Is Your Website Compatible for the Visually Impaired? The lawsuits are emerging!

September 24, 2018

Yes, there are several car dealerships on the east coast being sued because their websites are a violation of the American with Disabilities Act. You are reading this correctly and this issue can spread very quickly to other industries and other states. Here are the facts of this case but understand, this is an issue that can easily spread to other industries.

The basis of the lawsuit is the dealership operated its business in a manner and way that effectively excludes individuals who are visually impaired from access to the dealership’s business. In other words, the consumer in question was not able to visually see the vehicles offered by the dealership. This included color, features, pricing, make and model. The plaintiff’s argument is that the business did not have a website compatible with “Open Access” which permitted Open Access members to be able to “view” its website. Businesses, to be compatible, need to have “screen reader software” which permits the visually impaired to be able to obtain the information (products & services) offered by the business.

My research on this issue is that the website has to be built on an HTML system (I am not an IT person) which then permits the visually impaired consumer’s “Screen Reader” software to access the website. However, there is a secondary issue. The website must have text that is readable. A picture of a car, as an example, cannot be “read.” The Screen Reader must be able to read words describing the car, the price, the features, the colors, the product or services. It really is a two-step process of sorts.

The other specific allegations listed in the complaint are as follows:

  1. The website is not designed with consideration for “Universal” design so the visually impaired individuals who use screen reader software can access the website;
  2. Defendant’s website does not have the sign of website accessibility;
  3. Defendant has not provided any auxiliary aid or service which would assist plaintiff;
  4. Defendant has not initiated an ADA policy for effective communication to ensure full and equal use of their business by individuals with disabilities;
  5. Defendant had not designed an employee as an “Accessibility Coordinator” to ensure full and equal use of its electronic documents and website by individuals with disabilities;
  6. Defendant has not created and instituted a “Specialized Customer Assistance Line,” nor service or email contact mode for customer assistance for the visually impaired;
  7. Defendant has not offered any form of electronic documents in an accessible format for blind or visually impaired individuals.

Businesses that are dealing directly with the public offering their products and services to the general public need to take a close look at their websites to insure they are in compliance with the ADA requirements for the visually impaired. Another thought. As a business do you offer online employment applications? Could the issue presented above spread this far? Who knows!

Note: This is not an “employment” related article. It is a consumer/business offering and any assistance requested will be under James W. Potts, LLC. This includes writing policies & procedures and Americans with Disabilities (ADA) training only. If you desire assistance email me at paaerrep@aol.com or call the office at 626-396-1070.

 

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Building Trust as a Manager!

September 17, 2018

Managers have to build trust with their team! I came across some tips I thought were very good and wanted to share the information?

  1. Be humble; not charismatic. It is natural that we are attracted to people whom we perceive to be inspiring, fun, and engaging. It makes sense that you need a little charisma or pizzazz to stand out from others and get noticed. Charisma can also be useful for engaging and inspiring others towards the organizational mission. However, too much of this may be a bad thing in the eyes of your team members. Unchecked charisma will lead to a reputation of self-absorption and self-promotion. When team members get the sense that you are focused on your own concerns and ideas, they feel unsupported. The team may start to worry that you will no longer do what is best for the team or organization, and that you will instead do what is best for your own agenda.
  1. Be steady and dependable; it will get you further. While you may have been noticed and promoted based on your charisma, being reliable, rule-following, and responsible is more important for your team. As a leader, you have a tremendous amount of autonomy and decision-making power. If we are to entrust our leaders with such power, we need to be confident in their ability to remain true to their word and to do what’s right for the organization. Showing your team that you exercise caution, take calculated risks, and will adhere to organizational principles will go a long way toward gaining their trust.
  1. Remember that modesty is the best policy. At times, we may all enjoy working in an environment that is less formal, or working for a boss who knows how to keep things light-hearted. However, there is still a degree of responsibility and professionalism that people come to expect from those in charge. Trying to be liked and known as “the fun boss” can tarnish your reputation in the long run. It’s OK to stay out of the limelight and keep some space between you and your team. It sends signals that you are there for their professional benefit and that they can rely on you when needed.
  1. Balance analysis with action. Although people appreciate a degree of logic and rationality in the decision-making process, be careful to not get so focused on data and analysis that you forget the larger context or the impact of your decisions. Spending too much time analyzing data can hold you back from making important decisions, especially in high-pressure situations that call for quick action. The data may indicate the best course of action for the bottom line, but this may not be the best decision for the broader team or relevant stakeholders. Leadership must be able to make a decision and take corrective action quickly, even if it initially hurts the bottom line.
  1. Be vigilant; vulnerability increases over time. Learning and adjusting to a new role, especially a high-visibility leadership role, can take some time. It’s during the first few months in a new role that we usually spend more time observing what’s going on around us. We also tend to be more mindful of our interactions with others and may spend more time managing the impressions we make on others. Over time, we become more comfortable in our surroundings and we stop paying attention to our reputations. It’s usually after the six-month mark where we see an increased risk of our dark-side tendencies impeding our success or derailing our careers. Keep your guard up, stay vigilant, and continually seek feedback.

The personality characteristics that will get you chosen as a leader are not always the same as the ones that will make you effective in that role. Spending too much time trying to get noticed or having a “win at all costs” mentality to get ahead can put you (and your team) at a higher risk of engaging in unethical behavior. Having awareness of your surroundings and an understanding of the ways you influence your team will help to keep yourself (and your team) on track.

Very shortly we will be offering a “Leadership Conference” which will offer six different topics for the day. Attendees will have an option for half day or full day participation. Information will be sent within the week.

 


Polygraph Testing: The Do’s and Don’ts!

September 11, 2018

We get a fair amount of calls regarding whether or not an employer can conduct polygraph tests on employees. More recently, lie detector tests, have been all over the news. The federal law that regulates their use in the workplace is the “Employee Polygraph Protection Act of 1988”.

For private-sector employers the EPPA imposes strict prohibitions on the use of any device to render a diagnostic opinion as to the honesty or dishonesty of an individual.

It prohibits employers from:

  • Requiring, requesting, suggesting, or causing an employee or prospective employee to take or submit to any lie detector test.
  • Using, accepting, referring to, or inquiring about the results of any lie detector test of an employee or prospective employee.
  • Discharging, disciplining, discriminating against, denying employment or promotion, or threatening to take any such action against an employee or prospective employee for refusing to take a test, on the basis of the results of a test, for filing a complaint, for testifying in any proceeding, or for exercising any rights afforded by the EPPA.

Despite these strict prohibitions, there are limited exceptions when an employer can administer a polygraph test (but not other forms of lie detector tests).

One exception covers prospective employees of armored car and other similar security companies. Another covers prospective employees of companies that manufacture controlled substances.

Of more general application to most employers, the third exception covers employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation. Thus, an employer who reasonably believes that an employee has stolen is able to administer a polygraph to confirm the employee’s culpability.

Even if this exception applies, employers cannot use polygraphs carte blanche. There are certain key limits on their administration:

  • Prior to the polygraph examination, the employer must provide to the to-be-examined employee a written notice
    • explaining the employee’s rights and the limitations imposed, including the prohibited areas of questioning, restrictions on the use of test results, and the employee’s right to file a complaint with the Department of Labor alleging violations of EPPA;
    • explaining the specific incident or activity being investigated and the basis for the employer’s reasonable suspicion of the employee’s involvement;
    • reasonably describing the date, time, and place of the examination and the employee’s right to consult with legal counsel or an employee representative before each phase of the test; and
    • describing the nature and characteristics of the polygraph instrument and examination.
  • The employee can refuse to take a test, terminate a test at any time, or decline to take a test because of a medical condition.
  • The results of a test alone cannot be disclosed to anyone other than the employer or employee without their consent.
  • The polygraph examiner must be licensed, and bonded or insured. Also, the examination is subject to strict conduct standards.

Employers that violate the EPPA are subject to a civil money penalty of $20,521 per violation, in addition to legal and equitable relief such as lost wages and reinstatement, and, in the case of a private civil lawsuit, reasonable costs and attorneys’ fees.

Polygraph examinations provide employers a powerful tool to confirm and confront employee certain limited employee issues. Employers must carefully follow the EPPA’s requirements so that a slam dunk termination does not turn into a sure-fire lawsuit for the employee.

There it is!


Court Says Profanity “May Not Necessarily Create a Hostile Work Environment!”

September 4, 2018

Over the years that I have facilitated sexual harassment seminars, I have been asked whether or not profanity  in the workplace creates a hostile work environment.  First, let’s be clear, in my opinion; “There is no room for such unprofessional behavior. in the business setting.”  Ok, my opinion is one thing but  how do the courts view it? Does such language create a “hostile work environment” under federal anti-discrimination law? Or, could that kind of language be protected speech”

One Court of Appeals differentiated between different types of profanity. Interesting thought, but let’s take a closer look at what the Court said.

“We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”

The court’s decision focused on the difference between profanity of the general type, which it calls “general, indiscriminate vulgarity” (presumably, words like “sh**”), and “gender-specific, derogatory comments made about women on account of their sex.”

The court said in that case, that there was ample evidence that, as one of two female workers, the Plaintiff overheard coworkers used such gender-specific language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Indeed, the court said that her male co-workers referred to individuals in the workplace as “bitch,” “f**king bitch,” “f**king whore,” “crack whore,” and “c**t.”

And thus begins a discussion of profanity that hasn’t often been seen in the court system.

[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “f**king” would contribute to a hostile work environment. “F**king” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “f**king” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “f**k” and “f**king” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….

The court then focused on the notion that what is important to decide if conduct is “severe or pervasive” to create a work environment is the entirety of the situation.

Words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “c**ts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

The court opined that “Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.”

But what if the workplace just had a lot of profanity you say?

Then, the court says that might not be enough. “If the environment portrayed by the Plaintiff had just involved a generally vulgar workplace whose indiscriminate insults and sexually-laden conversation did not focus on the gender of the victim, we would face a very different case. However, a substantial portion of the words and conduct alleged in this case may reasonably be read as gender-specific, derogatory, and humiliating.”

For employers, the case is a reminder than a hostile work environment need not have pornography in the workplace to satisfy the standard; words can be enough depending on the context and the pervasiveness of it.  Employers should be mindful that profanity in the workplace — particularly when it is sexually-laden and directed at or around others — can have serious legal ramifications.

One last point: The employer here argued that the environment existed before the employee joined too and that it was not, therefore, directed to the Plaintiff.  The court easily dismissed that argument.   Once the Plaintiff entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that the Plaintiff had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.”

Well, there it is! The question as been answered and clearly the Courts are not going to put up with language as noted above. Put out the policies regarding the use of such language and enforce them.