Recently in Employment Law News Category

If anyone had any doubts as to how harmful mandatory and binding arbitration is in employment cases, just watch this video.  Not only does the arbitration deny the wronged employee's right to her day in court but it undermines the nation's employment laws designed to protect American workers.  The undermining occurs when the arbitration is done in private with the result sealed, thereby preventing the public from knowing what happened and removing the incentive for the employer to take corrective action.  Watch the video.

Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is illegal to discriminate against employees or applicants because of genetic information.  The law became effective on November 21, 2009.  Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

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.

Definition of "Genetic Information"

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.

Discrimination Because of Genetic Information

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.

Harassment Because of Genetic Information

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.

Retaliation Because of Genetic Information Discrimination

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 US Supreme Court handed down some bad news for plaintiffs in age discrimination cases brought under the federal Age Discrimination in Employment Act (ADEA).  In a 5 to 4 decision, the Court held that a worker has to prove that age was the key factor in an employment decision even if there is some evidence that age played a role.  In discrimination cases brought under Title VII, the worker needs to establish that discrimination on the basis of for example national origin was a motivating factor.  There is a significant difference between proving discrimination was the key motivating factor versus a motivating factor and it makes the plaintiff's case more difficult to prove and win. For the plaintiff to now prove age discrimination, he or she must prove that "but for" age discrimination, the adverse employment action would not have occurred.  The case is Gross v. FBL financial Services and the majority opinion was authored by Justice Thomas. In his dissenting opinion, Justice Stevens commented that the but for standard was previously rejected by the Court and by Congress and that the Court misinterpreted the statute and has engaged in unnecessary lawmaking.  Unless and until Congress overrides the decision, plaintiffs pursuing federal age discrimination cases will have to deal with the but for causation standard.

 

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 definition of disability--an impairment that poses a substantial limitation in a major life activity--must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis;
• Major life activities include "major bodily functions";
• That mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and
• Impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would "substantially limit" major life activities when active.

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:

• Deafness,
• Blindness,
• Intellectual disability
• 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.

Note: The list isn't an exhaustive one, so examples not listed in the proposed regulation could still consistently meet the definition of disability.

Can disabled workers be terminated after being away from work for more than the 12 weeks under the federal Family and Medical Leave Act (FMLA)?  The answer is usually no. Often these workers have been informed by their company's HR department that if they cannot return to work after 12 weeks, they will be terminated.  In most cases the extended unpaid leave will be considered a reasonable accommodation of a disability.  Therefore, the failure to provide the accomodation and the resulting termination violates the Americans With Disabilities Act (ADA) and legal action should be taken.

The Third Circuit Court of Appeals has held that trial judges can increase a plaintiff's award to account for the increased taxes she would have to pay on a lump-sum back pay award.  With the decision, the Third Circuit has joined the Tenth Circuit and rejecting the reasoning of the D.C. Circuit which ruled in 1994 that winning plaintiffs are never entitled to such an award.  The Third Circuit in the case of Eshelman v. Agere Sys. Inc., 2009 WL 223858 (3d. Cir. Jan. 30, 2009) found that one of the main purposes of the employment discrimination statutes is to make whole those who have been injured as a result of illegal bias on the job.  Back pay awards are taxable.  Consequently, employees receiving back pay awards may be subject to higher taxes if they receive a lump sum back pay award in a given year.  In other words, the lump sum back pay award can place the employee in a higher tax bracket for that year.  In order to make the employee while, the defendant should be required to pay the increased tax burden.  In addition, the defendant is responsible for prejudgment interest which compensates the plaintiff for the loss of the use of the money the employee would have earned.

On September 25, 2008, President Bush signed new legislation amending the landmark Americans with Disabilities Act (ADA) to take effect on January 1, 2009. The amendments broaden the meaning of disability and in turn expands the legal protection for disabled workers. Here are some of the important highlights.

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:

1. a physical or mental impairment that substantially limits one or more major life activities,
2. a record of such an impairment, or
3. being regarded as having such an impairment.

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.

President Obama signs into law the Ledbetter Fair Pay Act. The Ledbetter Fair Pay Act overturns a Supreme Court ruling by re-starting the statute of limitations clock every time a worker gets a paycheck or other compensation that is traceable to discrimination -- even if that original discriminatory decision happened years or decades before.  It is important legal protection for all female employees that should improve the pay gap between male and female workers.

In a decision with implications for the nation's 24 million diabetics, a federal appeals court ruled that a Type-2 diabetes patient was entitled to the protections of the Americans With Disabilities Act. The plaintiff filed suit alleging that his public-utility employer discriminated against the disabled in pushing him out of his job. The 9th Circuit Court of Appeals ruled that a lower court had wrongfully dismissed the lawsuit as involving a disease, not a disability.