Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

Thirty-four percent of adults in the United States presently qualify as obese under standards adopted by the Center for Disease Control.  Morbid obesity (defined as having a body weight more than 100% over the norm) and obesity caused by a psychological disorder are "disabilities" as defined by the Americans With Disabilities Act (“ADA”), according to the EEOC.  Lawsuits involving morbid obesity are on the rise and come in many shapes and sizes.  The most common involves a “substantially limiting” health condition such as diabetes, heart disease, and hypertension.  Others involve employers who assume an obese employee would pose a direct threat to the health and safety of him or herself or other employees if he or she were to carry out the essential functions of the job.

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On September 28, 2011, an Illinois federal district court dismissed the putative class action claims brought by U.S. Equal Employment Opportunity Commission (EEOC) against United Parcel Service Inc. (UPS) in a case where the EEOC alleged that UPS’s 12 month medical leave policy violated the Americans With Disabilities Act by not providing reasonable accommodations to disabled employees.  (EEOC v. United Parcel Service Inc., N.D. Ill, No. 1:09-cv-05291.)

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When it comes to disabled access and the Americans with Disabilities Act, it’s not just ramps and restrooms anymore. Now plaintiffs, the U.S. Department of Justice and disability rights groups are looking beyond brick-and-mortar issues and are seeking accessibility to company websites, particularly those websites where business is transacted.

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The EEOC recently released an informal discussion letter suggesting that employers may be obligated to do more than just maintain a separate file for employee medical records, especially when those records are in an electronic format. Both the Americans with Disabilities Act of 1990 (“ADA”), as amended, and the Genetic Information Non-Discrimination Act of 2008 (“GINA”) require employers to maintain a confidential medical record, which is separate from the employee’s other personnel file(s), for information about the employee’s medical conditions, medical history or “genetic information.” The statutes do not, however, specify how such records are to be maintained or what level of security must be in place to protect the confidentiality of medical or genetic information.

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In recent months the federal government has announced a number of initiatives designed to increase the employment of individuals with disabilities in both the private and government sectors.  These measures send a clear message to employers: audit your practices now to ensure adequate outreach and accessibility to the disabled.

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In a pro-business decision, the Los Angeles Superior Court Appellate Division recently established state standards for damages and standing for California public accessibility cases in Mundy v. Pro-Thro Enterprises, 2011 WL 600619 (Cal. App. Dep't Super. Ct. Jan. 7, 2011).

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In Byron Chapman v. Pier 1 Imports (U.S.), Inc., --- F.3d --- (9th Cir. Jan. 7, 2011), a unanimous Ninth Circuit en banc panel reversed the trial court finding that the plaintiff had standing to pursue claims for alleged barriers against Pier 1, instead holding that plaintiff’s complaint was "jurisdictionally defective" and that plaintiff "lacked standing at the outset of this litigation to assert the ADA claims."  "This Case is important because the decision helps to rein in ‘drive by ADA litigants’ who file multiple lawsuits for profit, but have no real stake in the matters presented,” said lead appellate lawyer Laura Franze, who is Co-Chair of Hunton & Williams' national employment group. “The Court adopted Pier 1’s position that -- in order to comply with Article III standing requirements --- an ADA plaintiff must not only clearly identify the alleged accessibility violations, but also connect the dots to show how he personally suffered discrimination under the ADA on account of his disability. ADA complainants cannot depend on formulaic recitation of the elements of a claim.”

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With the closing of the first month of the federal government’s 2011 fiscal year, employers may be curious to know what the EEOC’s litigation landscape looks like.  For instance, what type of employers are being sued, and for what?  Importantly, what can employers learn from the EEOC’s litigation efforts?  A review of recently filed lawsuits that the EEOC has announced in its October press releases found that few claims have been brought under recently passed laws and only a small portion of the defending employers are Fortune 500 companies.

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Earlier this summer the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties held hearings on H.R. 3721, a/k/a the “Protecting Older Workers From Discrimination Act” (POWADA), which was introduced in the wake of the Supreme Court’s controversial 5-4 decision in Gross v. FBL Financial Services, Inc.  In the decision written by Justice Clarence Thomas, the Supreme Court held that under the Age Discrimination in Employment Act (ADEA), a plaintiff pursuing a disparate treatment claim for age discrimination must prove, by a preponderance of the evidence, that the employee would not have suffered an adverse employment action “but for” his age.  The Court held that the text of the ADEA did not authorize “mixed motives” claims, and that the burden of persuasion does not shift to the employer, even when there is evidence that the plaintiff’s age was a motivating factor in the adverse decision.

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As was predicted following the passage of the ADA Amendments Act of 2008 (ADAAA), which went into effect in January 2009, there has been a subsequent surge in the filing of lawsuits under the Americans with Disabilities Act (ADA).  Lawsuits brought under the ADA now comprise the highest percentage of claims filed by former employees.  When compared with the number of ADA-related lawsuits filed in the first three months of 2009, there has been a nearly 40% percent increase in the number of ADA-related suits filed in 2010  during the same period.  Moreover, the second quarter of 2010 saw the number of ADA-related lawsuits increase by 15% over those filed in the first quarter.

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Establishing work rules and job descriptions for employees not only provides employees with a better understanding of job expectations, but also helps protect employers from liability for discrimination and other employment-related claims.  In Budde v. Kane County Preserve, No. 09-2040 (7th Cir. March 4, 2010), the U.S. Court of Appeals for the Seventh Circuit affirmed a district court’s ruling that the ADA does not protect an employee who violates workplace rules from discipline up to and including termination, even if the violation is caused by a disability.

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Bending over backwards to help an employee with a disability can leave the employer in an awkward position.  With changes to the Americans With Disabilities Act (“ADA”) and its regulations last year, employers may be more likely to offer accommodations.  More conditions will be deemed to fall within the definition of a disability, and employers likely will err on the side of providing accommodations.  However, employers should continue to exercise sound judgment in deciding what accommodations to offer.

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A panel of the U.S. Court of Appeals for the Ninth Circuit recently held in Alvarado v. Cajun Operating Company, that compensatory and punitive damages are unavailable to a  plaintiff who brings an ADA retaliation claim.  Consistent with a prior Seventh Circuit ruling  in Kramer v. Banc. of Am. Sec., 355 F.3d 961 (2004), the Alvarado Court found that the ADA specifically excludes a retaliation claim under Section 12203 from awards of  compensatory and punitive damages.  The court reasoned that Section 1981(a)(2) of the ADA does not list claims brought under section 12203 as one of the enumerated categories of claims meriting compensatory and punitive damages.  Since the statute specifically enumerated other claims under the ADA where punitive and compensatory damages are proper remedies, the court found that Congress intended for those claims, and not those under Section 12203, to get punitive and compensatory damages as a remedy.  In addition, the court held that since ADA retaliation claims are only subject to equitable relief, no jury trial is available.

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What to do with an employee who tested positive for marijuana used to be an easy decision.  That is not necessarily the case anymore.

Thirteen states have legalized the use of marijuana for medical purposes.  Some of these states require employers to accommodate the medical use of marijuana.  Although use of marijuana remains illegal under the federal Controlled Substances Act regardless of whether it is medically prescribed, the U.S. Department of Justice announced in October 2009 that federal agents will target users and distributors of marijuana only when they violate both federal and state laws.  In addition, employers may have to consider whether they must allow employees to use medical marijuana as a reasonable accommodation pursuant to the federal Americans With Disabilities Act (ADA).  These developments have caused employers to re-examine their “zero tolerance” policies with regard to drug use by employees.

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President Obama recently nominated Victoria A. Lipnic for a seat on the five-member Equal Employment Opportunity Commission (EEOC).  Lipnic is Republican, with an extensive background in employment law.  During the prior Administration, she served as Assistant Secretary of Labor for Employment Standards from 2002-2009.  In that capacity, Lipnic oversaw the Department of Labor’s largest agency, and led the teams that revised the Part 541 overtime regulations under the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA) regulations.
 

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Companies doing business in California, particularly retailers, should be aware of a recent revision to the California Financial Code that sets out new accessibility requirements for point-of-sale devices.  A point-of-sale device includes any device used by a customer for the purchase of a good or service with a debit, credit or cash card where a personal identification number (PIN) is required. 

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