jleibovich@shuttleworthwilliams.com

I. GINA

Questions about family medical histories could cause employers serious problems beginning later this month. The Genetic Information Nondiscrimination Act of 2008 (GINA) was passed by congress to prohibit discrimination in health insurance and employment on the basis of genetic information. The portion of GINA applying to employers takes effect on November 21, 2009.

For employers with 15 or more employees, GINA prohibits discrimination in hiring, firing or other terms or conditions of employment based on genetic information related to an employee, and it further prohibits requesting, requiring, or purchasing genetic information related to an employee or family member of an employee.

The term “genetic information” includes an individual’s genetic tests or such tests of a family member as well as the manifestation of a disease or disorder by an employee or an employee’s family members. “Genetic information” does not include age or gender. Genetic testing can include analysis of such things as an individual’s DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or changes to one’s chromosomes.

The anti-discrimination portion of GINA has no exceptions as some other laws do. The EEOC takes the position that GINA is to be strictly enforced.

In addition to anti-discrimination provisions, GINA has significant confidentiality provisions related to employers. While GINA prohibits most acquisition of genetic information, this prohibition is not absolute. For example, an employer may inadvertently obtain such information, a wellness program may collect such information (with restrictions), it may be obtained when necessary to certify Family and Medical Leave Act leave, or through commercially and publicly available sources such as magazines, newspapers, and books. Genetic information may also be obtained with certain safeguards when genetic monitoring is used to measure the effect of toxic substances in the workplace or where employees are involved in DNA analysis for law enforcement purposes.

When an employer does obtain genetic information, that information must be treated confidentially, similar to how medical records are treated under the Americans With Disabilities Act (ADA). Such records must be kept in separate medical files, and can only be disclosed under certain circumstances.

The EEOC takes the position that harassment against individuals based on genetic information is prohibited by GINA, even though there is no such language in the statute. However, the statute does specifically state that there is no disparate impact cause of action under GINA. However, under the terms of the law, that issue will be revisited by a Commission in six years.

Violations under GINA can lead to a lawsuit in which the alleged victim can seek all the remedies he or she could seek under Title VII of the Civil Rights Act of 1964, as amended, including reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and compensatory and punitive damages, and attorneys’ fees and costs. Title VII’s cap on compensatory and punitive damages also apply under GINA.

The EEOC has published a new anti-discrimination poster incorporating GINA as well as recent changes in the ADA. Employers can obtain these new posters for free here.

II. WHAT DOES THIS MEAN TO EMPLOYERS?

Covered employers should print out the new posters and post them appropriately. Employers should also be very careful to avoid discrimination against individuals based on genetic factors, and should take steps to avoid improperly obtaining and disclosing such information. As always, if an employer is faced with an issue of whether or not to disclose such information, that employer should seek specific legal advice.

It is also worth noting that GINA does not replace or overturn prior laws, such as the ADA or the FMLA.

The articles published in The Legalverse are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice. All articles in the Legalverse are the property of their authors, and do not necessarily reflect the opinion of any other individual, law firm, or other entity.

On July 24, the federal minimum wage increased from $6.55 per hour to $7.25 per hour. This is the third increase in the past three years. Some states have minimum wages higher than that set by the federal government, and some have a lower minimum wage. Other states have no specific minimum wage law. In those cases where there are different minimum wages under state and federal law, employers must pay the higher rate. Tennessee has no state-specific minimum wage law. The United States Department of Labor has posted a map of the various states’ minimum wage laws here.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.

The United States Supreme Court has put employers in spot where they may not be able to tell which way to go if they want to avoid Title VII litigation.

I. The Case

On June 29, 2009, in Ricci v. DeStefano, the Court reversed a decision from the Second Circuit (which, interestingly, Supreme Court nominee Sonia Sotomayor heard as part of a panel).

At issue in Ricci were tests administered by the city of New Haven, Connecticut, to determine which members of the fire department are eligible for lieutenant and captains positions. In 2003, 118 New Haven firefighters took the qualifying examinations. The passage rate for White applicants was significantly higher than it was for Black and Hispanic applicants.

Following heated discussions, the city threw out the tests for fear of facing a disparate-impact race discrimination claim. Some of the White applicants who passed the test sued, and the district court granted the city summary judgment. The Second Circuit affirmed.

The Supreme Court, however, took a different view.

Initially, Title VII of the Civil Rights Act of 1964 did not contain a “disparate-impact” cause of action. That is, it only addressed intentional discrimination based on race, among other factors. However, the United States Supreme Court in cases such as Griggs v. Duke Power Co., 401 U.S. 424 (1972) and Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) recognized a cause of action for disparate-impact claims, in which a facially neutral practice is discriminatory in effect. Employers could defend such practices by showing that the practice is job-related. In such cases a plaintiff would then have to show legitimate alternatives to the practice that had less of a discriminatory impact.

As part of the Civil Rights Act of 1991, Congress codified these concepts.

In the Ricci case, the city of New Haven faced a real dilemma. There was no question that test did have a disparate impact on minority candidates. This ultimately led the city to decide to throw out the test results. However, in doing this, the City actively discriminated against White applicants who had successfully taken an objective test. So, the City appeared to be in a position of avoiding either intentional discrimination against the White employees, or of avoiding unintentional discrimination of the minority candidates.

The United States Supreme Court held that the City’s decision violated Title VII.

The Court noted that there is an apparent conflict in Title VII’s intentional discrimination and disparate-impact provisions. And, the Court set out to try and provide guidance in how to deal with such conflicts. The Court adopted a “strong-basis-in-evidence” standard. Under this standard, an employer can only make race-based decisions in cases where “there is a strong basis in evidence of disparate-impact liability, buit it is not so restrictive that it allows employers to act only when there is a provable, actual violation.”

In Ricci, the Court determined the City did not have a strong-basis-in-evidence to believe that it would face liability under a disparate-impact claim. The Court acknowledged that there was a prima facie claim of disparate-impact based on the passing percentage of minority applicants. However, the Court concluded that although a prima facie case could have existed, the City could not show a strong basis to show it would have ultimately been liable for such claims as it appears that the tests likely would have been deemed to be consistent with job necessity, and it appears that there likely were not less-discriminatory methods than the tests that would have served the City’s needs.

Therefore, the Court held the White firefighters were entitled to summary judgment on their Title VII claim for intentional discrimination. Based on this, the Court decided it need not address the issue of whether or not the City’s actions violated the Equal Protection Clause of the U.S. Constitution. And, interestingly, the Court noted that it specifically did not hold that the very standard it announced would satisfy the Equal Protection Clause. This remains a very open issue.

II. What Does This Mean To Employers?

Ricci may well put employers in a quandry. Employers who utilize objective test or application standards that have a disparate-impact on minority applicants now can not simply err on the side of caution and boot the results of those standards. An employer that finds itself in this position must now go through a legal analysis and, essentially, determine how it would fight and either win or lose a disparate-impact claim before deciding if it can ignore the results of the facially neutral standards. But, either way an employer decides in these cases, there is a real risk of litigation.

Of course, the best plan of action is to try to make standards as “bullet proof” as possible. Make sure employment or promotion testing or standards are absolutely necessary for the position. Analyze whether or not such standards are likely to have a disparate-impact, and, if so, determine whether or not there are other ways to reach the same goals that likely have less of a potentially discriminatory impact.

This is, admittedly, easy to say on paper. Sometimes it is impossible to know for sure what may or may not have a disparate-impact that favors one protected group over another. So, when the spectre of disparate-impact discrimination appears after standards have been applied, employers need to take a step back and really balance out the potential dangers of a disparate-impact claim on one hand and an intentional discrimination claim on the other. If the employer does not have a strong basis – based on the facts of the case – that it would lose a disparate-impact claim, then that employer would be facing real danger in erring on the side of avoiding the disparate-impact liability and in taking action that amounts to intentional discrimination against the protected group that was not adversely affected by the standards in question.

Unfortunately, Ricci will likely lead to employer confusion and make it difficult to decide which way to move. This is one of those situations where an employer simply has to make an educated guess as to which path is less dangerous. And, of course, that provides employers little comfort. It puts employers in the position of essentially having to figure out how they would fare in a non-existent lawsuit before deciding which way to lean in a conflict inherent in Title VII. But, being able to legally analyze these issues should at least help employers head in the right direction, which is why this is an area where consultation with an attorney prior to making a decision could be invaluable.

The articles published in The Legalverse are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice. All articles in the Legalverse are the property of their authors, and do not necessarily reflect the opinion of any other individual, law firm, or other entity.

The Tennessee Legislature has passed legislation aimed at reversing the impact of a 2007 Tennessee Supreme Court ruling that awarded death benefits to the widow of a worker who suffered a fatal heart attack while playing basketball on company property.

The new law prohibits compensation awards for an injury or death due to participation in recreational, social, athletic, or exercise activities, whether or not the employer picks up some or all of the cost.

But it would allow compensation when:

– Participation was expressly or impliedly required by the employer.
– Participation produced a direct benefit to the employer beyond improvement of its employees’ health and morale.
– Participation was during work hours and was part of the employee’s job duties.
– The injury or death was caused by an unsafe condition, known by the employer, but unwarned by the employer to others.

A summary of the bill and a history of actions are here.

The Legislature has also passed a new law governing communication by employers, insurers and attorneys with physicians in WC claims, effective for claims arising after July 1, 2009.
Read the new law here.

The articles published in The Legalverse are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice. All articles in the Legalverse are the property of their authors, and do not necessarily reflect the opinion of any other individual, law firm, or other entity.

The United States Supreme Court recently issued a ruling that arguably represents a drastic change in the enforceability of arbitration clauses in collective bargaining agreements (CBAs). In 14 Penn Plaza LLC v. Pyett, a sharply divided Court all but reversed a line of cases going back more than 30 years.

In Pyett, a group of employees who were members of the Service Employees International Union were employed by a maintenance service and cleaning contractor in a New York building. The building hired a security firm, which led the employer to reassign some of the employees to other duties and locations within the building. Ultimately, some of the employees sued under the Age Discrimination in Employment Act (ADEA) as well as state and local laws, alleging age discrimination.

The employer and the building owners (collectively “Petitioners”) filed a motion to compel arbitration, based on a clause in the relevant CBA which stated, in part “There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, … or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures … as the sole and exclusive remedy for violations.”

The District Court denied the motion, and the Second Circuit upheld the denial on the basis of the U.S. Supreme Court’s 1974 decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), which the Second Circuit noted held that a CBA could not waive an individual employee’s rights to file a cause of action when such a cause of action is created by Congress. The Second Circuit noted that there exists some tension between Gardner-Denver and a 1991 U.S. Supreme Court decision, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), which held than individual employees could waive the right to a private cause of action under the ADEA in the face of an individually entered into arbitration agreement.

The Pyett Court reversed the Second Circuit.

Writing for the majority, Justice Thomas noted that under the National Labor Relations Act (NLRA), the Union is the exclusive representative of employees for the purposes of collectively bargaining over rates of pay, wages, hours of employment and other terms and conditions of employment. The Court stated that claims of discrimination, including those under the ADEA, are clearly conditions of employment and therefore subject to mandatory bargaining. Thus, the Court reasoned, an arbitration clause regarding claims under the ADEA, are enforceable.

The Pyett Court held that unless a statutory cause of action specifically bars mandatory arbitration agreements, then such agreements are enforceable. The ADEA has no such bar.

The Court further stated that Gardner-Denver and its progeny do not prohibit such mandatory arbitration clauses in CBAs. The majority opinion stated that Gardner-Denver refused to enforce an arbitration provision because the clause in question did not specify that statutory claims must be arbitrated.

The majority opinion recognized that Gardner-Denver and the cases that followed contained dicta critical of arbitration. The Court dismissed several concerns over the efficacy of arbitration.

The Pyett Court held that a “collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.”

Four Justices disagreed with this decision, and Justice Stevens and Justice Souter both authored dissents (with Justices Ginsberg and Breyer joining) very critical of the majority’s decision. Justice Stevens wrote that the opinion disregard’s the Supreme Court’s precedent. Justice Souter noted that Gardner-Denver expressly forbade the enforcement of an arbitration clause in a CBA regarding an individual’s Title VII claim. Justice Souter’s strong dissent added “The majority evades the precedent of Gardner-Denver as long as it can simply by ignoring it.”

Justice Souter does note that the majority opinion reserved the question of whether a CBA’s waiver of claims is enforceable when the union controls access to and presentation of employee claims.

However, the dissent strongly argues that this decision blatantly ignores precedent established by Gardner-Denver and numerous subsequent cases.

The majority opinion, of course, does not agree. However, the Court noted that even if the dissent’s interpretation of Gardner-Denver is correct, then that case would “appear to be a strong candidate for overruling…”

What Does This Mean to Employers?

The Pyett case is confusing. While it is technically limited to ADEA claims, the majority’s analysis would appear to be applicable to all claims, despite the language in Gardner-Denver. If employers want a mandatory arbitration clause in a CBA (or, for that matter, in a private agreement), the clause should be clear and explicitly name the statutory rights which are to be covered by the clause. It is not enough to simply say “all claims must be arbitrated.” The clause should specifically list all statutory claims that are subject to arbitration. Employers must also be cognizant that Pyett may not reach Title VII claims. However, it appears that a good argument could be made that Pyett should apply to all statutory claims in which the statute does not prohibit mandatory arbitration. Of course, it will take some time before we know whether or not that is the case, and employers should be aware of this concern. In any case, all arbitration clauses, whether in a CBA or in an individual agreement outside the union setting, should be as clear and explicit as possible.

The articles published in The Legalverse are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice. All articles in the Legalverse are the property of their authors, and do not necessarily reflect the opinion of any other individual, law firm, or other entity.

The Department of Labor issued new regulations to the Family and Medical Leave Act (FMLA) that provide greater coverage for military families while clarifying some long standing FMLA issues. The regulations, which went into effect earlier this year, present employers with significant changes in FMLA related issues.

Generally speaking, the FMLA applies to employers with 50 or more employees, and only employees with one year or more of service to the employer with 1,250 hours of service in the 12 months prior to the leave are entitled to FMLA leave. Under the FMLA, qualified employees are entitled to twelve weeks of unpaid leave during a year:

– for the birth and care of the newborn child of the employee;
– for placement with the employee of a son or daughter for adoption or foster care;
– for the care of an immediate family member (spouse, child, or parent) with a serious health condition; or
– for an employee’s own serious health condition.

Covered Servicemember Leave
Recent changes in FMLA regulations incorporate the National Defense Authorization Act for FY 2008 (NDAA). Under the new regulations, there are two types of new leave. The first is for family members of covered members of the armed services due to that service member’s serious illness or injury that was incurred in the line of active duty. The regulations provide 26 weeks of leave for this purpose. In addition to extending the 12 week period for this purpose, the regulations also extends coverage for this purpose to the servicemember’s next of kin, as opposed to the more narrow coverage provided under the FMLA for those eligible for leave to care for a relative’s serious health condition.

Qualifying Exigency Leave
The new regulations also allow for Exigency Leave for qualified family members of an individual serving in the National Guard or Reserves. This provision provides that such qualified employees can utilize their FMLA leave (up to 12 weeks unpaid) in the following exigencies that are related to the service member’s active duty or contingency operations:

– Short-notice deployment
– Military events and related activities
– Childcare and school activities
– Financial and legal arrangements
– Counseling
– Rest and recuperation
– Post-deployment activities
– Additional activities agreed to by the employer and employee

The Department of Labor has created forms for these military related leaves.

Other Changes and Clarifications
While the military leave issues have garnered the most attention, the new regulations touch on other areas. These include:

Break in Service
In order to qualify for FMLA leave, an employee must have worked for an employer for 12 months. However, these do not have to have been 12 consecutive months. Under the new regulations, if the employee has worked for the employer for 12 months over a seven year period, that employee is eligible for FMLA leave if all other requirements (including 1,250 hours worked in the 12 months prior to leave) are met. Different rules apply for servicemembers that essentially require an employee to count periods prior to a break in employment due to military service.

Applying Ragsdale: The Department of Labor changed the regulations to indicate that an employer is not liable under the FMLA unless the employee demonstrates actual, individual harm for an FMLA violation. This is to comport with the United States Supreme Court’s decision in Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002).

Light Duty Work: Light duty work does not count against an employee’s FMLA leave.

Release of Claims: Employees may voluntarily release FMLA claims with court or Department of Labor approval, however future FMLA claims can not be waived.

Serious Health Condition: The new regulations clarify issues related to what constitutes a serious health condition under the FMLA. The FMLA provided one definition as more than three consecutive days of incapacity plus two visits to a health care provider. Under the new regulations, this is clarified to mean that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit must take place within seven days of the first day of incapacity. This same seven day rule applies to another definition of aserious health condition which requires more that three consecutive days of incapacity plus a regimen of continuing treatment. The regulations also define that “periodic visits” to a health care provider for purposes of FMLA leave for chronic health conditions means two or more visits in a year.

Paid Leave: An employer must allow employees to take accrued paid leave in lieu of unpaid leave under the same rules that would apply to all other employees. This applies to vacation as well as “personal leave” or any other paid leave policies. An employer may waive any procedural requirements for the taking of paid leave if it is to be utilized for FMLA purposes.

Perfect Attendance Awards: Employers do not have to provide perfect attendance award when an individual only misses work due to FMLA leave, provided that all other leave is treated similarly.

Employer Notice Requirements: The new regulations place various notification requirements on how employers must advise employees of FMLA rights. These include a general notice through a poster and either an employee handbook or other notification upon hire, eligibility notices, rights and responsibilities notices, and designation notices. The notification period for employers has been extended from two business days to five.

Reporting Absences: Employees are required to follow usual procedures for reporting an absence occasioned by an unforeseeable need for FMLA, unless unusual circumstances exist.

Certification: The Department of Labor has created forms for certification of serious health conditions. If an employer feels that a medical certification does not provide enough information, the employer must specify in writing what is lacking and give the employee seven days to cure the issue. When an employer needs to seek clarification or gather information from a health care provider about an employee’s condition, only a health care provider, human resources professional, leave administrator or management official may make such contact. However, an employee’s direct supervisor can not request such information. When such information is requested, it can not exceed what is required by certification forms. The new regulations have updated model forms for employers to use for this purpose. Furthermore, if the health care provider is covered under HIPAA, the employer must obtain a HIPAA compliant authorization form from the employee before contacting the health care provider. If the employee refuses to provide

Recertification: When a medical condition lasts for more than a year, an employer may request recertification each year. For other ongoing conditions, recertification may be requested every six months (previously, this was every 30 days).

Fitness-For-Duty: Employers may require fitness for duty certifications that address the employee’s ability to perform the essential functions of their job, and may require certification when an employee returns from intermittent leave where reasonable job safety concerns exist.

The Department of Labor has provided various forms for dealing with various aspects of the FMLA, including those in the new regulations. These are available here.

What Does This Mean to Employers?
The FMLA has never been the easiest law for employers to administer. The new regulations certainly do not change that.

In light of the new forms of leave as well as the changes and clarifications to the prior regulations, employers need to review and revise their FMLA policies, as well as policies related to absenteeism, “call in” procedures, and how paid leave is utilized.

Employers should also review the forms they use for FMLA certification purposes, or, better yet, obtain and utilize the forms created by the Department of Labor.

The changes in the regulations provide employers with a very good reason to take care of what should be regular maintenance and review of existing policies.

The articles published in The Legalverse are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice. All articles in the Legalverse are the property of their authors, and do not necessarily reflect the opinion of any other individual, law firm, or other entity.

The first bill President Obama signed into law shortly after taking office was the Lilly Ledbetter Fair Pay Act of 2009. The law was specifically designed to nullify a Supreme Court decision, and to extend the reach of potential claims regarding disparate pay discrimination claims under Title VII of the Civil Rights Act (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

History

The legislation was triggered by the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). Lilly Ledbetter (“Ledbetter”) worked at a manufacturing facility as a salaried employee from 1979 through 1998. In March 1998 she filed a charge with the EEOC alleging discrimination based on her gender. After retiring in November 1998, Ledbetter filed a charge of discrimination with the EEOC. Ultimately, she filed a lawsuit under Title VII and under the Equal Pay Act (“EPA”). The EPA claim was dismissed by the trial court, while the Title VII claim went forward.

Ledbetter alleged that decisions regarding pay were based on supervisor evaluations, and that during the course of her employment, she was given negative evaluations due to her gender. The jury awarded her backpay and damages.

The case went through the appellate process, and ended up at the United States Supreme Court. The issue before the Court involved a statutory requirement for claims under Title VII. Specifically, Title VII requires that before a plaintiff may file a case in court, that individual must file a charge of discrimination with the EEOC. The individual must file that charge within 180 days of the alleged discriminatory act (or, in states such as Tennessee where there is also a state law protecting the same rights, the filing period is extended to 300 days).

In Ledbetter’s case, the negative evaluations in question took place more than 180 days before she filed her charge.

The issue was whether or not a new 180 day period commenced with each paycheck, or whether the evaluations represented “discrete acts” of discrimination from which the 180 day began to run.

The Ledbetter Court held that the pay system, which was based on supervisor recommendations, was not established for discriminatory purposes. Therefore, the Court reasoned that the supervisors’ recommendations stood as discrete acts. Since these acts occurred more than 180 days prior to the charge, the Court ruled that Ledbetter’s claim was not timely.

The Lilly Ledbetter Fair Pay Act of 2009

This decision, along with a strongly worded dissent by Justice Ginsburg, set legislative wheels in motion. The Lilly Ledbetter Fair Pay Act was initially shot down in the Senate in 2008, but was re-introduced, and ultimately passed the House and Senate in January 2009 as The Lilly Ledbetter Fair Pay Act of 2009. President Obama signed the bill into law days after that.

The law explicitly legislatively reverses the Ledbetter decision. Under the law, each paycheck triggers a new 180 (or 300) day period within which to file a charge of discrimination when the amount of the paycheck is affected by a discriminatory reason. This is a reintroduction of the “paycheck accrual rule” that the EEOC and most federal courts of appeals had applied prior to the Ledbetter decision.

The law does not only apply to discrimination based on gender. It applies to all categories protected by Title VII, the ADA, the ADEA and the Rehabilitation Act.

Under the Act, back pay of up to two years is recoverable where the acts earlier than 180 (or 300) days prior to the charge are similar or related to the acts within the statutory period.

The Act was enacted so as to retroactively apply to May 28, 2007 forward.

It is important to note that this law does not affect the Equal Pay Act, which is separate from Title VII. The EPA does not require the filing of an EEOC charge. In Ledbetter, the plaintiff’s EPA claim had been dismissed on summary judgment and she did not pursue that issue in appeals.

What Does This Mean to Employers?

The Act gives Title VII claims a significantly longer shelf life. Actions from the distant past can continue to haunt employers for as long as an individual draws a paycheck. In an effort to potentially limit liability, employers should look at how compensation decisions have been made. Where there has been subjectivity that could have been influenced by discriminatory intent, employers should consider make sure individuals’ compensation is not inequitable or influenced by discrimination. By fixing past mistakes now, employers can possibly break the links of the chain 180 (or 300) days after the appropriate changes are made.

President George H.W. Bush signed The Americans With Disabilities Act (“ADA”) into law in 1990.  The law was designed to eradicate employment discrimination against qualified individuals with a disability.

What Congress likely did not anticipate in the passage of the ADA is that the key issue that would end up being argued about in the courts is whether or not an individual does or does not have a disability.

In the years following the passage of the ADA, lawsuits began to make their way through the court system that focused on the issue of disability.

In 1999, the United States Supreme Court issued decisions in three cases that have become known as “the Sutton trilogy”. These cases all had an enormous impact on the ADA.

In Sutton v. United Airlines, 527 U.S. 471 (1999) the Supreme Court reviewed a case involving twin sisters who were denied employment with United Airlines due to their severe myopic vision. However, when the women wore glasses, they could see fine. The Supreme Court held that whether or not an individual is disabled under the ADA should be determined in such individual’s mitigated state. In other words, since the myopia was mitigated by glasses, the individuals were deemed by the Court to not be disabled. The other two Sutton trilogy cases also held that a court must look at an individual in their mitigated state to determine if they have a disability under the ADA.  Murphy v. United Postal Service Inc., 527 U.S. 516 (1999) involved an individual taking blood pressure medication, while Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999) dealt with person with monocular vision who was able to mentally compensate in the use of his vision.

In 2002, the Supreme Court decided another case which employers saw as a victory in the ADA arena. In Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002), the Court looked at a case of an individual with tendonitis and bilateral carpal tunnel syndrome which she claimed restricted her ability to do her job. The Court held this was not an impairment under the ADA, and added “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term.” The Court noted that although someone may be unable to perform a class of jobs, if they could do activities central to one’s daily life – such as taking care of personal hygiene and household chores – such individuals would not qualify under the ADA.

Between the Sutton trilogy and Williams, employers were able to much more easily prevail in summary judgment motions arguing plaintiffs were not qualified individuals with a disability under the ADA.

In 2008, Congress passed the ADA Amendments Act of 2008 (“ADAAA”), which went into effect January 1, 2009. Among the stated purposes of the ADAAA was to legislatively overturn Sutton and Williams, and to focus on employers’ obligations more than on whether or not an individual has an impairment.

The ADAAA specifically states that the definition of “disability” should be broadly construed. As part of this broad construction, the Act states that an impairment limiting one major life activity need not limit other major life activities to be deemed an impairment. Furthermore, an individual can still be deemed to have a disability, even if the condition is episodic in nature or is in remission.

Furthermore, the ADAAA includes a non-exclusive laundry list of things that constitute “major life activities”.  These include caring for oneself, manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.  Additionally, the ADAAA lists majorly bodily functions that can trigger coverage, including, but not limited to:  normal cellular growth, immune system, digestive system, bowel, bladder, reproductive system, neurological system, brain, respiratory system, circulatory system, and endocrine system.

The ADA and ADAAA prohibit discrimination against individuals “regarded as” having a disability.  The ADAAA, however, presents employers with potential problems.  Under the ADAAA, discrimination is prohibited against someone who is regarded as having a physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.  Commentators disagree on what the impact of this provision of the ADAAA will have.  Disability rights advocates argue this merely resets the ADA to its original intended purpose.  Others, however, argue that this is a vast expansion of coverage, and that there will be a flood of litigation from indviduals who claim they are regarded as having a disability, regardless of how inconsequential that perceived disability may be.   One point the ADAAA does clarify in relation to “regarded as” cases is that an employer is not required to provide a reasonable accommodation for perceived impairments.  Such accommodations remain legally necessary for actual disabilities.

Congress shot down the Sutton trilogy in the ADAAA, which states that a determination of disability shall be made without regard to mitigation, such as medication, medical supplies, or behavioral or neurological adaptations to a condition. Ordinary glasses and contact lenses, however, may still be taken into account for this purpose.

The ADAAA prohibits employers from utilizing hiring criteria related to uncorrected vision unless such requirements are job related and consistent with business necessity, and the Act mandates that the EEOC issue new regulations consistent with the ADAAA.

What does this mean to employers?

Employers need to be aware of these significant changes.  Hiring, discipline, and termination decisions must be made on an individualized basis.  Employers should be very cautious that they do not actually or arguably discriminate against individuals with actual or perceived disabilities.  One area to watch closely is how courts will deal with the new “regarded as” standards.   There is a very real possibility that this could become a growing area in employment litigation cases.

Employers must realize that they will not have as easy a time prevailing in ADA cases as they have in previous years. Employers should utilize proper hiring, discipline, and termination practices in conjunction with other best practices regarding such things as proper record keeping and accurate employee evaluations if they want to avoid getting bitten by the new teeth the ADA has recently grown.

Joe is presenting a free webinar on the ADAAA on March 18, 2009 at 2:00 p.m. Central time. Click here to sign up.