. 


Interesting Work – This is perhaps the most difficult of the three considerations to address.  Making of widgets falls slightly short of rocket science or 3-D computer programming.  However, if the right person is selected using job fit job match and professionally developed hiring assessment, success is achievable.  Also, employee retention and productivity will be the result when the other considerations are achieved. 


Continuous Learning – Creating an opportunity for continuous learning through training and development programs has more potential today than at any time in the past.  Online training programs are affordable and offer quality content in a wide variety of topics.  Taking advantage of this type of resource is also an excellent risk mitigation strategy.  Due diligence and good faith efforts in such areas as harassment prevention and diversity carry validity or recognition by various government and state agencies. 


Reducing turnover by 20% or a couple employees per year, along with increased productivity from tenure and experience will add significantly to the company’s customer satisfaction, success, and profits.  Consider the adage; you have to spend money to make money.  Invest in your most valuable asset, your human capital, and watch the returns. 

Kevin Robinson is the President and Senior Consultant for People Wise, a Kansas City based Human Resource Management Consulting and Solutions Firm.  In addition, Kevin is an instructor of Graduate and Undergraduate courses in Human Resource Management,  www.pwhrm.com