Although Alfred E. Newman is a fictional character from Mad Magazine, his approach of “What, me worry?” is one that HR professionals should emulate.  Although employers and employees do some of the darnedest things, regardless of the advice and counsel of HR, there is no need to stress out over this stuff.  That is…as long as some common sense is applied...

An applicant was given a conditional job offer pending the outcome of a prescreen drug test at U. S. Steel.  However, the applicant was of the Nazirite sect of the Hebrew Israelite faith, and he sincerely believed that the Old Testament forbids him from cutting hair from his scalp.  So when he went to get the drug screen, he declined to have a lock of his hair cut starting at the scalp.  A nurse had advised him that the hair for testing could come from his head or beard, and the applicant pulled hair from his beard, and offered to cut a lock of his hair starting in the middle.  But before the test was conducted, he was sent home.  Claiming that the applicant "has more hair than Solomon," the hiring supervisor accused him of having "created a negative scene" at the clinic in an email sent to other supervisors.  The job offer was rescinded and so was the opportunity to interview for other jobs at U.S. Steel. 

If U.S. Steel had just taken the hair sample for testing, everything would have been fine.  Yet the supervisor’s actions and U.S. Steel’s concession that hair "samples may be taken from the subject's beard, underarm or chest if sufficient quantity and length of the hair is available," cost the company $150,000.

In another hair case, J.B. Hunt Transport, Inc., agreed to pay $260,000 to settle another failure to accommodate drug testing.  Four East Indian Sikh applicants refused to provide a hair sample for the company’s drug testing policy because their religion requires the maintenance of uncut hair.  They requested an alternative to the hair drug test.  The request was denied. 

On the other hand, there was an applicant who suffers from end stage renal disease and receives hemodialysis treatment.  She received a written job offer; however, it was “contingent upon successful completion of a pre-employment drug screening.” The problem was that she couldn’t provide a urine sample – the company’s preferred method for these tests.  She offered instead to provide a hair or blood sample.  The company said no.  The decision not to use an alternative method cost the company $35,000.

Sometimes it’s the employee who pushes the envelope.  A university employee, who suffered from epileptic seizures, disliked her supervisor and requested a new accommodation to avoid the stress from the supervisor.  Utilizing the ADA, the employee requested a multi-pronged accommodation for her epilepsy including, but not limited to, a request that the supervisor “cease his hostile confrontations” and that either the university “sensitize” the supervisor as to his dealings with women with epilepsy or move the supervisor out of her chain of command.   The court did not agree that a reasonable accommodation extends to providing an “aggravation-free” or “peaceful calm” environment, especially when the issue revolved around personality conflicts.

In another instance, an employee claimed that he was fired without the employer providing an accommodation for his disability: hypersensitivity to electromagnetic voltage.  The employee was a desk clerk at a Travelodge hotel and was caught on video sleeping during a fight that broke out among guests in the lobby.  He claimed that the hotel’s neon signs aggravated his disability.   Sleeping on the job, he claimed, is a normal response to hypersensitivity to electromagnetic voltage. The court didn’t buy this one and dismissed the case.

Even lawyers are not immune.  Chadbourne & Parke in Washington, D.C., expelled from its partnership a female partner who filed a $100 million gender discrimination suit against the firm.   Maybe they should have waited until the lawsuit was settled?

How many times do HR professionals feel like they’re kindergarten teachers, trying to maintain order with a bunch of six year olds?  The takeaway is that employers and employees all do things that are questionable, and no matter the time, advice and counsel HR gives, you can lead a horse to water but cannot make it drink.  What, me worry?

Source: FIsherBroyles LLP 4/17/17, EEOC 11/15/16, 8/11/16, Jackson Lewis 4/14/17, Bradley Arant Boult Cummings LLP 4/17/17, Law.com 4/20/17