The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
Genetic information includes information about an individual's genetic tests and the genetic tests of an individual's family members, as well as information about any disease, disorder, or condition of an individual's family members (i.e. an individual's family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.
The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn't tell the employer anything about someone's current ability to work.
Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee's genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee, such as a client or customer.
Under GINA, it is illegal to fire, demote, harass, or otherwise "retaliate" against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.
]]>The U.S. Equal Employment Opportunity Commission (EEOC) will publish a proposed rule that would make several significant changes to the definition of the term "disability" under the Americans with Disabilities Act.
The proposal would revise the EEOC's regulations to conform with the ADA Amendments Act of 2008 (ADAAA), which makes it easier for individuals seeking protection under the ADA to establish that they have a disability. The proposed regulations include revised definitions of some key terms under the definition of "disability."
The EEOC will be publishing a Notice of Proposed Rulemaking this week and will be seeking public comment for 60 days.
In the NPRM, the EEOC will emphasize that:
The EEOC says the regulation also provides a more straightforward way of demonstrating a substantial limitation in the major life activity of working, and implements the ADAAA's new standard for determining whether someone is "regarded as" having a disability.
In addiiton, the proposed regulation identifies impairments that consistently will meet the definition of "disability:
Note: The list isn't an exhaustive one, so examples not listed in the proposed regulation could still consistently meet the definition of disability.
]]>The PDA amends Title VII to prohibit an employer from treating pregnancy, childbirth, or related medical conditions any differently than it treats other temporary disabilities for purposes of employment, including hiring, firing, promotion, seniority, leaves of absence, benefits, pay increases, and other terms or conditions of employment.
The PDA does not require employers to treat pregnant employees in any special manner with respect to employment-related matters, to establish any new programs where none currently exists, or to provide pregnancy-related disability leave to any employees.
Employers with at least 15 employees on each working day in each of 20 or more calendar weeks in the current or preceding calendar year are covered by the PDA. In addition, an employer with a significant number of part-time employees might be covered, even though fewer than 15 individuals are scheduled to work on any one day.
An employer may not pre-establish the following.
Reinstatement rights of women on leave for pregnancy or pregnancy-related reasons are protected to the extent employees on other types of disability leave have such rights. Such rights include return to the same or an equivalent position, seniority, and retirement benefits.
Any benefits provided to employees with temporary, long-term, or permanent disabilities must also be available to employees disabled by pregnancy-related conditions. Examples: paying disability benefits, health and life insurance premium payments, pension accrual, and profit-sharing plans.
If an employer offers different health plans for employees to choose from, each plan must cover pregnancy-related conditions and the deductible for such conditions must be the same.
If an employer's insured health plan denies coverage for pre-existing conditions, that plan may deny coverage for a pregnancy that exists at the time that the coverage became effective. However, an employer is prohibited from applying any such limit differently for pregnancy-related conditions than for other medical conditions.
The PDA does not require that an employer health plan provide dependent or spousal coverage. If a plan restricts coverage to employees, additional coverage is not required.
If the medical expenses of employees' spouses are covered under the employer's plan, pregnancy-related expenses of a male employee's wife must receive the same coverage. However, a pregnant spouse does not necessarily have to receive the same coverage as a pregnant employee.
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The new law, know as the ADA Amendments Act of 2008 (ADAAA) reverses several Supreme Court rulings which had narrowed the ADA's scope of protection. While the new legislation retains the basic definition of "disability" provided by the ADA, it supplements that definition with new language intended to broaden significantly the meaning of disability under federal law.
Disability is defined under the ADA as:
The Supreme Court had narrowly interpreted the meaning of "substantially limits" under the ADA's definition, ruling that the impairment must prevent or severly restrict the employee in the performance of a major life activity. The ADAAA, however, relaxes this strict standard, requiring that "substantially limits" be more broadly interpreted consistent with the purposes of the new legislation. In amending the ADA, Congress expressly stated its intent to repudiate the narrow holdings of the Supreme Court and the lower federal courts on this issue, and empowered the U.S. Equal Employment Opportunity Commission (EEOC) to give meaning to the new, broader interpretation.
The ADAAA broadens the definition of "major life activity," and expressly provides the following examples: seeing, hearing, eating , sleeping, breathing, learning, reading, concentrating, thinking, communicating, working, caring for oneself, and performing manual tasks.
The ADAAA also broadens the definition of "disability" by specifying that an impairment that is episodic or in remission is a "disability under the ADA," if it would substantially limit a major life activity when active.
The ADAAA further stipulates that employees do not have to prove that an impairment actually limits or is perceived to limit a major life activity. Instead, employees can satisfy the ADA's "regarded as" by merely establishing they were subjected to a prohibited action based on an actual or perceived impairment.
]]>They are called "dead peasant" policies -- secret life insurance policies taken out on unwitting employees -- and they have now triggered civil litigation.
In Oklahoma, a federal judge recently ruled that employees have legal grounds to sue an insurance company for selling and maintaining secret life insurance policies on their lives. The plaintiffs claim that the insurance company unlawfully misused their names, Social Security numbers and other personal information to market and sell their product. Havenstrite v. Hartford Life Ins. Co., No. 4:2008cv00410 (N.D. Okla.). If you have been a victim of a "dead peasant" policy, contact our employment lawyers today.
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