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

On September 27, 2011, the EEOC filed suit against BAE Systems alleging that the company violated the ADA by firing a morbidly obese employee at one of its manufacturing plants.  The employee, who weighed more than 600 pounds, sorted parts on a raised platform, drove a forklift, and performed deskwork.  In its complaint, the EEOC alleged that BAE terminated the long-term employee, after telling him that it “had reached the conclusion that he could no longer perform his job duties because of his weight.”  During the EEOC’s investigation, the company stated that the employee had difficulty bending, stooping, and kneeling.  It also contended that the employee had difficulty walking from the parking lot to the plant, from which it concluded that he had trouble walking around the facility.  BAE denied the employee's request to be moved to another position.  It also allegedly made no attempt to discuss reasonable accommodations.

At present, there are no federal laws designating weight as a “protected characteristic,” like race, sex, and religion under Title VII of the Civil Rights Act of 1991, or prohibiting against discrimination in employment on the basis of obesity.  Further, with the exception of Michigan and a few local jurisdictions (e.g., San Francisco), state and local laws likewise do not afford protection against obesity discrimination.  The EEOC’s suit against BAE, however, highlights an avenue that obese individuals may pursue for protection - the ADA.  Under the ADA, as revised by the ADA Amendments Act of 2008, an individual is considered disabled if he or she has a disability, has a record of a disability, or is regarded as disabled, and that disability “substantially limits one or more of [the individual’s] major life activities.”

Proactive employers can adapt their practices and policies to address this developing issue.  In addition to combating stereotypes about obese workers, employers should recognize obesity as a very real, potential disability that may require reasonable accommodation through the “interactive process” called for by the ADA.  Employers may also consider other measures that address the root of obesity, such as implementing voluntary, private weight reduction programs or developing a healthier workplace culture, for example, by stocking vending machines with water and low-fat snacks, offering fitness fairs and health screenings, and partnering with local athletic clubs to offer employee discounts.

Along with the two named individuals, the EEOC sought to represent a class of unidentified individuals who allegedly were disabled under the ADA and purportedly had been subjected to UPS’s medical leave policy, which the EEOC claimed violated the ADA by failing to provide leaves of absence longer than 12 months.  The court had already dismissed the EEOC’s original complaint in September 2010, noting that the class allegations in the complaint were “so threadbare, conclusory and formulaic that it does not even allow the court to reasonably infer” that the proposed class members had any basis for the claim.  The EEOC filed an amended complaint that same month, again alleging generally that each unidentified class member was disabled and could perform the essential functions of his or her job with or without reasonable accommodation, but for the application of UPS’s allegedly “inflexible” medical leave policy.  UPS promptly filed another motion to dismiss, arguing that the amended complaint still failed to plead sufficient facts to support its allegations.

The court agreed, finding that the EEOC’s amended complaint used the same “conclusory, formulaic language” with respect to purported class members that was rejected by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).  The court noted that the amended complaint failed to allege “specific facts regarding what the unidentified class members’ disabilities are, the conditions of their termination or leave, or what accommodations would have been suitable for them to return to work.”  Citing EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 777 (7th Cir. 2007), the court explained that the complaint “must provide some specific description of [the protected conduct] beyond the mere fact that it is protected,” and that the allegations must “specifically indicate that the plaintiff is qualified to perform the essential functions of the job with or without reasonable accommodation.”  Although the EEOC argued that its allegations satisfied Twombly because the amended complaint put UPS  on notice of its claims against the company, it supported its argument with cases alleging violations of Title VII of the 1964 Civil Rights Act rather than ADA cases.  The court noted that pleading standards for  alleged Title VII violations (such as sex or race discrimination) were different from those involving alleged ADA violations, which must provide adequate detail of an employee’s qualifications to perform the essential functions of his or her job.

The EEOC also argued that identifying all class members before filing a claim might cause employers to stonewall investigations.  The court rejected this argument, pointing out the “considerable gulf between stating a plausible claim with sufficient detail to provide fair notice and identifying every single potential class member.”  The court also emphasized the EEOC’s obligation to investigate and conciliate claims before suing.  Specifically with respect to the EEOC’s “stonewalling” argument, the court pointed out that the agency also has subpoena power, which “provides a strong antidote to the EEOC’s professed concerns about concealment of relevant information.” Considering the EEOC’s powers and duties, the court noted that the “EEOC both can and should do better in presenting its class allegations so that they set forth in more detail the factual basis for their ADA claims.”

As to the EEOC’s additional argument that it did not have to identify each class member individually because it is exempt from following the requirements for class certification of FRCP Rule 23, the court found that the “EEOC  is not exempt from the standard pleading requirements” of Rule 8 of the Federal Rules of Civil Procedure and the EEOC failed to cite any authority to suggest otherwise.

The court’s decision permits the EEOC to pursue the detailed claims it asserted on behalf of the two named individuals, and gives the EEOC “one final opportunity” to file within 21 days a motion for leave to file a second amended complaint “if it believes that it can cure the pleading defects.”

This decision has significance not just for employers who are under attack by the EEOC for maintaining leave policies under which employees are subject to termination after a set period of time, but also for employers who are facing pattern or practice claims.  The good news is that some trial courts are becoming reluctant to allow the EEOC to pursue nationwide class actions without at least complying with basic pleading requirements applicable to every ADA plaintiff.  On the other hand, employers facing pattern-and-practice investigations should not be surprised if the agency soon gets more aggressive in exercising its broad investigatory and subpoena powers to avoid similar results in the future.

In its letter, the EEOC makes a distinction between “personal” and “occupational” health information. According to the EEOC, personal health information is “information obtained in the course of diagnosis or treatment,” while occupational health information “concern[s] an employee’s ability to work.” While both the ADA and GINA sharply limit employers’ right to access personal health information, employers who lawfully utilize post-offer questionnaires or medical examinations will likely obtain personal health information in the normal course of business.  Similarly, health care facilities or other employers who provide on-site medical services might have access to both personal and occupational health information.

As the EEOC points out, the ADA and GINA authorize employers to use or disclose an employee’s confidential medical or genetic information only in limited circumstances. Those limited exceptions do not include the provision of occupational health information to healthcare workers providing non-job related medical services. Similarly, while supervisors and managers are permitted to access information regarding an employee’s work restrictions or necessary accommodations, they do not have the right to access other medical information.

Given the dichotomy between personal and occupational health information and the attendant restrictions on who can access what information, the EEOC suggests that maintaining both types of information in a single medical record “presents a real possibility” that employers are violating the ADA or GINA. According to the EEOC, employers who maintain medical records in an electronic format that allows individuals with access to the records to view all the information contained in the record are even more likely to be in violation of the ADA, GINA, or both.

The EEOC’s letter raises two issues for employers in possession of both occupational and personal health information. First, the EEOC’s letter suggests that employers need to distinguish between occupational or personal health information. Making this distinction is not always easy.  Second, once the employer determines what information is occupational and what information is personal, the employer has to determine whether it has appropriate safeguards in place to prevent unauthorized access to or disclosure of either category of information. For paper files, this might mean maintaining separate folders in separate locations. For electronic medical records, an employer may need to erect an electronic “wall” so that the users of the system only have access to the relevant and appropriate information.

The EEOC’s letter increases the costs and complexity of maintaining confidential employee medical records. Instead of a simple partition between medical and non-medical records, employers may now have to consider establishing additional privacy protections for different types of medical information.

The Equal Employment Opportunity Commission (EEOC) recently heard testimony, on March 15, 2011, on the employment of persons with mental disabilities.  The EEOC believes this group continues to experience significant barriers to employment.  And, of course, there is the very notable recent publication of the final regulations implementing the Americans with Disabilities Act Amendment Act, which are discussed in more depth in a separate article.  

The Office of Federal Contract Compliance Programs (OFCCP), has also been focused on the employment of persons with disabilities.  Since 2010 a number of OFCCP initiatives have placed increased scrutiny on whether and how federal contractors employ disabled persons.  These initiatives include the announcement of new audit priorities that focus on disabled persons, and a Notice of Proposed Rulemaking to strengthen the regulations implementing Section 503 of the Rehabilitation Act of 1973, which helps people with disabilities obtain and keep employment.  The OFCCP has also created a website of its own to promote awareness of disability issues to the general public.  This follows the OFCCP’s earlier guidance directing that employer’s online application systems must be made accessible to persons with disabilities.

In early March, the DOL posted an online “toolkit” of resources to help federal agencies become model employers of persons with disabilities.  The toolkit helps implement Executive Order 13548, which was signed by President Obama in 2010 to increase the federal employment of disabled persons.  Federal agencies have until April 11, 2011 to submit hiring plans under the Order for increasing the employment of people with disabilities. 

In February of this year, a new website was launched by the Employer Assistance and Resource Network (“EARN”).  Called “Ask EARN.org,” the website assists employers with “recruiting, hiring, retaining and advancing qualified individuals with disabilities.” EARN is part of the National Employer Technical Assistance, Policy, and Research Center at Cornell University, which is funded by the U.S. Department of Labor (DOL)’s Office of Disability Employment Policy (ODEP). The website links employers to several resources, including a Workforce Recruitment Program, a job-matching database of prescreened applicants, a monthly newsletter and an online reference desk. 

The writing is on the wall for increased enforcement activity under the federal disability laws.    Now is the time to audit employment practices, such as: 

• application processes, for accessibility to disabled persons, including online systems
• targeted outreach to recruit disabled candidates
• review of job descriptions, for business necessity of requirements
• EEO policies, to ensure they include, and are accessible, to the disabled
• reasonable accommodations, including an interactive dialogue with employees,
• maintenance and retention of separate, confidential medical files

Generally speaking, the ADAAA will make it easier for individuals to establish ADA protection. The ADA’s three-pronged definition of “disability” remains the same:

• a physical or mental impairment that substantially limits one or more major life activities;
• a record (or past history) of such an impairment; or
• being regarded as having a disability.

However, the new law makes it clear that the definition must be interpreted in favor of broad coverage, extending protection to many individuals who might have been previously denied coverage. 

Some specific highlights include:

• Relaxing the definition of “substantial limitation.” Now, the impairment need not prevent or significantly restrict a major life activity to be considered substantially limiting.
• Expanding the scope of “major life activities” to include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The regulations also state that major bodily functions include the operation of an individual organ within a body system (e.g., the operation of the kidney, liver, or pancreas).
• Specific examples of impairments are listed in the regulations and include deafness, blindness, intellectual disability (formerly termed “mental retardation”), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
• Positive effects from an individual’s use of one or more “mitigating measures” (other than ordinary eyeglasses and contact lenses) must be ignored in determining if an impairment substantially limits a major life activity. However, mitigating affects may still be considered for purposes other than determining whether the impairment is substantially limiting.
• Coverage is extended to impairments that are episodic or in remission (such as cancer and epilepsy), so long as the impairment is substantially limiting when active.

The regulations also make it easier for individuals to establish coverage under the “regarded as” prong of the definition of disability. The focus is on how a person has been treated because of a physical or mental impairment, rather than on what an employer may have believed about the nature of the person’s impairment. The regulations clarify, however, that an individual must be covered under the first or second prongs (actual or record of disability) in order to qualify for a reasonable accommodation.

In Mundy, a wheelchair user and serial ADA litigant, filed a complaint against the owner of a car wash alleging that when he visited the restroom at the facility, he could not see himself in the mirror because it was mounted too high. Seeking damages, attorney fees, and costs, the plaintiff alleged violations of California’s Disabled Persons Act (DPA) and Unruh Act. Notably, any violation of the federal Americans with Disabilities Act of 1990 (ADA) is also a violation of the DPA and the Unruh Act.

The trial court dismissed the case on the grounds that the plaintiff failed to prove that he suffered actual injury, embarrassment, humiliation or discomfort as a result of the placement of the restroom mirror. Moreover, the trial court admitted evidence that the plaintiff had previously filed more than 300 similar lawsuits as well as evidence of his earnings from these proceedings. The trial court entered judgment in favor of the car wash and the plaintiff appealed.

On appeal, the reviewing court noted that in order to recover statutory damages and attorney fees as a result of a construction-related accessibility claim, the California Civil Code requires the plaintiff to prove that he was denied full and equal access after personally encountering an ADA violation. The court held that the plaintiff was not entitled to judgment as a matter of law because, even though he established a violation of the ADA, he failed to offer any evidence that he experienced difficulty, discomfort, or embarrassment as a result of the violation.

The reviewing court also held that the trial court did not abuse its discretion when it admitted evidence of the plaintiff’s 300 previously filed lawsuits. The court noted that even if the admission was an abuse of discretion, it did not merit reversal because the plaintiff failed to show that he would have obtained a more favorable decision if the evidence were not admitted. Rather, the court found that the plaintiff’s failure to offer any evidence of difficulty, discomfort, or embarrassment would have barred recovery even without the prior lawsuit evidence.

This case signals judicial resistance to ADA claims where a plaintiff fails to establish standing and eligibility for damages with sufficient evidence of both an ADA violation and an actual injury as a result of that violation.

The most prominent of these emerging types of claims is retaliation.  Retaliation claims have been filed with the EEOC at a steadily increasing rate in recent years. In 2010, for the first time in history, retaliation claims became the most frequently filed type of claim, even outnumbering claims of race and sex discrimination.  Retaliation claims can be problematic for employers. An EEOC spokeswoman was quoted by the Wall Street Journal as saying, retaliation “is easier [for an employee] to prove.” Adding to employers’ concerns, the Supreme Court recently expanded the rights of third parties to file retaliation claims. See Thompson v. North American Stainless, LP, 562 US __, 131 S. Ct. 863 (U.S. 2011). As retaliation claims continue to gain notoriety, and as employees become more aware of their rights to file this type of claim, the number of retaliation claims filed with the EEOC will assuredly continue to grow in the foreseeable future.

Another emerging type of claim about which employers should be concerned is disability discrimination. In 2010, the number of disability discrimination claims filed with the EEOC increased by nearly 20%. Due in large part to the enactment of the ADA Amendments Act of 2008 (ADAAA), this surge will continue as the EEOC publishes its final regulations concerning the ADAAA. These final regulations are expected to establish a broad definition of “disability,” thereby expanding the pool of qualified individuals who can file claims of disability discrimination. In fact, the final regulations reportedly will include a list of per se disabilities that cannot be challenged by employers. Official publication of the EEOC’s final ADAAA regulations is expected by April 2011. If these regulations prove to be as pro-employee as is anticipated, employers undoubtedly will face an increased number of disability discrimination claims.

Employers also should take note that the number of claims under the Genetic Information Nondiscrimination Act (GINA) may rise significantly in 2011. GINA is relatively new law and provides a new type of claim to individuals who believe they have been discriminated against because of their genetic information. In fact, the EEOC handled its first GINA claims in 2010. Although the number of GINA claims filed last year was relatively small (just 201 in total), employers should not overlook the expected emergence of this claim type. Since the end of the 2010 fiscal year, the EEOC has issued its final GINA regulations, which took effect on January 10, 2011. See EEOC Issues Final Regulations On The Genetic Information Nondiscrimination Act. Without question, employees will become more informed about their rights under GINA and more ambitious to test their rights under this new law.

It is critical that employers take appropriate steps to protect themselves against these emerging claims. Employers should update policies to correspond with the recent changes in law. Taking proactive steps now can contribute significantly in avoiding potential claims and in defending against claims filed with the EEOC and related local agencies.

In his complaint, Chapman alleged that he was "physically disabled," visited Pier 1's store, and "encountered architectural barriers that denied him full and equal access." Attached to his complaint was an "Accessibility Survey" identifying a list of alleged accessibility violations that "denied him access to the Store, or which he seeks to remove on behalf of others under related state statutes."  The Accessibility Survey merely identified alleged federal and state accessibility violations "without connecting the alleged violations to Chapman’s disability, or indicating whether or not he encountered any one of them in such a way as to impair his full and equal enjoyment of the Store."  This improperly left the Court to "guess" which accessibility violations, if any, actually denied him full and equal access to the Pier 1 store. The Court, per Judge Kim Wardlaw, held that this list of alleged accessibility violations (which was not even prepared by Chapman) "cannot substitute for the factual allegations required in the complaint to satisfy Article III’s requirement of an injury-in-fact. Chapman does not even attempt to relate the alleged violations to his disability."  Thus, because Chapman lacked standing from the instant he filed the lawsuit, his complaint was "jurisdictionally defective," and the district court erred by not dismissing his claims.

Take Away

The Ninth Circuit, which in the past has interpreted remedial statutes such as the ADA favorably for plaintiffs, makes clear that the pleading standard set forth in Iqbal will be strictly adhered to in ADA cases. Courts will more carefully scrutinize Title III complaints to ensure that the plaintiffs are complaining about real issues that caused plaintiffs an actual injury. The 11-0 en banc decision helps to rein in "serial plaintiffs" and "robo-filers" who bring hundreds or even thousands of ADA Title III lawsuits for profit, but have no real stake in issues presented. ADA plaintiffs can no longer file generic, "cut and paste" lawsuits as leverage, hoping to find a hyper-technical violation of the ADA after the fact.

The EEOC recently published its annual Performance and Accountability Report for its 2010 Fiscal Year.  In its Report, the EEOC attributed “[t]his surge” in the number of charges filed “to the expanded statutory authorities that EEOC has been given with the ADA Amendments Act of 2008; the Genetic Information Nondiscrimination Act of 2008; and the Lilly Ledbetter Fair Pay Act of 2009,” as well as the “EEOC becoming more accessible, making charge filing easier and providing better, more responsive customer service.”

The number of discrimination charges filed with the EEOC likely will continue to increase into 2011.  As employers continue to feel pressure from the current economic climate to downsize and streamline their operations, it is more important than ever to follow and enforce lawful disciplinary and discharge policies, as well as ensure any leave and/or accommodation policies are compliant with the most recent amendments to the ADA, Genetic Information Nondiscrimination Act and the Lilly Ledbetter Fair Pay Act. 

For a complete breakdown of EEOC charge information by year, including the number of charges filed and the protected characteristic involved, please visit the EEOC’s website.

Voluntary Wellness Programs

The law does not prohibit wellness programs, but it places limits on them.  The law permits employers to acquire genetic information as part of a wellness program, so long as it is completely voluntary and employees cannot be penalized for failing to provide such information.  Employers are also prohibited from offering money for employees’ genetic information, but money can be offered for the completion of health risk assessments, which include questions involving genetic information.  This is permitted provided it is clear that the money will be paid regardless of whether the employees answer the genetic information questions.  For example, an employer could offer a $150 incentive to employees who complete a 100-question health risk assessment that includes 20 questions at the end about family medical history and other genetic information, so long as the employer specifies that the money will be paid to all employees who respond to the first 80 questions, regardless of whether or not they complete the remaining 20 questions on family medical history and genetic information. 

Inadvertently Acquired Genetic Information

GINA has an exception for the inadvertent receipt of “family medical history.”  The EEOC, in its commentary on the final rules, extends this exception to any genetic information an employer inadvertently receives.  Otherwise an employer could arguably be held liable for the acquisition of genetic information if, for example, it overhears a conversation where one employee tells another that her mother had a genetic test to determine whether she was at increased risk of getting breast cancer (which would constitute genetic information, but not family medical history, under the regulations).  The regulations outline a number of scenarios where this exception would be applicable, including, for example, where a supervisor learns genetic information by overhearing a conversation at the water cooler; where a supervisor receives genetic information in response to an ordinary expression of concern (e.g., “How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer, provided the supervisor does not follow up with probing questions likely to result in the acquisition of genetic information); or where the supervisor inadvertently learns genetic information by accessing an employee’s page on a social networking site which the supervisor had been granted permission by the employee to access.  The EEOC also provides “safe harbor” language for use when requesting health information as part of the FMLA and/or ADA reasonable accommodation process.  If the language is used, any receipt of genetic information will be considered “inadvertent.” 

Confidential Treatment Of Genetic Information

The EEOC makes clear that, once genetic information about employees is acquired, employers that possess the information must maintain it in files that are separate from employee personnel files and treat it as confidential medical records.  Genetic information can only be disclosed in limited circumstances, such as upon receipt of an employee’s written request or in response to a court order.  Although the regulations provide that genetic information placed in personnel files prior to November 21, 2009 need not be removed, the regulations prohibit disclosure in the same manner. 

Clarification Of Definitions Used In GINA

The definitions in GINA left many open questions.  It was unclear whether former employees would be covered and/or whether persons who become dependents by adoption or placement would be covered, for example.  The EEOC has answered both questions in the affirmative.  The EEOC has made clear that former employees are covered by the law.  This will require employers to carefully protect genetic information about current and former employees.  The EEOC has also made clear that persons who become dependents by adoption or placement for adoption are considered “family members” whose genetic information falls under GINA.  While adoptees may not be genetically related to the covered employee, the EEOC reasons that “the acquisition of information about the occurrence of a disease or disorder in an applicant’s or employee’s adopted child could certainly result in the type of discrimination GINA was intended to prohibit.”

The regulations also attempt to explain more fully the term “genetic test,” providing several examples of tests that constitute genetic tests under the statute (for example, amniocentesis and other tests used to determine the presence of genetic abnormalities in a fetus during pregnancy, testing that reveals family relationships, such as paternity tests, and testing to determine whether an individual has the BRCA1 or BRCA2 variant indicating a predisposition to breast cancer), as well as several examples of tests that do not constitute genetic tests under the statute (for example, cholesterol tests, tests for the presence of drugs or alcohol, and HIV tests). 

Next Steps For Employers

Employers are advised to immediately take the following steps to ensure compliance with GINA and its implementing regulations: 

• revise EEO policies to prohibit discrimination based on genetic information;
• train supervisors, human resources, and other hiring personnel regarding GINA compliance;
• conduct an audit of any voluntary wellness programs to ensure that their policies with respect to genetic information comply with GINA;
• revise any form requests for medical information to include the “safe harbor” language provided in the regulations; and
• remove any genetic information from personnel files and place it in confidential medical files.

The Americans with Disabilities Act Amendments Act (“ADAAA”) and the Genetics Information Nondiscrimination Act (“GINA”) have created areas ripe for litigation. Among the lawsuits announced by the EEOC during October, however, none includes a claim brought under GINA and only one suit includes a claim under the ADAAA.

Since October 1, the EEOC has announced in press releases that it has filed 19 lawsuits against private employers.  Disability discrimination and retaliation tie for the most causes of action -- each are included in seven of the 19 complaints.  Nearly all of the disability discrimination claims include a claim that the employer failed to provide the allegedly disabled employee with a reasonable accommodation.  Only one of the disability claims is brought under the ADAAA. The ADAAA requires that the definition of “disability” be interpreted broadly, and overrules the interpretive framework that Supreme Court case law had established.

The prevalence of disability discrimination and retaliation claims is not a surprise.  In the press release announcing the filing of one of the EEOC’s lawsuits earlier this month, the EEOC’s San Francisco District Director Michael Baldonado noted that, in fiscal year 2009, retaliation had overtaken race discrimination as the most often alleged cause of action.  The EEOC’s reported litigation statistics show that disability discrimination charges reached record levels in fiscal year 2009, and had increased nearly 10% over the previous year.

Sex discrimination, including sexually hostile work environment claims, was a close second behind the causes of action tied for first.  Race and religious discrimination claims were the next most prevalent causes of action, as each appeared in three of the complaints.  One race and one sex discrimination claim also alleged that the employer had paid lower wages to the charging party as compared to similarly situated employees outside of the charging party’s protected category.

Only two of the 18 defending employers (two suits have been filed against one employer) are Fortune 500 companies.  Available information suggests that about the same number of defending employers in the remaining 16 lawsuits employ less than 100 employees as employ between 100 and 10,000 employees.

The lawsuits filed this month by the EEOC suggest that (1) no particular type of employer is being targeted, and (2) employers should pay close attention to their obligations under the Americans with Disabilities Act.  If a disabled employee requests an accommodation for a disability, the employer has an obligation to discuss potential accommodations with that employee.  These suits also remind employers to ensure that employee complaints of harassment or other unlawful discrimination are responded to promptly and appropriately.  If an employee has complained about discrimination or harassment, make doubly sure that any subsequent adverse action taken against that employee is firmly based on reasons that are legitimate, non-discriminatory, and have no connection to the employee’s prior complaint.

The significant increase in the number of ADA-related lawsuits is the result of the ADAAA’s express directive that the definition of “disability” is to be construed in favor of “broad coverage.”  Not surprisingly, this change has encouraged Plaintiff’s attorneys regarding the prospects of successfully advancing a client’s ADA claim.  More specifically, the ADAAA (i) expands the definition of “disability”-- which, necessarily increases the number of individuals covered under the ADA -- and (ii) shifted the focus from whether an individual is disabled to whether and how that individual should be accommodated.  The ADAAA’s proposed implementing regulations, which are expected to become final later this summer, leaves no doubt that the operative question is no longer: Is an employee disabled?  Instead, the key question is now: What should an employer do to accommodate the employee’s disability?  For example, the proposed regulations create a list of “per se” physical and mental impairments that will “consistently” qualify as disabilities, such as cancer, blindness, deafness, epilepsy, HIV/AIDS and cerebral palsy.  Additionally, the proposed regulations clarify what it means for an impairment to “substantially limit” a major life activity or major bodily function and explain how to evaluate impairments when mitigating measures are used.   

In light of the significant increase in the number of ADA-related claims filed this year, and the prospect that these claims will increase, employers should be proactive in order to minimize potential exposure.  First, employers should conduct a policy review to ensure that their policies and practices are up-to-date with the ADAAA and its proposed regulations.  Second, employers should provide training for their human resources personnel as well as their frontline managers and supervisors regarding the ADAAA, particularly with respect to accommodation issues.  Finally, employers should review and update (or prepare new) job descriptions to ensure that they include all of the essential functions of a particular position.

In Budde, Charles Budde, the police chief for the Kane County Forest Preserve District (the “District”) in Kane County, Illinois, caused a car accident and injured two people when he drove after consuming several glasses of wine.  As a result, Budde was charged with driving under the influence and his license was suspended while the criminal process was pending.  The District fired Budde before the criminal process was complete, explaining in a letter that his termination was due to “a pattern of errors in judgment on [his] part,” inability to perform his job “due to the suspension of [his] license,” and “engaging in conduct that is below the standard expectation for [his] position.”

In response to his termination, Budde sued the District under the ADA claiming, among other things, discrimination based on his alleged disability of alcoholism.  The U.S. District for the Northern District of Illinois granted summary judgment to the District, finding that Budde was fired for misconduct, not his alleged disability. 

In making its decision, the district court further reasoned that, even if Budde did have a disability, he could not satisfy the ADA requirement of being “a qualified individual with a disability.”  The ADA regulations provide that a “qualified individual” is an individual who, despite his or her disability, “satisfies the requisite skill, experience, education and other job-related requirements” of the position and who “can perform the essential functions” of the position with or without a reasonable accommodation.  The district court found that Budde was not a “qualified individual with a disability” because he violated “clearly established work rules” when he drove under the influence of alcohol.  These work rules included the District’s Standard Operating Procedures, which prohibit officers from being publicly intoxicated and prohibit employees from violating public laws.  The district court stated that the ADA does not “protect[ ] alcoholics from the consequences of their own misconduct.” 

In affirming the district court’s decision, the Seventh Circuit agreed that Budde’s unlawful activity violated workplace rules and made him unqualified to perform the position of police chief.  In addition, the Seventh Circuit determined that Budde also was no longer qualified for the position because the “ability to operate a vehicle” was an essential job function of the position and the District provided the police chief with a car to use at all times.  The Court found that “Budde’s inability to operate a vehicle is not the result of his disability; it is a consequence of choosing to drive his car after consuming four or five glasses of wine.”

The decision in Budde tackles the complex issues of whether an individual with alcoholism is protected under the ADA.  The importance of this decision, however, lies in the Seventh Circuit’s determination that Budde could not satisfy the threshold requirement of being a qualified individual with a disability under the ADA because of his failure to follow the District’s workplace rules and his failure to satisfy the job requirements of the position at issue.

A recent decision out of Ohio provides a good illustration.  In Jacobs v. Marietta Memorial Hospital, the District Court for the Southern District of Ohio held that a hospital manager’s disability and retaliation claims would proceed to trial because the Court could not find that regular presence during core office hours was an essential function of her job. 

The manager, Ann Jacobs, had been diagnosed with bipolar disorder early in her 20 years of employment with the hospital.  Her supervisor had allowed her to work at home when needed in light of the condition.  Jacobs regularly received positive performance evaluations. 

In early 2005, Jacobs began working for a new supervisor, who concluded that Jacobs should be in the office during core business hours because she supervised other employees.  Midway through 2006, the new supervisor revoked permission for Jacobs occasionally to work from home.  When Jacobs sought permission to work at home, the new supervisor told her that she had to use paid time off and give three days notice.  Jacobs later received a poor performance evaluation, was placed on a performance improvement plan, and later was terminated for poor performance. 

Jacobs brought suit against the hospital, claiming disability discrimination and retaliation.  The hospital moved for summary judgment, arguing that Jacobs was not protected by the ADA because she could not perform an essential function of her job--regularly working in the office during core business hours.  The Court refused to dismiss the lawsuit because it could not determine that regular presence in the office during core business hours was an essential function of Jacobs’ job, given that she had worked from home sporadically for a period of eight years and had received positive performance evaluations. 

When an employee requests an accommodation due to a disability, the employer has an obligation to work with the employee to determine whether there is a reasonable accommodation that will enable the employee to perform all the essential functions of a job.  An employer is not required to eliminate an essential function in order to accommodate an employee.  If the employee is relieved of some duties as part of an accommodation, it will be difficult for the employer to establish later that such duties are essential functions of the job.  Thus, employers should be careful to preserve the job’s core functions when trying to accommodate an employee.

These budget increases will allow the EEOC and DOJ to increase enforcement efforts.  EEOC Chairman Stuart Ishimaru noted that budget increases would “allow [the EEOC] to build on the progress [ ] made in hiring frontline staff, reducing a burgeoning inventory of charges, and increasing productivity.” BNA 20 Daily Labor Report AA-8.   Furthermore, Ishimaru, who has made the EEOC’s nationwide systemic enforcement program a top priority, noted that increased funding would enable the agency to “continue [its] focus on systemic enforcement.”  BNA 20 DLR AA-8

Systemic discrimination cases typically involve an employer policy or practice that results in a disparate impact upon a group of persons in a protected class or a class action.  Such cases often focus on employer hiring and promotion policies or practices.  Both the EEOC and the DOJ’s Civil Rights Division have authority to litigate systemic discrimination or pattern or practice cases under Title VII of the 1964 Civil Rights Act.  The EEOC handles systemic discrimination cases on behalf of employees in the private and federal sector while the Civil Rights Division litigates pattern or practice cases on behalf of persons employed by state and local governments.  In addition, the EEOC also has the ability to litigate systemic discrimination cases under many of the other laws that it enforces, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act.

Systemic discrimination cases are important to the EEOC’s goal of eliminating employment discrimination because such cases often gain nationwide attention, can lead to large settlements or damage awards, and can impact a broad section of an industry or a profession.  Private employers should be aware that the EEOC often utilizes information that it gathers from individual charges and requests for information to build a case for potential systemic discrimination claims.

This Ninth Circuit ruling on remedies for an ADA retaliation claim is significant for several reasons.  The Ninth Circuit is generally one of the most pro-employee jurisdictions.  It is, therefore, noteworthy that the Alvarado Court declined an opportunity to expand the kinds of relief awarded for an ADA retaliation claim.  The court had a relatively easy opportunity to read into the ADA statute the remedy of punitive and compensatory damages for a retaliation claim, but instead used the tools of statutory construction and avoided reading language into the statute that is not already there.  In doing so, the Ninth Circuit overruled several district court decisions that previously found punitive and compensatory damages for ADA retaliation claims when it could easily have opted to uphold those pro-employee decisions.  This holding suggests that at least one panel of the court is receptive to arguments for strict statutory interpretation.  Here, the court properly followed the tenets of statutory construction -- where a statute is unambiguous, the court must interpret it as written.  The decision is an encouraging sign that strict construction arguments remain a robust defense to expansive damages claims, even in traditionally plaintiff-friendly jurisdictions.

The EEOC’s fiscal year data, which ended September 30, 2009, reflects increases in certain types of discrimination and retaliation complaints.  Notably, disability complaints increased by 10 percent, from 19,453 to 21,451; national origin complaints increased 5 percent, from 10,601 to 11,134; and religious discrimination claims increased 3 percent, from 3,273 to 3,386.  Also, retaliation charges reached a record high of 2009, going from 32,690 to 33,613 over the span of a year.  Meanwhile, although the number of age bias claims decreased from 24,582 in 2008 to 22,778 in 2009, it was still the second-highest total ever. The EEOC also reported that it recovered a record high of $294 million through administrative enforcement and mediation. 

According to Stuart J. Ishimaru, acting chairman of the EEOC, “[t]he latest data tell us that, as the first decade of the 21st century comes to a close, the commission’s work is far from finished….Employers must step up their efforts to foster discrimination-free and inclusive workplaces, or risk enforcement and litigation by the EEOC.” 

Employers will likely see similar rises in liability risks and activity in the area of discrimination and retaliation in year 2010, particularly in light of the ADA Amendments Act of 2008, which went into effect on January 1, 2009, and expands the scope of the Americans with Disabilities Act by reversing or nullifying several Supreme Court rulings that significantly narrowed the scope of protection under the ADA. Similarly, the EEOC’s Fiscal Year 2010 Congressional Budget Justification includes, as the EEOC’s objectives for Year 2010, an increased focus on combating systemic discrimination (unlawful patterns or practices of discrimination which have a broad impact on an industry, profession, company, or geographic location) as well as charges raising priority, novel or emerging legal issues in the context of race discrimination.

To help manage exposure, employers should revisit their handbooks, policies, and day-to-day practices, and should take steps to make certain that their supervisors and human resources staff are trained to both identify and properly address potential discrimination and retaliation issues.
 

Employers should not despair.  Under most state laws, employers are free to discipline or terminate employees for positive drug test results, regardless of whether they are state sanctioned medical users of the drug.  Further, the Occupational Safety and Health Act (OSHA) imposes on employers a general duty to provide a safe workplace, which arguably supports excluding individuals who are deemed to be impaired by use of marijuana.  Even under the ADA, employers need not provide an accommodation that creates a direct threat or an unreasonable risk of harm.  In addition, under the federal Drug Free Workplace Act of 1998, federal contractors and recipients of federal grants must prohibit the use of marijuana as a condition of participation.

Perhaps most importantly, courts thus far have upheld the right of employers under federal law to terminate employees for engaging in activities that are prohibited by federal law, even if such activities are permissible under state law. Following are several examples of decisions that have addressed medicinal marijuana use:

• In 2008, the California Supreme Court upheld an employer's right to fire an employee who failed a pre-employment drug screening, even though he was taking marijuana prescribed by his physician to treat chronic pain. Ross v. Ragingwire Telecomm., Inc., 42 Cal 4th 920 (Cal. 2008)
• The Montana Supreme Court held this year that a state law allowing medical marijuana does not require employers to accommodate the medical use of marijuana in the workplace. Johnson v. Columbia Falls Aluminum Co., LLC, 2009 MT 108N (MT 2009)
• The Oregon Supreme Court recently held that the employer did not have to make reasonable accommodations for an employee who used medical marijuana to treat leg spasms because the employee did not meet the statute’s definition of a disabled person, as his impairment did not substantially limit a major life activity.  Washburn v. Columbia Forest Productions, Inc, 340 Ore. 469 (Ore. 2005)

Thus, while employers must consider the ADA and state laws in deciding whether to terminate an individual for a positive drug test, there are plenty of sound arguments supporting continued enforcement of drug-free workplace policies.  To the extent an employee claims to be using the drug for medicinal reasons, the employer should consult legal counsel to determine whether any legal obligation or restriction prevents normal enforcement of the policy.

Genetic information includes information about an individual's genetic makeup or propensities (such as predisposition for medical problems) and those of an individual’s family members, and any information about diseases, disorders, or conditions that the individual’s family member has experienced.

Enforcement and remedies under GINA will be similar to those available under Title VII of the Civil Rights Act of 1964, as amended.  Thus, employers will face the possibility of increased litigation over claims of genetic discrimination.  Like other federal equal employment opportunity laws, GINA also prohibits employers from retaliating against a person for opposing or complaining about discrimination, filing a charge of discrimination, or participating in an employment discrimination inquiry, investigation or lawsuit.

Last month, the EEOC revised its “Equal Employment Opportunity is the Law” poster, which is a mandatory posting for covered employers, to include information about GINA.

Under Lipnic’s leadership, the agency made the first revisions to the union financial disclosure regulations in forty years, and the Office of Federal Contract Compliance Programs (OFCCP) issued its first compensation guidance and regulations.  Lipnic also served as counsel for the House Committee on Education and Labor.  Before her work for Congress, Lipnic spent six years as in-house labor and employment counsel for the U.S. Postal Service, then the largest employer in the country.  Most recently, 1she has been Of Counsel with law firm Seyfarth Shaw LLP.   She received a B.A. from Allegheny College in 1982, and graduated from the George Mason University School of Law in 1991.  She is admitted to the Pennsylvania bar.

In July 2009, the President named Jacqueline A. Berrien as the next Chair of the EEOC.  Berrien has a strong background in civil rights advocacy, and particularly in the area of voting rights.  Since September, 2004, Berrien has been the Associate Director-Counsel for the National Association for the Advancement of Colored People (NAACP)’s Legal Defense and Educational Fund (LDF).  In that capacity, she supervises litigation, public education, and organizational work.  From 2001-2004, Berrien was a Program Officer in the Governance and Civil Society Unit of the Ford Foundation’s Peace and Social Justice Program.  Before that, she was an attorney with the Voting Rights Projects of the Lawyers’ Committee for Civil Rights and then Assistant Counsel for the LDF, where she coordinated the areas of voting rights and political participation. 

Berrien received a B.A. with high honors in government from Oberlin College.  She graduated from Harvard Law School, where she was General Editor of the Harvard Civil Rights-Civil Liberties Law Review.  She began her legal career by clerking for the Honorable U.W. Clemon, who was the first African-American U.S. District Court Judge in Birmingham, Alabama.  She has represented African-American voters before the United States Supreme Court and various U.S. Courts of Appeals and U.S. District Courts.  She also has taught trial advocacy at the Harvard and Fordham law schools, and is an Adjunct Professor of Law at New York Law School. 

In September 2009, President Obama chose Chai R. Feldblum to fill another vacancy on the EEOC.  Feldblum is a law professor at the Georgetown University Law Center, where she has taught since 1991.  She specializes in disability discrimination and gay and lesbian rights.  If confirmed, she will serve a five-year term.  Before Georgetown, Feldblum was legislative counsel to the American Civil Liberties Union (ACLU)’s AIDS Project, where she led efforts (among others) to draft and negotiate the Americans with Disabilities Act of 1990.  She also has also been instrumental in supporting the more recent ADA Amendments Act of 2008, and is considered an expert on the proposed Employment Nondiscrimination Act, which if enacted would prohibit discrimination based on sexual orientation.

Feldblum received her J.D. from Harvard Law School and her undergraduate degree from Barnard College.  She clerked for Judge Frank M. Coffin on the First Circuit Court of Appeals and for Justice Harry A. Blackmun on the U.S. Supreme Court.

All these nominations require Senate confirmation.  They are currently pending before the Senate’s Health, Education, Labor and Pensions Committee.  Some commentators speculate that Lipnic’s recent nomination will help speed along those of Berrien and Feldblum. 

President Obama has at least one other EEOC appointment on the horizon.  He will need to replace Commissioner Constance Baker, whose term expires in 2011. 

These new EEOC appointments may lead to new enforcement and litigation goals and priorities.  The Commission already has stepped up enforcement activity and likely will continue increasing the overall number of cases filed, particularly those involving systemic discrimination.  Focus likely will turn also to reducing the EEOC’s significant backload of charges, which has more than doubled since 2004.

The requirements are designed to make point-of-sale devices usable by persons with vision impairments who may not be able to read information on a flat screen point of sale device and who would otherwise have to provide their PIN to a store employee.

Pursuant to California Financial Code § 13082:

• on or before January 1, 2010, any existing point-of-sale system . . . that includes a video touch screen or any other nontactile keypad shall also be equipped with a tactually discernable keypad or other technology described in this section.
• at locations equipped with two or less point-of-sale machines, only one point-of-sale machine shall be required to be equipped with a tactually discernible keypad or other technology on or before January 1, 2010 . . . .

A point of sale device, for purposes Section 13082, “includes any device used by a customer for the purchase of a good or service where a personal identification number (PIN) is required,” but does not include (1) an automated teller machine as defined in Section 13020(c) or (2) a point-of-sale device that is equipped to, or exclusively services, motor fuel dispensers.  Cal. Fin. Code § 13082(d). 

In order to comply with Section 13082, point of sale devices must be equipped with the following:

• a tactually discernible numerical keypad similar to a telephone keypad containing a raised dot with a dot base diameter between 1.5 millimeters and 1.6 millimeters and a height between 0.6 millimeters and 0.9 millimeters on the number 5 key that enables a visually impaired person to enter his or her own personal identification number or any other personal information necessary to process the transaction in a manner that provides the opportunity for the same degree of privacy input and output available to all individuals; or
• other technology, such as a radio frequency identification device, fingerprint biometrics, or some other mechanism that enables a visually impaired person to access the video touch screen device with his or her personal identifier and to process his or her transaction in a manner that provides the opportunity for the same degree of privacy input and output available to all individuals.

Companies doing business in California have a short notice period in which to implement changes to their point-of-sale devices.  Failure to comply with this Section by the January 1, 2010 deadline may subject a company to potential liabilities.  In order to further minimize potential liability, affected companies are also encouraged to train employees to provide appropriate interaction with visually impaired customers regarding the use of the new tactile devices.