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Thursday, December 14, 2023

Florida Legislator Wants To Make It Illegal To Say Gay (Or Your Pronouns) At Work

Florida seems to be in a race with Texas and some other red states to see which can be the worst state for employees in the nation. Now a legislator has proposed a law (which will likely pass, because GOP be cray cray) that would be similar to the now-infamous Don't Say Gay bill but apply to workplaces. 

Some gems from this ridiculous-but-likely-to-become-law bill include:

Training is illegal: It would be illegal to provide training that included issues of gender expression, gender identity, or sexual orientation.

Pronouns are illegal: It would be illegal to discuss your preferred pronouns or for your employer to tell anyone else your preferred pronouns.

Misgendering is legal: It would be illegal for an employer to punish coworkers for deliberate misgendering.

This idiotic law would apply to state employees and nonprofits. So nonprofits that cater to the LGBTQ community would not be able to train employees, discuss pronouns, or punish employees for deliberate misgendering of trans people, including their clients. 

As I said, Florida is likely to pass this law, and our governor will, of course, sign it. So brace yourselves.

The good news is that LGBTQ discrimination is illegal under Title VII, so I'm sure there will be litigation over this. The Supremes are the ones that said Title VII applies to sexual orientation and societal expectations regarding gender roles. Will they reverse themselves? Very possibly.

Vote well friends. Vote blue in every single election if you want the crazy train to stop.

Thursday, December 7, 2023

Have A Visual Disability: EEOC Issues Guidance On Your Workplace Rights

 EEOC has issued a guidance to assist workers with visual disabilities regarding their workplace rights. This guidance discusses:

  • when an employer may ask an applicant or employee questions about a vision impairment and how an employer should treat voluntary disclosures;
  • what types of reasonable accommodations applicants or employees with visual disabilities may need;
  • how an employer should handle safety concerns about applicants and employees with visual disabilities; and
  • how an employer can ensure that no employee is harassed because of a visual disability.
Who is covered: EEOC says this about coverage for visual disabilities under the Americans With Disabilities Act
Under the first prong of the ADA’s definition of disability, an individual with a vision impairment who is substantially limited in seeing or in the major bodily function of using special sense organs (here, the eyes), has an “actual disability.” Under the second prong of the ADA’s definition of disability, an individual with a history of an impairment that substantially limits a major life activity—even if the impairment no longer exists—is considered to have a “record of” a disability. An applicant or employee may have a “record of” a disability, for example, when the individual’s substantially limiting vision impairment has been corrected surgically.

Whether an impairment “substantially limits” a major life activity is not meant to be a demanding standard. A vision impairment does not need to “prevent, or significantly or severely restrict,” an individual’s ability to see in order to be a disability, as long as the individual’s vision is substantially limited when compared to the vision of most people in the general population. Further, a determination of disability must ignore the positive effects of mitigating measures (other than “ordinary eyeglasses or contact lenses”) that an individual uses. For example, mitigating measures may include the use of low-vision devices that magnify, enhance, or otherwise augment a visual image. An individual with a vision impairment who uses low-vision devices will be substantially limited in seeing compared to most people in the general population who can see without the use of such devices. Another type of mitigating measure is the use of learned behavioral modifications (for example, an individual with monocular vision may turn their head from side to side to compensate for the lack of peripheral vision). An individual with monocular vision, regardless of such compensating behaviors, will be substantially limited in seeing compared to most people in the general population. An individual who is blind should easily be found to have an “actual disability” under the ADA, because they are substantially limited in the major life activity of seeing.

While using glasses or contacts isn't a covered disability, many other vision impairments are covered. Employers can't ask about your vision pre-hiring. They can ask, however, if you can perform the duties of the job with or without accommodations. If you can perform the job with accommodations, the answer is yes. You don't have to disclose the accommodations before being hired. After hiring, they can ask about what the accommodations are in order to determine whether they are reasonable.

Under the ADA, the period after offering an applicant a job but before the individual starts working is called the “post-offer period” and the job offer may be subject to an applicant’s responses to medical questions and/or passing a medical exam. This means, when an applicant discloses after receiving a conditional job offer but before starting work that the applicant has or had a vision impairment, the employer may ask the applicant additional questions, such as:how long the applicant has had the vision impairment;
what, if any, vision the applicant has;
what specific visual limitations the applicant experiences; and
what, if any, reasonable accommodations the applicant may need to perform the job.

After obtaining basic medical information from all applicants, an employer may follow up with an individual who has disclosed a vision impairment, or the extent of a vision impairment, to seek additional information, if additional questions or a requested medical examination is medically related to the information already received. An employer may ask this individual to answer questions specifically designed to assess the applicant’s ability to perform the job’s functions safely.

An employer may not withdraw an offer from an applicant with a vision impairment if the individual is able to perform the essential functions of the job, with or without reasonable accommodation. If the employer has concerns that the applicant’s vision impairment may create a safety risk in the workplace, the employer may conduct an individualized assessment to evaluate whether the individual’s impairment poses a direct threat (that is, a significant risk of substantial harm to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation).

There are many types of accommodations that are considered reasonable. EEOC gives many examples in this guidance that will be a good reference if you are seeking accommodations.

There is a wide range of possible changes in the application process, or in the way an employee performs the work, that can serve as reasonable accommodations for individuals with vision impairments. These can include, for example: assistive technology (such as text-to-speech software); accessible materials (such as braille or large print); modification of workplace/employer policies or procedures (such as allowing the use of guide dogs in the work area), testing (such as allowing alternative testing), or training; ambient adjustments (such as brighter office lights); sighted assistance or services (such as a qualified reader);or other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

In general, employers must accommodate disabilities in the workplace, including visual disabilities. This guidance will be an important source of information to individuals with visual disabilities in the workplace.