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April 17, 2007 > Watercooler Counsel

Watercooler Counsel

Blood and Guts and....Work?

By Rich Proulx & Malinda Tuazon

Q: I am the owner of a large canning factory. My board of directors has suggested that we organize a blood drive for our employees. I am wondering, however, whether this might somehow violate the Americans with Disabilities Act.

Cannery-Hoping-To-Avoid-A-Row
Hayward, CA

A: You raise a good question, Cannery. Although wanting to sponsor a blood drive shows nothing but the best of intentions, it might make some of your employees uncomfortable, and, if conducted improperly, some would even argue that it may be against the law. Based on risk factors, certain individuals are prohibited from giving blood. In the blood-donation screening process, potential donors are asked questions about their health status, in order to determine whether they can donate. Under the ADA, with certain exceptions, an employer can not make inquiries into the health conditions of its employees. According to San Francisco attorney J. Malcolm Bryant, at the very least, you should be sure that the employees of the blood bank do the screening, rather than any of your employees, and that the information stays within that organization. Make sure there is "no blood on your hands" by keeping the operation entirely separate - on paper, and physically: let the screening and the actual donation take place in private. Hear no evil, see no evil, speak no evil.


Q: My employer just terminated three of its most loyal, longtime employees - me included. All three of us are over 40. We were told that it was done to save money; each of us, having been with the company for decades, were among the top-paid workers. Can they do that?

Loyal But Laid-Off
Fremont, CA

A: I feel for you. Downsizing is an unfortunate reality that can fall unfairly at times, especially to employees who have given their heart and souls to the company. Sometimes an employer will make a decision which is not itself based on some unlawfully discriminatory criterion, but which will disproportionately fall on the shoulders of its older (defined as 40 or over) workers. "If only persons age 40 or over are laid off," explains San Francisco EEOC Supervisory Trial Attorney Jon Peck, "the touchstone is whether the layoff is job related and consistent with business necessity and whether there would be alternatives with a lesser impact on the protected class."

If the employer justifies the layoff by citing finances (which is usually going to be the case), the factors may include the size and financial position of the employer, and the amount the older workers were being paid over the younger. For example, if you were working for a highly successful multinational conglomerate and the amount you were making was only 4% more than your younger coworkers, the layoffs may have been illegal. Peck warns that all cases of this type are very fact-specific (i.e. there's no single right answer) and explains that analysis calls for determining "whether younger persons that are similarly situated to the older persons were treated more favorably and why." You would be best advised to consult an employment attorney and let her know the specific circumstances surrounding your discharge.


Our team of government experts would give their right arms to see your questions answered. April is National Donate Life Month when organizations are trying to raise awareness of the need for donations beyond blood. Check out www.donatelife.net to see how you can become an organ, eye, or tissue donor. Send your questions to Watercooler.Counsel@eeoc.gov. Rich is a former Supervisory Investigator and Malinda is a current Federal Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.
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