A discrimination lawsuit can cause long-term damage to your nonprofit’s reputation and require precious time and resources for your defense. As an employer, you have a legal duty to understand the state and federal employment laws that apply to your nonprofit — and consistently follow them.
Accommodation-related incidents are an all-too-common type of claim that we see at NIA. But staying up to date with your employment practices can help reduce your risks of these types of allegations — before they happen.
So, let’s look at a real claim NIA received and discuss what the nonprofit did — and did not do — that impacted the outcome of the claim.
The Nonprofit:
A nonprofit with a mission to present live music performances and provide art, culture, and humanities to the community.
The Incident:
An employee with the nonprofit had ongoing productivity issues and requested an accommodation related to their vision.
The Legal Action:
When the accommodation request was not met in a timely manner, the employee proceeded to file a complaint with a labor oversight body alleging discrimination.
The Coverage:
The nonprofit made a claim on their Directors & Officers (D&O) insurance policy, which enabled NIA to provide the organization with defense counsel.
The Result:
During the review, the labor oversight body found that the nonprofit had failed to comply with the law by not promptly beginning the interactive process with the employee. This was determined to be caused out of the nonprofit’s lack of understanding of their responsibilities as an employer, rather than discrimination.
An employer’s failure to engage in the interactive process, even if not intentional, can be a basis for liability. In the eyes of the law, it is the employer’s responsibility to know its obligations and act accordingly.
As a result of that finding, NIA was able to negotiate a settlement with the employee’s representatives and provide online training classes to the nonprofit through NIA’s ongoing webinars.
This settled the issue with the employee and educated the nonprofit about their responsibilities around accommodation requests and how to stay in compliance with the law and prevent a similar issue.
What Did the Nonprofit Do Right?
The nonprofit had opted to include Directors & Officers (D&O) and Employment Practices Liability (EPLI) as part of their insurance coverage. That decision enabled NIA to provide the nonprofit with a defense counsel.
What Could the Nonprofit Improve?
Just like any other employer, it is crucial that nonprofits understand and comply with all state and federal laws around employment — including those regarding disability and accommodations.
In this case, the nonprofit may have improved the outcome of this incident — or even potentially prevented it altogether — by establishing practices and procedures to protect both the employer and employee alike.
These could include:
- Staying up to date on state and federal laws concerning employment — via training, refresher courses, etc.
- Regularly reviewing and updating employment practices with the nonprofit’s legal and HR teams.
- Consulting with HR professionals and experienced attorneys (if they aren’t currently on staff).
- Training supervisors how to recognize and appropriately respond to a request for accommodation.
- Establishing procedures to ensure that requests were addressed in a timely manner and include an interactive dialogue with the employee.
- Consulting NIA’s Employment Risk Consulting (included with EPLI)
- Taking advantage of available NIA webinars around employment practices.
How Can Your Nonprofit Avoid This?
Your employees are the engine that drives your mission, so you owe it to them — and your community — to make sure you are ready in case one of your employees puts you on notice that they may have a disability.
Being ready means you’re prepared to:
- Consult with HR and legal professionals to develop legally compliant practices around accommodations — then stick to them.
- Document all interactions, communications, and accommodations.
- Monitor the effectiveness of the accommodations and conduct regular check-ins.
- Maintain confidentiality throughout the process.
- Follow all applicable state and federal disability laws.
- Train your staff in disability and employment practices and provide refreshers as laws evolve and change.
- Reach out to your D&O insurance carrier to see if they provide access to HR professionals for assistance with employment risk issues.
- Consult NIA’s Employment Risk Consulting (included with EPLI)
- Take advantage of webinars and other trainings available.
Conclusion
When it comes to employment, disability, and accommodations, the law considers your nonprofit to be no different than any other kind of employer. If your organization has hired staff, the same rules apply to everyone.
That means you’ve got to keep up to date on laws and regulations concerning employment, disability, and accommodations; stay compliant with those rules; and train your staff to know how to appropriately respond when an employee puts you on notice that they may have a disability.
Understanding what your legal duties and responsibilities are to your employees — and consistently adhering to them — will help your nonprofit avoid unnecessary risks, potentially costly litigation, and enable your team to effectively serve your community and your mission.
