IN THE REARVIEW MIRROR
severely obese, where the roots of the obesity are mental or psychological rather than due to a physical impairment. Te company conditioned employment on weight loss and success- ful completion — at the applicant’s own expense — of various physical exam- inations. He did not take the sleep test because of its cost. EEOC held that the Americans with Disabili- ties Act (ADA) protected the employee, even though there was no physical basis for the extreme obesity. Te case is a warning to balance concerns and discuss those concerns and possible solutions with the individual in deciding if you can grant requests for accommodations from severely obese applicants and employees. Te 6th Circuit Court of
Appeals found in favor of a school bus driver-train- ee born without a left hand, sending the case of Rosebrough v. Buckeye Valley High School (Aug. 8) back to the trial court for further proceedings. Where acts by the school district — such as providing obstacles to her ability to schedule a CDL test — prevented the appli- cant from getting her CDL, the ADA disagreed with the district’s conclusion that she was not qualified to be a bus driver. Admittedly “murky” and under-whelming evidence nevertheless supported an Alabama court’s decision to side with a school trans- portation technician in Russaw v. Barbour County Board of Education (Aug. 28). Te technician alleged that he was non-renewed in retaliation for his opposition to, and unwillingness to cover-up, the transportation
supervisor’s sexual harass- ment of a female school bus driver. In a complicated factual setting, the court found that the supervisor recommended the non-re- newal of the technician because the technician knew about the sexual harassment, and refused the supervisor’s request to lie, if asked, about his behaviors. Te super- visor recommended the non-renewal within seven weeks of the technician’s outright refusal to lie. Te Board of Education — although unaware of the supervisor’s behavior — relied without investigation on the supervisor’s biased recommendation against the technician.
Te Equal Employment
Opportunity Commission (EEOC) issued publications on use of arrest and convic- tion records in employment decisions, the impact of Title VII on transgender individuals in the work- place, and the application of the ADA and Title VII to applicants or employees who experience domestic or dating violence, sexual assault or stalking. Te EEOC notes that
employers have increased access to workers’ criminal history records. Such infor- mation may be considered, but employers may not use the information in ways that unfairly impact employees who belong to minority groups. And employers may not automatically exclude an applicant from em- ployment just because the employee has been arrested (as opposed to convicted.) Te bottom line is that the prior conduct and disposi- tion must be directly related to the work the employee will be doing. Where the conduct makes the individ-
48 School Transportation News January 2013
ual unfit for the position in question, the employer may deny employment. Employers who fear the potential “drama” that “battered women bring to the workplace” must be able to articulate facts to support related employment decisions rather than rely on sex-based stereotypes. And, under the ADA, impairments resulting from domestic or dating violence, sexual assault or stalking may have to be reasonably accommodated where the impairment amounts to an actual disability. In April, the EEOC ad- opted the position in Macy v. Eric Holder that employ- ment discrimination against transgender individuals is a form of sex discrimination under Title VII. Although the decision is not binding on courts, employment law- yers caution that employ- ment practices and policies related to both applicants and employees should be reviewed consistent with the idea that transgender status is a protected class.
5.
CHILD ABUSE MUST BE RECOGNIZED
AND REPORTED Verbal and physical
harassment against children by bus aides and drivers
generally constitutes child abuse. Your obligation to report suspected abuse was placed on center stage with the conviction of Penn- sylvania State University’s former assistant football coach Jerry Sandusky for horrific acts that also constituted child abuse. It may be too easy to dismiss headlines such as “School Bus Driver Used Duct Tape to Restrain 5-Year-Old with Asperger’s Syndrome, Par- ents Say” (huffingtonpost. com, Oct. 12), or “Security Camera Catches Autistic Boy Tormented, Choked by Monitor on Florida School Bus” (
nydailynews.com, Nov. 16), as less awful that Sandusky’s action. However, there are lessons for officials and employees at every level of school districts and school bus companies in the scathing 267-page report issued in July by Special Investigative Counsel Louis Freeh, former FBI Director. Te Mayo clinic warns that a sign of an abusive situation might be reluc- tance to get on the school bus. Don’t be lured into complacency by the terrible frequency of headlines about driver and aides’ ac- tion. Abuse of which you’re aware must be reported to law enforcement. l
Peggy Burns is author, along with Lisa J. Hudson, of the book "Defensible Decisions about Transporting Students with Special Needs: Lessons Learned from Legal Disputes." Peggy is also the creator of four video training programs for drivers, and the editor of Legal Routes. Visit her company’s website at www.
educationcompliancegroup.com, or contact her at 888/604-6141, or by email to
peggy@educationcompliancegroup.com.
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