HomeMy WebLinkAbout2012-05-09 PACKET 12.To submit a question to this
column, visit the Department's
web site where the column
regularly appears, or sera! your
question to: The Minnesota
Department of Human Rights
z90 East 5th Street, Suite 900,
St. Paul MN Sszoz. Attn: By
Rights.
We will notpublish your name
or the names of individuals or
companies you identify, but you
must include your name and
phone number. If you have a
human rights question but
would prefer that your question
not be published, call the
Department at 65z -296 -5663 or
z- 800 -659 -3904 (toll free) and
ask for Intake.
CAN EMPLOYER POST
EMPLOYEE PHOTOS IN
PUBLIC WAITING ROOM?
To the Commissioner:
My sister works as a dental
The Commissioner says:
assistant at a community clinic in
Minneapolis, which addresses the
mental, medical and dental health
needs of its clients. Recently her
manager told the dental assistants
that they would be having head -shots
taken, and these photos would be
placed in the public waiting room. I
have to mention that this clinic is in a
very rough part of town, and the
clientele it serves includes people
with mental health issues, drug and
alcoholic issues, including convicted
felons. My question is: Does an
employer have the right to take
employees' photos and place them in
the business' public area without the
consent or permission of the
employees? The dental assistants have
great concerns about protecting their
identity.
There is no provision in the Human
Rights Act that would prevent an
employer from postingphotos of employees
in its waiting room; the Act does not speak
to employee privacy, safety or other
employment issues that do not involve
discrimination. It is possible that if the
posting of employee photos resulted in
discriminatory behavior — if, for
example, employees were to experience
sexual or other harassment from clients or
others because such photos had been posted,
and the employer refused to take action to
end the harassment — the matter could
fall within our jurisdiction. It could also
be of concern to our department if all of
those beingphotographed are female, and
theirgender or attributes related to their
gender are part of th e reason their images
are beingpublicly displayed —
particularly if there is a comparable, male -
dominatedgroup of employees who are not
having their pictures posted. But unless
discrimination is involved, your question
would appear to be outside of our
jurisdiction or expertise. Ion may wish to
contact a private attorney. The
Department of Human Rights cannot
offer legal advice.
PERFUME CALLED A HAZARD
TO EMPLOYEE'S HEALTH
To the Commissioner:
I am trying to determine my
rights as an employee of a company
where strong perfume scents are
negatively affecting my health and
posing a significant health risk — I
have a medical condition related to
my lungs. What can be done to make
this a healthy environment?
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The Commissioner answers your human rights questions
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The Commissioner says:
If your medical condition rises to the
level of a disability, your employer would
need to attempt to make a reasonable
accommodation to your condition if it has
15 or more employees. Aphysical
impairment rises to the level ofprotected
disability if it materially interferes with
a major life activity, which would
include breathing and lung function.
Tour employer would be within its rights
to request medical documentation of the
extent of your impairment and need for
accommodation, such as the creation of a
fragrance free work environment. If your
di�culty is not a disability, but the
strongperfume scents are, nonetheless,
adversely affecting your health, you
would not have a case under the
Minnesota Human Rights Act, but you
might wish to talk with a private
attorney about other legal options.
CAN A SUPERVISOR ASK
ABOUT YOUR DISABILITY?
To the Commissioner:
What medical questions can be
asked by a shift supervisor when you
call in sick? I am currently seen on a
routine basis at the VA medical
center in Minneapolis for a
disability. My company's human
resources department knows about
my disability, but I feel I should not
have to provide this information to
a shift supervisor. What are my
rights?
The Commissioner says:
An employee with a disability is not
required to reveal the details of the
disability to individual supervisors. If
the absences are related to a specific
disability, rather than occasional,
unrelated illnesses, the shift supervisor
only needs to know that the absences are
related to a condition about which
human resources is aware. If pressed by
the supervisor, referring him or her to
HR should be sufficient, although you
may want to inform HR that you are
being unnecessarily pressed for details.
Should you suffer any adverse
employment action due to following this
course, you may want to contact the
Departments Intake Unit to discuss the
details of your situation, as you may have
a claim under the Human Rights Act
and the federal Americans with
Disabilities Act (ADA).
RELIGIOUS DISCRIMINATION
AGAINST HIGH SCHOOL
ATHLETE?
To the Commissioner:
After his freshman year, our son
transferred from a large public high
school to a small Catholic high
school for religious purposes.
According to the Minnesota State
High School League (MSHSL) rules,
such a transfer renders him
ineligible for varsity athletic
competition for one year. It seems
to me that the MSHSL rule unfairly
denies our son the benefit of
possibly playing at the varsity level
simply because we chose to follow
our faith and enroll him in a
Catholic school. Would this matter
warrant further investigation as a
possible case of religious
discrimination?
The Commissioner says:
If a student were to be denied an
educational opportunity because of his or
her faith, that denial could constitute a
violation of the state Human Rights Act,
which provides that religion is a
protected characteristic in education. We
are not familiar with the policy you cite,
but as you have described it, the policy
would appear to be neutral on its face. If
we presume that a student who
transferred to any other school, religious
or secular, would be similarly ineligible,
the policy would appear to be
nondiscriminatory. Although the policy
may adversely affect your son, it would
in theory have the same affect on another
student who changed schools under
similar circumstances for reasons not
related to religion.
It is sometimes the case that a policy
that is neutral on its face can have a
disproportionate impact on members of a
particular protected class, and can be
considered discriminatory under the Act
for that reason. For example, if it could
be shown that more students transfer
from public schools to Catholic schools
than transfer from Catholic schools to
public, it ispossible that apolicy on such
transfers could have an adverse impact
on students transferring to Catholic
schools. The Department would not be
able to determinate whether
discrimination was involved in any case
without knowing all the facts.
CAN YOU `SEAL' RECORDS OF
A HUMAN RIGHTS CHARGE?
To the Commissioner:
I filed a complaint with the
Department of Human Rights
against a former employer that was
dismissed earlier this year. I would
like my file and any summaries of
the complaint sealed so that it is not
public information. I have been
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looking for work for the past 18
months and do not want this
information available to prospective
employers, as it may influence their
decision to consider me for
employment. Please advise.
The Commissioner says:
Although we understand your
concern, the Department cannot by law
`:real" data that is classified as public
under the Minnesota Human RightsAct.
Under the Act, the name and address of
the chargingparty and the factual basis
of the complaint are considered public
data once a care is closed This is true
whether the charge is ultimately
dismissed for one reason or another, or
results in a completed investigation and a
finding by the Department. The
Department does not, as a policy matter,
routinely publish or distribute
information about charges filed or the
names of chargingparties, except for a
small number of cases which are
considered to have educational value and
help fulfill the Department's educational
mission. But if we receive a request for
information about a particular closed
care, we must by law provide the data
that is classified as public with respect to
that case.
If an employer should refuse to hire
you because the employer has somehow
learned that you have previously filed a
charge with the Department of Human
Rights, such a refusal could be considered
reprisal, and illegal under the Human
RightsAct. It is a violation of the Act to
retaliate against an individual —
including refusing to hire them —
because of that individual's opposition to
discriminatory practices. If you should
find yourself in such a situation, you may
wish to contact our Intake Unit to discuss
filing a charge of reprisal.
CRIMINAL BACKGROUND
CHECK TURNS UP 24-YEAR-
OLD CONVICTION
To the Commissioner:
I recently interviewed for a job
and was told that I was hired,
pending "passing" a background
check that would go back seven
years. I have a felony conviction for
possession of a controlled substance
back in 1986, and this conviction
turned up in the background check.
I was then told I would not be
hired, because of concerns by one of
the company's major clients. I would
have been working at their office,
and they wanted to check my entire
life. What are my rights? This
conviction is 24 years old.
The Commissioner says:
In a few states and jurisdictions,
having a record of an arrest or conviction
is a protected characteristic under human
rights laws, and restrictions exist on how
employers may use such information.
Minnesota is not one of those states, and
the law we enforce — the state Human
RightsAct —does not have such
protections. Thus, an employer who
chooses to consider a24-year-old
conviction in evaluating a job applicant
wouldnot be violating the Act by doing
so. (If an employer were to exclude all job
applicants with previous arrests, rather
than convictions it ispossible that such a
blanket policy could have a disparate
impact within a protected class, such as
race, but that does not appear to be an
issue based on the information you have
provided)
We cannot speak to whether or not
you may have other legal remedies
outside the scope of the Act, based upon
your belief that you had a conditional job
offer, would have met the conditions, but
the conditions were subsequently
changed You may wish to consult with a
private attorney.
IS TENANT ENTITLED TO A
CAT ACCOMMODATION FOR
DISABILITY?
To the Commissioner:
I have a tenant with a serious
and persistent mental illness who
wants to have a cat. Her psychiatrist
has recommended that she have one
for emotional support, but our
landlord has a no pet policy. I want
to protect my tenant's rights, but I
also understand my landlord's desire
to protect himself from having to
pay for property damage caused by a
pet. So I have some questions:
1. Does an untrained cat enjoy
the same protections under the
human rights law as a "service
animal ?"
z. Does a "psychiatric service
animal' have special rights? I cannot
find the term in the statutes, but I
have been told that courts are
defining "service animal' quite
liberally these days.
3. Can our landlord request a
damage deposit for our consumer to
have the cat?
4. Can our landlord require
reimbursement for damages the cat
may cause?
I very much appreciate your
answers.
The Commissioner says:
Making an exception to a no pet
policy by allowing a tenant to have a
medically prescribed companion animal,
even a cat, can be considered a reasonable
accommodation forpurposes of complying
with the Human RightsAct requirement
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to make reasonable accommodation,
absent undue hardsbip for the landlord
A damage deposit or reimbursement for
damages actually caused by the animal is
reasonable, unless the deposit is so
excessive that it effectively prohibits the
tenant from having the animal.
DISCRIMINATION BECAUSE
OF PUBLIC ASSISTANCE?
To the Commissioner:
The manager for my apartment
unit has threatened to evict me and
my family many times. Recently I
was issued an "infraction" for
destruction of property, because of
something a prior tenant in the unit
across the hall had let their cat do. I
just feel like I'm always under attack
from the property manager, and I
know some other tenants who feel
the same way. All of us are on public
assistance. Do I have the right to
lodge a complaint?
The Commissioner says:
Ton couldpotentially file a charge
with the Minnesota Department of
Human Rights, only ifthe treatment to
which you object is related to a
characteristic that is protected under the
Minnesota Human Rights Act. In
housing, one of those protected
characteristics is receipt ofpublic
assistance. If you believe that your public
assistance status is the reason, or part of
the reason, that you (and perhaps other
tenants receivingpublic assistance) are
being threatened with eviction or cited
for infractions, you may wish to contact
our intake unit at 651-296 -5663 or r -Soo-
6 59 - 39 0 4 to discuss your situation further.
However, if the treatment to which you
object is not related to yourpublic
assistance status or to another protected
characteristic, your situation would be
outside of our jurisdiction. In that case,
you may wish to contact a tenanti union
or a legal aid clinic in your area.
SINGLE MOTHER TOLD SHE'S
ABUSING SICK LEAVE
To the Commissioner:
I am a single mother of three
children. In my employment, I earn
a certain amount of vacation and
sick time separately My employer
has frequently had discussions with
me about my sick time usage,
referring to it as a possible cause for
discipline. They know I am a single
parent, and that I try to schedule all
of my appointments for late in the
afternoon to minimize my time off.
But they equate my use of sick time
with abuse, even though I have
detailed what all of my time off is
for. They are also requiring me to
document my chronic sinus
infections, in order to justify some
of my time off. Is it fair for them to
ask me to specify why I need sick
time? And is it fair for them to
threaten me with discipline because
of it? I am emphatically not abusing
my sick time. I am using small
portions when necessary to care for
myself and my children. Are they
within their rights to hold me in fear
like this?
The Commissioner says:
Although no employer is required to
offer sick leave, under the Minnesota
Parental Leave Act, an employer who
does must allow an employee to use
accruedsick leave for the care of a sick or
injured child — provided that the
employer has at least 2r employees, and
that the employee requesting the leave
works at least z o hours per week on
average. This law is not enforced by the
Minnesota Department of Human
Rights, but is under the jurisdiction of
the Minnesota Department of Labor and
Industry. You may choose to contact them
for more information, or you may visit
their web site at
http.//www.dli.mn.gov /LS/
ParLeave.asp.
There is also a federal Family and
Medical Leave Act (FMLA), which
provides unpaid leave and covers
employers with So or more employees.
We enforce the Minnesota Human
RightsAct, which prohibits
discrimination in employment based on
certain protected characteristics,
includingsex, maritalstatus, disability
and others, and covers employers with
even one employee. With respect to your
specific questions, an employer may
reasonably require an employee to
provide medical documentation for
absences due to illness. What an employer
cannot do, under the law we enforce, is to
treat some employees and some absences
differently than others because of the
employee's sex, marital status, a disability
or another protected characteristic. If you
believe that yourgender, marital status or
anotherprotected characteristic is the
reason (or part of the reason) your
employer is subjecting your absences to
increased scrutiny, you may wish to
contact our intake unit at 651-296-5663
to discuss your situation further.
If your employer is refusing to allow
you to use sick leave for the care of a sick
child, orpenalizingyou forso doing, and
is covered under the Minnesota Parental
LeaveAct you may choose to follow up
with the Department of Labor and
Industry.
The answers in these columns are not
intended as legal advice.The Department
of Human Rights does not make a
judgment on any case without carefully
examining all the facts.
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