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What else does the pink bow stand for? Breast cancer discrimination
http://www.businessmanagementdaily.com/articles/15175/1/What-else-does-the-pink-bow-stand-for-Breast-cancer-discrimination/Page1.html
Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments. 
By Mindy Chapman, Esq., Mindy Chapman & Associates
Published on 10/30/2008 - 10:00am
 
October is breast cancer awareness month. And he statistical chances of having female employees with breast cancer (or who are survivors of breast cancer) are high. One court says you’d better not discriminate against women with breast cancer or get ready to write a check with a pink pen …
October is breast cancer awareness month. After skin cancer, breast cancer is the most common form of cancer in women in the United States, affecting one in four women.

And, since, hopefully, most organizations employ women by now, the statistical chances of having female employees with breast cancer (or who are survivors of breast cancer) are high. One court says you’d better not discriminate against women with breast cancer or get ready to write a check with a pink pen …

CASE IN POINT: Jean Mayer worked for 12 years for an electronic parts company before she was diagnosed with breast cancer. Following that event, she returned to work on a part-time basis. Her doctor placed her on a strict lifting restriction—up to three pounds maximum. Soon after, Mayer transferred to another facility but her lifting restrictions weren’t honored there. For the next 13 months, she transitioned through various jobs. One supervisor offered to help with her lifting responsibilities but frequently wasn’t available to assist.

As an accommodation, Mayer requested a transfer to a job that didn’t violate her lifting restrictions. The VP of distributions responded by warning her “to be careful and stop complaining.” The company eventually moved Mayer to a data-entry position that required no lifting. The job did require her to input data into a computer positioned above shoulder level, a difficult arrangement for someone with her medical history. When Mayer explained the problem to her supervisor he allegedly replied: “The doctor didn't say anything about something being wrong with [your] legs.”

The company eventually transferred Mayer to another position but soon fired her for “disruptive behavior,” saying she didn’t get along with managers and co-workers. Prior to the firing, Mayer was never written up for disruptive behavior or counseled about problems with her work or relationships.

Mayer filed an EEOC charge and sued under the Americans with Disabilities Act (ADA), alleging discrimination, retaliation, failure to accommodate and harassment based on hostile environment. (The ADA prohibits discrimination against qualified individuals who can perform the essential functions of the job with or without a reasonable accommodation. A new law that takes effect Jan. 1, 2009 will broaden the definition of “disability” under the law.)

The company denied her claims in court, arguing that it fired Mayer because she was having a negative impact on the company morale. (Mayer v. Future Elecs. GP Corp., S.D. Miss., No. 2:07-CV-46, 10/15/08). 

What happened next…and what lessons can be learned?

The court gave Mayer the pink light to go forward, sending her ADA and retaliation case to a jury trial. The court noted that the two supervisors’ negative comments about her requests for accommodations were evidence of their animus towards her disability.

Also, the court underscored that the company failed to follow its own progressive disciplinary policy, which requires a step-by-step approach to discipline. It said that “since the defendants terminated [Mayer] without formal written warnings or write-ups, a jury could infer that defendant's reason was a pretext for discrimination.”

3 Lessons Learned…Without Going to Court

1. Resist the urge to make comments. So often, managers and supervisors make off-the-cuff comments about protected situations—such as disabilities and medical leaves—purely out of frustration. But courts pay close attention to everything muttered under your breath and they’ll use it as evidence of discrimination.

2. Get ready for Jan. 1, 2009. The ADA is an employee-friendly law and it just got even friendlier with the passage of the new amendments. Read more about the new law at TheHRSpecialist.com.

3. Progressive disciplinary policies must be followed … or changed. Claims of discrimination are easily made when a company fails to follow its own blueprint for discipline. If you don’t want to be locked into a step-by-step formulaic progressive disciplinary process, then institute a disciplinary policy that offers various types of discipline as a guideline but reserves the right to select action based on the circumstances.