Earlier today I wrote on the EEOC’s proposed regulation implementing the ADA Amendments Act. This evening, those proposed regulations finally became available. You can download them from HRhero.com. Thanks to Dan Schwartz for pointing this out.
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The ADA Amendments Act, which became effective January 1, 2009, is intended “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” Recently, the EEOC published its proposed regulation interpreting these amended provisions. The regulations will be published this week, and the EEOC has already published a helpful Q&A discussing the proposed ADAAA regulations.
The core three-part definition of “disability” largely remains unaltered. An ADA-protected disability is still defined as:
What has changed under the ADAAA is how these definitions are interpreted and applied. Indeed, according to the EEOC, “As a result of the ADAAA, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability….’”
Major Life Activities
“Major life activities” fall under one of two categories. An employee only needs one major life activity from either of the following:
Substantially Limiting
To have a disability (or to have a record of a disability) an individual must be substantially limited in performing a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual in performing a major life activity to be considered “substantially limiting.” Determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual’s ability to perform a specific major life activity with that of most people in the general population.
Mitigating Measures
The positive effects from an individual’s use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity. In other words, an employer must ignore the fact that a mitigating measure removes or reduces an impairment in determining whether an employee is disabled. Mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices (devices that magnify a visual image), reasonable accommodations, and even behavioral modifications. Ordinary eyeglasses or contact lenses do not count as mitigating measures.
Exemplar Impairments
The following are examples of impairments that consistently meet the definition of “disability”: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
The following are examples of impairments that may be substantially limiting for some individuals but not for others: asthma, back and leg impairments, and learning disabilities.
An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. Examples of such impairments include: epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia.
The following are examples of impairments that usually are not considered “disabilities”: the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone that is expected to heal completely, appendicitis and seasonal allergies.
“Regarded as” Disabled
Under the ADAAA, an employer “regards” an individual as having a disability if it takes a prohibited action based on an individual’s impairment or on an impairment the employer believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. No longer does one have to show that the employer believed the impairment (or perceived impairment) substantially limited performance of a major life activity. Employers have no obligation to provide reasonable accommodation to an individual who only meets the “regarded as” definition of disability.
The regulations are not final, and are subject to change after the public has had a 60-day opportunity to comment and make suggestions. I will report further on these regulations after they become final.
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According to an EEOC press release, the agency has filed suit against Ohio-based retailer Abercrombie & Fitch for alleged discrimination “against a 17-year-old Muslim by refusing to hire her because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.” According to the lawsuit, pending in Tulsa, Okla., an Abercrombie Kids store refused to hire Samantha Elauf for a sales position because she was wearing a head covering during her interview, which violated the company’s “Look Policy.” The lawsuit also claims that the store failed to accommodate her religious beliefs by making an exception to the Look Policy
According to the EEOC Compliance Manual on Religions Discrimination, “An employer’s reliance on the broad rubric of ‘image’ to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called ‘customer preference’) in violation of Title VII.”
Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. Undue hardship is a low standard – the proposed accommodation need only pose more than a de minimis cost or burden. At least one court, the 1st Circuit in Cloutier v. Costco Wholesale Corp. [PDF], has held that granting an exemption to a dress and grooming policy poses an undue hardship.
Anyone who has ever walked through a shopping mall knows that Abercrombie & Fitch portrays a certain image. Unless the EEOC can prove that the company promotes that image and maintains its “Look Policy” to exclude Muslim customers (or because of a preference for non-Muslim customers), it will have an uphill battle in proving that Abercrombie discriminated against this one job applicant by applying a facially neutral policy against her.
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Yesterday, I wrote about Ohio’s proposed law that would ban discrimination based on gender identity. Earlier this week, Dan Schwartz at the Connecticut Employment Law Blog weighed in on this issue in light of South African runner Caster Semenya, who competes as a woman but might genetically be a man.
In other pop culture news, Molly DiBianca at the Delaware Employment Law Blog gives her thoughts on workplace civility in light of recent outbursts by South Carolina GOP Rep. Joe Wilsonest, Serena Williams, and Kanye West.
Debra Reilly’s Workplace Investigations discusses employers’ bans on hiring employees with criminal histories. I’ve also touched on this topic before.
In other news about hiring decisions, Sindy Warren at the Warren & Hays Blog suggests that employers sparingly make word-of-mouth hiring decisions.
Both Philip Miles’s Lawffice Space and Walter Olson’s Overlawyered report on an Indiana court that has ruled that a pizza shop must pay for a 340-pound employee’s weight-loss surgery as a precursor to another operation for a workplace back injury.
LaborPains.org thinks unions efforts at a renaissance are futile. Meanwhile, the EFCA Report thinks that Senate Democrats are fractured on whether the controversial bill will pass this year.
Ann Bares at Compensation Cafe thinks that job titles can have some value to employees.
Ride the Lightning, courtesy of Eric Welter’s Laconic Law Blog, on whether employees have a right to privacy in personal emails sent via web-based email over an employer’s computer system.
Michael Maslanka’s Work Matters reminds us that often we need to start with the basics.
Melanie McClure at Arkansas Employment Law, on policies and exceptions.
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In yesterday's Columbus Dispatch, Jim Siegel reports that the Ohio House passed a bill that would prohibit employment discrimination based on sexual orientation by a vote of 53-39. If enacted, Ohio would join 20 other states with similar prohibitions. 17 Ohio cities, including Cleveland, already have similar laws.
The legislation would add sexual orientation and gender identity to the list of protected classes against whom employers cannot discriminate. The bill defines sexual orientation as “actual or perceived, heterosexuality, homosexuality, or bisexuality.” It defines gender identity as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.” Other key provisions include:
The bill now moves on to the Ohio Senate, where its Republican majority promises a fight. According to Senate President Bill Harris, “I talk to business people all the time, and they’re saying it’s not an issue.” So let me get this straight. It’s acceptable to oppose this bill because businesses are self-reporting that they are not discriminating. Isn’t that akin to asking a plantation owner in 1863 if he wants to abolish slavery?
If we want to be a state that is attractive to progressive businesses, we need to pass progressive legislation. Let’s hope the Senate gets its act together and sends this bill to Governor Strickland for his signature.
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This week, Michael Haberman, at HR Observations, continues his series on “isms” with a post on what he calls “fatism” (or discrimination against the overweight). I found this post to be timely in light of recent headlines made by the Cleveland Clinic’s CEO that he would not hire obese people if the law allowed him to do so (he has since retracted those criticized comments).
Conventional wisdom says that with the exception of the morbidly obese, obesity is not a characteristic protected by the anti-discrimination laws. Indeed, in 2006, the 6th Circuit said as much in EEOC v. Watkins Motor Lines [PDF], holding that “to constitute an ADA impairment, a person’s obesity, even morbid obesity,
must be the result of a physiological condition.” However, on Jan. 1, 2009, the ADA Amendments Act took effect. The ADAAA broadens what qualifies as a “disability” under the ADA.
It remains up in the air exactly how broadly this definition has been expanded. I do not believe it has been expanded so far as to encompass things such non-physiological obesity. We will have to wait and see, however, on the breadth of the ADAAA until courts and the EEOC start weighing in on exactly how broad the definition of “disability” has become.
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Many employers have affirmative action plans. However, just because you have a plan does not mean that the plan should be the only decision-making factor in hiring employees. In fact, sole reliance on an affirmative action plan in hiring could lead to a claim of reverse discrimination. In Humphries v. Pulaski County (8th Cir. 9/3/09) [PDF] examined the case of a white employee turned down for every promotion for which she applied in favor of African Americans. The court held:
[E]vidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination. If the employer defends by asserting that it acted pursuant to a valid affirmative action plan, the question then becomes whether the affirmative action plan is valid under Title VII….
To be valid, an affirmative action policy must be narrowly tailored to meet the goal of remedying past discrimination. It cannot, however, be used to maintain racial quotas. In the court’s words, it cannot be used to “unnecessarily trammel the rights of non-minorities.”
If your business has an affirmative action plan, use it as a factor in hiring decisions, but not the only factor.
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We are a few days past the 8th anniversary of what many consider to be the worst day in the history of our country. According to a recent survey conducted by The Pew Research Center, there is still a perception that Muslims are discriminated against more than any other religious or other group.
2,010 adults were asked the following question: “Just your impression, in the United States today, is there a lot of discrimination against ____ or not?” Here are the results:
| Yes | No | |
| % | % | |
| Muslims | 58 | 29 |
| Jews | 35 | 54 |
| Evang. Christians | 27 | 56 |
| Athiests | 26 | 59 |
| Mormons | 24 | 56 |
| Gays & Lesbians | 64 | 30 |
| Hispanics | 52 | 41 |
| Blacks | 49 | 46 |
| Women | 37 | 59 |
This study does not reveal actual incidents of discrimination, but people’s perception of others’ discrimination. Interestingly, the only group that fairs worse than Muslims is gays and lesbians.
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Molly DiBianca at the Delaware Employment Law Blog reports on a CareerBuilder.com survey that 56% of employers either use or intend to use social media to background check applicants. Do you want to learn all about the role of social networking in your workplace? Then come to KJK’s next Breakfast Briefing: Google and Facebook and Twitter, Oh My! Emerging Workplace Technology Issues.
What About Clients? suggests that lawyers not only use litigation to cure a past problem, but also as a preventative measure to prevent future problems.
One problem that needs to be cured – wage and hour violations, at least according to Tresa Baldas at the National Law Journal. As I noted last week, I couldn’t agree more.
John Gilleland, Ph.D., guest posting at Quirky Questions, shares his poignant thoughts on the impact the recession is having on jury deliberations in employment cases.
Sindy Warren at the Warren & Hays Blog teaches employers what to do when an employee cries '”Harassment.”
Michael Haberman’s HR Observations, on age discrimination. Mike’s thoughts are a nice complement to mine from earlier this week on forced retirement.
Do you want to know what non-compete agreements have in common with Sexual Chocolate? Then check out Kris Dunn, The HR Capitalist.
Darcy Dees at Compensation Cafe, on the importance of regular performance reviews.
Michael Maslanka’s Work Matters discusses how not to handle an employee’s days off to adopt a baby.
Eric Welter’s Laconic Law Blog discusses the IRS’s decision-making process for employees versus independent contractors.
This week’s review ends with what might be the worst employee training idea ever. According to Above the Law, an employee has sued a New Jersey health center after it faked a break-in and hostage situation to teach employees how to handle a crisis.
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There is nothing inherently wrong with an employer having more than one reason for making an employment decision. For example, you could fire an employee because she is insubordinate and because she has poor attendance. Or, you can not hire someone because she is unqualified and she dressed sloppily at the interview. However, when reasons cannot logically co-exist, you might get yourself in trouble. Peck v. Elyria Foundry Co. (6th Cir. 9/9/09) [PDF] provides a good example.
Elyria Foundry refused to hire Carolyn Peck for any of the positions for which she applied. In support of its decision, the Foundry offered five different reasons:
The court took issue with these various explanations, but focused its attention on the timing. If Peck’s carpel tunnel and prior attendance issues barred her from employment, why did the Foundry keep her application open for other positions that were ultimately filled by men?
The next time you give more than one reason for an employment decision, run them through the common sense test to make sure that they cannot be folded back on themselves and create pretext where it might not otherwise exist.
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Pretext is a commonsense inquiry: did the employer fire the employee for the stated reason or not? This requires a court to ask whether the plaintiff has produced evidence that casts doubt on the employer’s explanation, and, if so, how strong it is. One can distill the inquiry into a number of component parts, and it can be useful to do so. But that should not cause one to lose sight of the fact that at bottom the question is always whether the employer made up its stated reason to conceal intentional discrimination.
These are the words of the 6th Circuit from earlier this week in Chen v. Dow Chemical [PDF], a race discrimination and retaliation case. In 1964, U.S. Supreme Court Justice Potter Stewart famously non-defined obscenity as, “I know it when I see it.” In employment litigation we often get caught up in formal burdens of proof, legitimate non-discriminatory reasons, pretext, and direct evidence. Yet, discrimination cases are usually decided with the same informality laid out by Justice Stewart. If an employment decision looks discriminatory, then it probably is. The challenge for employers is to avoid the appearance of a made-up reason.
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It’s still a fairly popular misnomer that businesses can force employees to retire at a certain age. For example, last week Law.com reported on a verdict against a Connecticut pharmaceutical company that forced its Chief Patent Counsel to retire at age 65.
With the exception of a few limited circumstances, mandatory retirement ages are about as close to a slam dunk case of illegal age discrimination you can find. The exceptions permit – but do not require – mandatory retirement:
Forcing an employee out is the same as requiring an employee to require. While lessening duties and responsibilities, demotions, and reductions in pay could cause an older employee to retire, it could also cause that same employee to claim a constructive discharge. However, there is no law that says that an older employee does not have to meet the same legitimate expectations of the job as any other employee. If an older worker is not performing as needed or required, document and treat as you would any other employee.
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Time constraints lead to a shorter than usual review this week. But, I am here for my readers with what I think are the top 5 posts from the employment law blogosphere for this week (in no particular order):
The New York Labor & Employment Law Report, with some suggestions on how to deal with employees’ social networking.
Michael Fox’s Jottings by an Employer’s Lawyer, discussing the EEOC’s recent class action filing against UPS, and the difficult position employers are in when dealing with an injured or ill employee who needs more than 12 weeks of medical leave.
Maryland Employment Law Developments, which attempts to answer the question, “How much privacy do employees really have at work?” The short answer – not much, but maybe more than you think.
Mindy Chapman’s Case in Point, on employees’ access to restroom breaks.
Paul Secunda, at the Workplace Prof Blog, who discusses the case of a New Zealand employee terminated for the egregious workplace crime of using ALL CAPS in emails.
Enjoy your Labor Day weekend. I’ll be back Tuesday with my thoughts on forced retirements under the ADEA.
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Cars need routine maintenance: an oil change every 3,000 miles, an annual inspection of the systems, and more serious TLC every two or three years. Without this service, even the best made car will die long before its time. With this service, clunkers can run for hundreds of thousands of miles.
According to a survey conducted by the Center for Urban Economic Development, the National Employment Law Project and the UCLA Institute for Research on Labor and Employment (as reported in the New York Times by as reported in the New York Times by Steven Greenhouse) many employers are not doing the routine maintenance that they should to keep their labor and employment compliance in tip top shape.
The survey of over 4,300 low-wage workers in Chicago, LA, and New York concluded:
You could dismiss this study as left-wing propaganda. I urge employers to pay attention to it for one important reason. In the Obama administration, the federal agencies that enforce workplace laws are ramping up enforcement to an unprecedented level:
What does all this mean for the average employer? There is a wonderful opportunity available to get your hands dirty in HR matters and figure out where the violations exist in your workplace before a federal agency or plaintiff comes knocking. I hope your workers weren’t among those surveyed, and I hope your workplace isn’t as bad as those included in the survey. However, every workplace needs a tune-up every now and then. Handbooks should be reviewed annually. Harassment and EEO training should be done at least every two years absent a need for more frequent training. A wage and hour audit should be completed once every two to three years. Your stance on retaliation (“Don’t do it”) should be reinforced at every opportunity.
I can’t say for certain that treating your workplace policies like your car will avoid lawsuits. But, some routine preventative maintenance will go a long way to ensuring better compliance and fewer problems.
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Until Congress gets its act together and passes the Employment Non-Discrimination Act, it is still legal to openly discriminate against employees because of their sexual orientation. For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.
Employees, though, have found loopholes in the discrimination laws to successfully bring sex discrimination claims based on non-conformity to gender stereotypes. For example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed a effeminate gay man to bring a sex harassment claim based on allegations that his co-workers called him names such as Princess and faggot.
In Pedreira and Prowel, both employees also claimed religious discrimination, asserting that their lifestyle did not comport with their employers’ conservative religious views:
The Courts disagreed. Sexual orientation discrimination is not illegal, and employees cannot use religion as a proxy for sexual orientation. Religious discrimination both precludes employers from discriminating against an employee because of the employee’s religion, and because the employee fails to comply with the employer’s religion. The discrimination, however, must be targeted at a specific religion. The plaintiffs did not allege that their religion had anything to do with their terminations, or that their sexual orientation was tied to their religious beliefs. They merely claimed that their employers’ religious beliefs frowned on their lifestyles.
It is likely that sexual orientation discrimination will be outlawed in Ohio or nationwide by 2010 at the latest. Until then, this issue is one of morals for business owners. As for me, I think it’s reprehensible that this type of misconduct still occurs in what we advertise as the cradle of freedom.
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More people are out of work at any time in the past 25 years. And, it appears that some are taking desperate measures to find new jobs. ABCNews.com reports that companies have sprung up that will sell a job hunter a fake reference: CareerExcuse.com and Alibi HQ.
It’s not newsworthy that people lie to get jobs. What is newsworthy, though, is the ease at which the desperate unemployed can find a bogus, yet legitimate sounding, employment reference. The internet has made it almost too easy for a job candidate to create an entirely fictitious, yet 100% verifiable, work history.
Employers screening job candidates need to be extra vigilant. Just as the internet has enabled companies like CareerExcuse to flourish, it also provides the tools for you to call a bluff. Don’t just take an applicant’s word that he worked for ABC Widgets for 10 years. Google the company and see if it exists. Look for an independent phone number to verify employment. A little diligence up front can go a long way to saving headaches down the road.
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Earlier this summer, the U.S. Supreme Court did away with the notion of a mixed motive termination in an age discrimination case. In Gross v. FBL Fin. Servs., the Court held that to succeed on an disparate treatment claim under the ADEA, a plaintiff must prove that age was the only cause of the challenged action. I’m not breaking ground by reporting that employers make decisions that implicate statutes other than the ADEA. And, in those decisions, there are often more than one motive present. So, does the Gross, but-for rule apply in mixed-motive cases under other statutes, such as the FMLA? Last week, in Hunter v. Valley View Local Schools (8/26/09) [PDF], the 6th Circuit gave us the answer.
Before we get into what the court ruled, it helps to understand the issue by briefly looking at exactly what happened to Eunice Hunter, a custodian for the Valley View schools. Following a car accident, Hunter had three rounds of surgery over the span of two years. Following each surgery, she missed months of work, and returned with restrictions. Ultimately, the school district placed her on involuntary unpaid leave. The superintendent gave two reasons for the termination – her excessive use of FMLA leave, and her inability to perform her job because of her permanent restrictions. The district court dismissed Hunter’s FMLA claim because the school district would have placed her on involuntary leave regardless of her FMLA leave because of the permanent medical restrictions.
The 6th Circuit, however, reversed, finding that unlike the ADEA, the FMLA authorizes claims based on an adverse employment action motivated by both the employee’s use of FMLA leave and also other permissible factors. In such cases, if the employee presents evidence that the employer discriminated because of FMLA leave, the burden shifts to the employer to prove that it would have made the same decision absent the impermissible motive.
The standards might change, but for businesses the lesson is the same (and I apologize if you’ve heard this before). Documentation is key. Whether an employer can prove discrimination via a mixed motive or an only motive, it won’t mean a hill of beans to a company if it cannot prove that it had a legitimate reason for what it did.
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This week’s review starts with some of fellow blogger’s thoughts on the passing of Ted Kennedy:
This week also had an abundance of posts on social media in the workplace. I’m thinking a lot about this topic in light of KJK’s upcoming Breakfast Briefing on this issue:
Dan Schwartz at the Connecticut Employment Law Blog is focusing on Tropical Storm Dennis and whether workplaces are ready for really bad weather.
The Delaware Employment Law Blog’s Molly DiBianca suggests that employers put a time limit (5 years, according to Molly) on the use of criminal records.
With tongue planted in cheek, Jennifer Hays at the Warren & Hays Blog lists the top 5 reasons not to do an HR audit.
Ross Runkel’s LawMemo Employment Law Blog shares his thoughts on the EEOC’s recent class action filing against AT&T for age discrimination.
Michael Maslanka’s Work Matters suggests that we consider the effect a complaint will have on our intended target before we file it.
Rush Nigut’s Rush on Business draws a lesson for trial lawyers and their clients from Tiger’s loss at the PGA.
Jay Shepherd’s Grunted Employees thinks there are 7 deadly workplace sins.
Kris Dunn – The HR Capitalist – discusses the interplay between non-compete agreements and employee talent.
Wage & Hour Counsel examines the Department of Labor’s internal techniques and strategies for conducting wage and hour investigations.
According to World of Work, in Washington State it’s ok for an employer to fire employees who complain about their boss.
Nolo’s Employment Law Blog reports that managers may be personally liable for unpaid wages if a company goes bankrupt.
Jill Pugh’s Employment Law Blog discusses the recent uptick in pregnancy discrimination claims.
Michael Haberman’s HR Observations, on sexism.
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Although Allen’s unauthorized breaks may have been to pump milk, Allen could not properly engage in such actions without her employer’s knowledge and permission. The [laws] mandate that an employer treat pregnancy with neutrality, but not preferentially.Justice Pfeifer, dissenting, offers some key questions that he thinks a jury should have been given the opportunity to answer:
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Can an employee sue you for conclusions reached during an internal harassment complaint? According to the 6th Circuit in Courie v. Alcoa Wheel & Forged Products (8/18/09) [PDF], the answer is no.
Someone left an inappropriate note on an Alcoa cafeteria table where African-American employees sat. Alcoa’s HR department interviewed Courie during its investigation. Courie could not recall the name of the person sitting with him at that table on the day the note was left. Because he could not recall his co-worker’s name, he referred to him as “Jew Boy.” After the interview, Alcoa later sent Courie a warning that it considered that term “racially offensive.” In response, Courie filed a grievance with his union.
Courie later learned that Alcoa and his union had considered settling his original dispute by removing the discipline in exchange for a concession that the statement was inappropriate and that Alcoa reacted appropriately. Based on that proposed settlement, Courie sued Alcoa and his union. claiming discrimination, intentional infliction of emotional distress, and defamation.
The court upheld the lower court’s decision dismissing all of Courie’s claims:
The discrimination claim failed because the settlement agreement was not an “adverse action.” Indeed, according to the court, it was the opposite of adverse – it proposed to remove the traces of the original written warning from his record.
Because the proposed settlement agreement was not discriminatory, it could not support a claim for intentional infliction of emotional distress.
While the court did not address the defamation claim, I’ve previously noted that employers enjoy a (qualified) privilege for statements made during internal investigations.
So, what does this mean for employers? Reasoned rationales for the conclusions reached and discipline imposed during an internal investigation are paramount. The target of an investigation should not be able to come back at you for discrimination, defamation, or anything else in the kitchen sink if all your ducks are in a row.
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For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.Do you like what you read? Receive updates two different ways:
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