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

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.

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.

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.