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The question has been posed, ? What characteristics of employees, other than those explicitly covered by the Americans with Disabilities Act, can employers consider when hiring, firing, or promoting employees? ? . This is a question that has become critical to answer, as ADA claims exceeded 91, 000 in number between 1992 and 1997. Of these claims, the agency discovered reasonable cause to believe that discrimination occurred in only 3. 1 % of the cases.
Many of these claims were built on seemingly weak foundations. Actual cases of discrimination have been brought (and denied) on claims of disability due to myopia, body odor, infertility, and? anxiety brought on by admonishment from a supervisor. ? Considering the costs of defending oneself against a claim, how likely are firms to capitulate to the specter of impropriety? Put another way, even if a firm believes that a candidate for hiring or promotion is not qualified for advancement, is the possibility of the candidate raising issue under the ADA enough to scare the company into selecting them?
This question becomes even more convoluted when the malady in question is a legitimately recognized disability, but is itself an offshoot of some other syndrome. The PMS Defense Pre-menstrual syndrome (PMS) affects nearly all women at some point during their reproductive years. Fifty percent of women suffer from PMS regularly throughout their lives, and as many as 10 % of women seek medical help to alleviate the symptoms of PMS. While the question of whether or not PMS is disabling is a contestable topic, the symptoms of PMS are widely accepted as having a debilitating effect on one? s life functions. These symptoms range from headaches and insomnia to irritability and fatigue and their negative affect on one?
s ability to work at peak performance seems to be a reasonable inference. You will have to search under many rocks to find a company that will discriminate against a candidate on the basis of her suffering from PMS. But it seems reasonable for a company to consider factors such as ability to get along with other employees, attendance record, and consistency of performance when determining (as one example) which candidate to promote to a managerial position. The underlying biology of PMS gives credence to claims of it as a disability. While there are some? corrective steps?
women can take to mitigate the effects of PMS (such as a well balanced diet or vitamin supplements or other medical intervention), there is little to nothing that can be done to do away with PMS altogether. PMS is caused by a drop in progesterone levels or an increase in estrogen levels at a relatively predictable period during a woman? s menstrual cycle. Implications for employers PMS has successfully been used as a defense in a criminal case in at least one incident. A Virginia state court accepted a woman? s claim that PMS caused her to?
become intoxicated more easily? and justified her hostility towards a Virginia State Trooper who had pulled her over for erratic driving. Her lawyer successfully argued that her PMS had caused her to become? more irritable and hostile than other people? . Lets assume for a moment that this is a reasonable ruling by the Virginia court, and PMS can be considered a disability protected by the ADA. What are the implications for employers?
What are the? reasonable accommodations? an employer might be expected to take to ensure a fair environment? To illustrate the difficulty of this situation, let? s consider an industry where human interaction is the predominant responsibility, such as a retail establishment. The primary responsibility of a retail establishment, such as a restaurant or hotel, is customer service.
The fundamental requirement of customer service is pleasant human interaction. In order for an individual to represent a company well, employees must maintain a professional demeanor throughout their dealings with the customer. If a woman suffering from PMS is more likely to be impatient or hostile with a customer, does an employer have the right to consider that? In this environment where the most basic duty of the job requires interaction, moving the employee to a? back-office? job might be considered onerous and unreasonable.
There may not be a back office job available that fits the particular skill set of the woman in question. In a service environment like a restaurant, absences can have more severe implications for a company than in other industries. The duties of an absent waitress in a restaurant cannot merely be shelved until the next time she can come in. In an office setting, it might be reasonable for the company to let the woman take work home or make up for it by working an extra shift. If a woman? s bouts with PMS have such a debilitating effect on her that she is absent two to three days a month, then the context of her employment may be scrutinized to determine what kinds of reasonable accommodations may be made for her.
If PMS is determined to be a disability, then the real danger is if an employer? regards the employee 34 d
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