EEOC TO MANAGERS: “ZIP IT!—CAN YOU HEAR ME NOW?”
MEMBER ALERT! In October, FEDSMILL.com published an article entitled, “EEOC To Managers: Zip It!” It was about various laws that prohibit managers from discussing publicly what they know about an employee’s medical or mental disability. We made the point that a comment is public if made to anyone (or a group) without a legitimate need to know, or where it can be overheard by folks without a need to know. We reprint that article below, but precede it with the latest case in this line of law.
This new case (Price v. U.S. Postal Service, Appeal No. 0120090342 (9/29/11)) began when the employee, Danny Price, was outside smoking a cigarette with a group of three coworkers. His supervisor approached him and publicly scolded him for smoking while having heart disease. The supervisor also asked if Price’s doctor knew that he smoked. Until that moment, none of his co-workers knew about his heart disease. Price had recently requested a reasonable accommodation for his heart disease that prevented him from mowing the lawn at the facility.
In 2008, EEOC found that disclosure of Prince’s medical information in front of other vioalted the Rehabilitation Act and recently it settled the question of whether the employee should be compensated for this disclosure. Its new decision began with a reminder that employees victimized by a disclosure may be compensated for past and future pecuniary losses (i.e.. out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this “make whole” relief, up to $300,000 per incident.
It then reminded this employer that evidence from a health care provider or other expert is not required to prove one is entitled to damages for emotional harm, but that “statements from others including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown Based on the evidence Price submitted EEOC gave him $2,000 and ordered the agency to consider disciplining the supervisor.
So, once again, managers are reminded to “Zip it” when it comes to information about an employee’s medical or mental disabilities. If you or a friend has suffered from similar treatment, contact your local union. It can not only represent you before EEOC, but in most cases bypass EEOC by filing a grievance and going to arbitration.
(Pass this article on to anyone who think might find it helpful.)
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Reprinted From 10/05/11: EEOC TO MANAGERS: “ZIP IT!”
Loose lips not only sink ships, but they also violate employee rights. EEOC issued two decisions recently where it could not have made it clearer that managers are not to talk about employee EEO complaints. In Cattero v. U.S. Postal Service (EEOC OFO 08/12/11) EEOC caught a manager talking to an employee’s co-workers about a discrimination complaint the employee had filed. EEOC said that when managers talk about employee complaints with those who have no need to know that is reasonably likely to deter employees from filing their own complaints—and that violates the law.
In Cruz v. U.S. Postal Service (EEOC OFO 07/21/11) the manager disclosed to one employee information she had obtained by reading another employee’s confidential medical information. More specifically, the supervisor revealed that the employee was being treated by a psychiatrist and was diagnosed with a nervous condition. From the facts, it could be argued that the supervisor was trying to warn the employee not to provoke the employee with the diagnosed condition because for a potential for violence. However, EEOC reminded the supervisor that only those employees with a tangible “need to know” may be given this information. That’s the rule whether the manager is sharing it with bargaining unit employees or even other management officials. Unless they have a verifiable need to know, they cannot be given the information.
In both cases EEOC remanded the cases for a determination of how much of a compensatory damage award should be paid to the employee.
“Zip it!” is a good rule for managers to follow whenever an employee files any kind complaint or grievance. EEO, Workers Compensation, ULP, contract grievance, etc. So, when one employee asks why he is being reassigned some additional cases, the incorrect answer would be to tell the employee that another employee filed a ULP that forced the manager to redistribute the work. The correct answer would be that management has made a decision that it needs to be redistributed.