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Last Friday, the EEOC issued its long-awaited final regulations interpreting the Americans with Disabilities Act Amendments Act (ADAAA). The Commission released proposed regulations interpreting the ADAAA and asking for public comment about a year and a half ago. After reading the more than 600 comments that were submitted in response to the proposed regs, the EEOC made some key changes and additions. (You can read my previous post on the proposed regs here.)
Here are a handful of the changes I found interesting:
List of disabilities. Actually, I don't think this is much of a change, although others disagree. The proposed regulations included a list of impairments that "will consistently meet the definition of disability." Previously, courts had interpreted the ADA to require an individual assessment of the way a particular impairment affected a particular employee. Many commentators objected to the proposed list, arguing that the regulations should still require an individual analysis. The final regulations changed the wording -- in a way that many employer advocacy groups applaud -- but to me, it looks like the effect will still be the same. Rather than saying these impairments will "consistently meet" the definition, the final regulations say that they will, "as a factual matter, virtually always be found" to be disabilities, which means that "the necessary individualized assessment should be particularly simple and straightforward." Then, the final regulations list the exact same impairments that appeared in the proposed regulations.
"Regarded as" disability claims. An employee can be protected by the ADA because the employee has a disability (termed "actual disability" cases by the final regs); because the employee has a record of disability, or because the employer incorrectly regards the employee as having a disability. The ADAAA clarified that an employee making a "regarded as" claim isn't entitled to a reasonable accommodation (which makes sense, as the employee isn't claiming to have a disability), but also need not prove that the employer regarded him or her as having a disability as defined by the ADA -- that is, an impairment that substantially limits a major life activity. The final regulations state that an employee who doesn't need a reasonable accommodation and isn't challenging the employer's failure to provide such an accommodation can proceed under the rules for "regarded as" claims. In other words, an employee who is claiming discrimination (rather than failure to accommodate) doesn't have to prove that he or she has a disability.
Substantially limits. In keeping with the ADAAA directive that the EEOC should redefine "subtantially limits" in favor of broader coverage, the final regulations state that the term is "not meant to be a demanding standard." They also clarify that a person can be substantially limited in performing a major life activity even if that person is not prevented, or significantly restricted, from performing that activity. The final regulations indicate that the condition, manner, and duration of the person's performance of the activity should be examined. For example, can the person perform the activity only for a brief period? Must the person expend significant effort to perform the activity? Is it painful or otherwise difficult for the person to perform the activity? Do the side effects of medication or other treatment make it harder for the person to perform the activity?
Transitory and minor impairments. The ADAAA states that an employee may not make a "regarded as" disability claim based on transitory and minor impairments. The final regulations clarify that this is an affirmative defense, to be proved by the employer, which must show that the impairment is both minor and transitory, in fact. It's not enough to show that it's either minor or transitory, nor that the employer mistakenly believed it to be minor and transitory.
Working as a major life activity. The proposed regulations included a lengthy discussion of the major life activity of working. This section was unpopular with employer advocacy groups -- and was removed from the final regulations. It's still discussed in the Appendix to the regulations, but in abbreviated form. (Many examples that appeared in the proposed regs were similarly consigned to the Appendix in the final version.)
- a supervisor takes action, motivated by discriminatory bias, intending to cause an adverse employment action against the employee, and
- the supervisor's action is a proximate cause of the action against the employee.
- Investigate! Cat's paw liability depends on causation -- in other words, the person with the discriminatory motive must have some effect on the decision. If the decision maker independently examines the facts, the causal chain is broken. Presumably, the decision maker will uncover the discriminatory bias (and therefore decide not to take action against the employee at all). It wouldn't have been hard in the Staub case, in which these supervisors were apparently willing to tell everyone how they felt about Staub's military obligations.
- Train managers. In the Staub case, two supervisors appear to have had an ongoing campaign against an employee for wholly inappropriate and discriminatory reasons. A little training could have gone a long way here. If supervisors aren't making discriminatory statements and decisions in the first place, they won't be creating liability for the company.
- Think about settlement. For the unhappy employers that find themselves on the wrong end of a valid cat's paw claim, the Supreme Court's decision virtually guarantees that the case won't end early. Questions of motive (in a cat's paw case, the motives of at least two people: the allegedly discriminatory supervisor and the ultimate decision maker), cause, and the effectiveness of an investigation can be answered only by examining the underlying facts. If those facts are in dispute, the employer won't be able to end the case by winning a motion for summary judgment. Instead, the case will go to trial, where a jury will have to ultimately decide where the truth lies.
Today, the Equal Employment Opportunity Commission released final regulations interpreting the Genetic Information Nondiscrimination Act (GINA). The employment provisions of GINA (covered in Title II of the law) prohibit employers from discriminating on the basis of genetic information, prohibit employers from requiring or requesting genetic information from employees or family members, and require employers to keep genetic information confidential.
The final regs largely adopt the interim regs published more than a year ago, but there are some important changes and additions as well. The new material deals mostly with the exceptions to the law: situations in which employers may acquire genetic information without violating GINA. Here are some of the more important changes and clarifications:
Online searches. Employers may obtain genetic information on an employee without breaking the law if the information is acquired inadvertently or through information that is publicly and commercially available (for example, from an article in a newspaper). The final regulations clarify that these exceptions don't apply if the employer acts deliberately, including by searching for genetic information online. For example, the inadvertent exception protects an employer if a manager is Facebook friends with an employee who posts personal genetic information. It doesn't protect an employer that conducts an Internet search that is likely to yield genetic information (such as a Google search for the employee's name and a genetic disease or disorder). Similarly, an employer that acquires genetic information from commercially and publicly available sources hasn't violated the law, but an employer that accesses these sources with the intent to gather genetic information (for example, by visiting sites about genetic testing) isn't protected by the exception.
Safe harbor for employers who give warnings. The final regulations note that an employer may receive genetic information even if it doesn't request it, particularly if the employer legitimately requests medical information. For example, an employer that asks an employee to submit a medical certification for FMLA leave or documentation of a disability and need for reasonable accommodation under the ADA may also receive genetic information. In these situations, an employer's acquisition of genetic information will be considered inadvertent -- and won't violate the law -- if the employer tells the employee or health care provider not to provide genetic information. The regulations provide sample language employers can use to give this notice, in writing or orally.
Incentives for wellness programs. An exception applies to employers who offer health or genetic services as part of a wellness program, as long as employee participation is knowing and voluntary (among other things). The final regulations address what "voluntary" participation means when an employer offers incentives to participate in the program (for example, a payment for completing a health risk assessment). In this circumstance, the employer will be covered by the exception if employees are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered.
Cleaning up personnel files. The final regulations provide that genetic information placed in employee personnel files before the effective date of GINA (November 21, 2009) does not have to be removed. However, GINA's prohibitions on employer use and disclosure of genetic information applies to all such information, whether the employer acquired it before or after the law went into effect. As a practical matter, this means that employers should review personnel files, remove any genetic information contained in them, and create separate, confidential medical files for this information. (Most employers will already have confidential medical files to comply with the ADA, so this shouldn't pose much of a burden.)
Did you think the answer was an obvious "no"? Me too, but apparently an Indiana nursing home and a federal district court judge felt otherwise. The judge threw out the race discrimination case an African American certified nursing assistant (Brenda Chaney) filed against a nursing home (Plainfield Healthcare Center), despite the facts that (1) Chaney was admittedly barred from providing assistance to nursing home residents who requested "white-only" care; (2) coworkers referred to Chaney as a "black bitch" and used the N word in front of her; and (3) the basis and process for her firing were suspicious, even to Chaney's supervisor. If this isn't enough even to get a case in front of a jury, I don't know what is. The federal Court of Appeals for the Seventh Circuit felt likewise, and reinstated Chaney's case.
Statistics show that most disputes settle -- many before they turn into lawsuits, many more before a final judgment is reached, and yet more before the appeal stage. In my experience, the employment cases that don't settle are often fairly evenly matched: Both sides have some facts in their favor and some facts that hurt their claims. Because there's no way to predict an obvious winner or loser, both sides can see themselves winning. This makes it more difficult, psychologically, to settle, and sometimes leads everyone to decide they might as well roll the dice and take their chances in court. Cases in which one side clearly has the better of the argument are more likely to settle, unless one party is just dead set against it for some reason.
So what happened here? It's anyone's guess, but here's one thing that jumped out at me from the opinion: Plainfield really seemed to believe that it was entitled -- or even required -- to honor its resident's racial preference. The nursing home argued that it was simply following state and federal laws that allow patients to choose their own health care providers, and likened its situation to one in which an employer may hire based on gender for positions such as health care aides assisting with bodily functions, prison guards who will perform searches, or bathroom attendants.
There are two fatal flaws to this argument: First, Title VII recognizes that there are some positions for which it might be appropriate for an employer to hire based on gender. That's what the bona fide occupational qualification (BFOQ) defense is for. Putting on a traditional Shakespeare festival? Then you probably dont have to consider male actors to play Lady Macbeth. Hiring attendants for a communal women's fitting room? Likely the same. But race has played such an invidious role in our society that the BFOQ defense is not available when an employer makes distinctions based on race.
Second, the situations in which employers may distinguish based on gender all involve bodily intimacy or nudity. Our society recognizes this distinction based on privacy, not on a notion of hierarchy between genders. This is why we still have gender-segregated restrooms, locker rooms, and changing rooms, along with female Senators, judges, and doctors. In the past, we also had race-segregated movie theaters, lunch counters, swimming pools, drinking fountains and more, a distinction based not on privacy, but on racist notions about the inferiority of African Americans and the danger (or impropriety) of physical mingling among the races. With this opinion, perhaps notations such as "Prefers no Black CNAs" in patient charts can join these other relics in the dustbin of history.
Thanks to our friends at SHRM for highlighting this case in its weekly email newsletter.
Apparently, there's one fact that even those who specialize in providing information to others would rather keep to themselves: their weight. As reported in the Des Moines Register, Iowa librarian Lisa Bonifas refused to provide her weight (or her height) to be listed on a new identification card required by the city of Urbandale, along with her name, title, birth date, and fingerprints. The city said it got the idea from FEMA guidelines, and the information will help in identifying employees in case of emergency. Bonifas refused to provide the information, saying that it was an invasion of her privacy. The city suspended her, then fired her, for refusing to comply.
Many have commented that Bonifas's firing seems unfair, given her highly rated performance and the fact that her objection to stating her weight is widely shared. Whether you agree or disagree with the decision, however, it's hard to see any legal claims Bonifas could make here. Bonifas's objection to the requirement is based on privacy. Historically, however, weight has not been protected as a private fact: Mine is listed on my driver's license, as are the weights of people in many other states. Many commentators have pointed out that requiring people to list their weight is not that useful as a means of identification, as people lie about their weight, weight fluctuates over a person's life, and it's kind of tough to tell what a person weighs just by looking at them. All valid objections, but not the sort that can underpin a wrongful termination case for an at-will employee.
What about discrimination claims? Although obesity and its health effects may constitute a disability in some circumstances, Bonifas is not obese. If the city were making decisions based on weight, there might conceivably be a discrimination claim if that requirement screened out disproportionate numbers of employees in a protected class. According to recent data from the Centers for Disease Control, there is a racial disparity in obesity rates. If a weight requirement caused a similar disparity in job decisions and there was no legitimate business justification for the requirement, an attorney might be willing to argue over it. But again, Bonifas is not obese -- and the city wanted to list everyone's weight, not make it the basis for job decisions.
Which is not to say there's no evidence of different treatment in the way the story has been reported: Bonifas's gender -- and stereotypes about women and weight -- have featured prominently. I offer you the Des Moines Register ("I bet such a policy would never be written by a woman"), radio station KTAR ("Women are known to lie about their age or just keep it a mystery. How much they weigh can be a closely guarded secret as well"); and Inc. magazine ("Politeness dictates that you never ask a woman her weight").
A while back, I wrote a post about a disparate impact case on the Supreme Court's docket, Lewis v. City of Chicago. The case dealt with time limits: specifically, which events start the 300-day statute of limitations clock for filing a charge of discrimination with the EEOC. (To bring a Title VII lawsuit, the plaintiff employee or applicant must first file a discrimination charge with the agency.) In this case, the municipal employer claimed that the applicants waited too long to file their discrimination charges. Today, the Court unanimously disagreed, finding that the applicants filed their charges in time and were entitled to bring their lawsuit.
The case involved a written test the city gave for applicants to be firefighters. The city gave applicants their test scores (which divided applicants into the categories of "well qualified," "qualified," or "not qualified") and were told that they were unlikely to be hired unless they fell into the "well qualified" category. Later, the city began its actual hiring, and did just what it had said it would do: It used the earlier announced cut-off scores to choose successful applicants from those in the well qualified category.
A group of African-American applicants challenged the practice as discriminatory based on disparate impact. The city countered that the applicants should have filed their charges at the EEOC within 300 days of learning what their test scores were and how the city intended to use them. The applicants contended that they filed their charges in a timely manner, within 300 days after the city applied that announced policy to actually make hiring decisions, and the Court agreed.
It's hard to see how the Court could have held otherwise, for two reasons: First, as Justice Scalia's opinion points out, requiring the plaintiffs to sue within 300 days of the announcement of a policy or forever hold their peace would insulate ongoing discrimination from challenge. Once the employer made it past the 300-day mark, it could apply its discriminatory policy with impunity forever.
Second, what if circumstances changed or the city decided not to go forward with the policy after all? For example, what if the city suddenly had the money to hire many more firefighters than it had previously planned to hire, and so was able to accept applicants whose scores were too low for the well qualified category? Or, what if the city had second thoughts about the policy and decided not to follow it by the time hiring began? An applicant who sued anyway based solely on the city's announcement of its policy -- which it didn't go on to apply -- would have a tough time prevailing in court.
Last week, Pamela Fink filed a charge with the EEOC, alleging that she was fired from her job after telling her employer that she carried the BRCA2 gene (linked to some forms of breast cancer) and had undergone a voluntary double mastectomy after her two sisters had both been diagnosed with the disease. According to news reports, this is the first publicized case under GINA -- and one of the first EEOC charges to allege wrongful termination rather than improper disclosure of medical information.
In this case, Fink told her supervisors about the genetic test results and her surgery. She said that she felt comfortable doing so because she had received positive reviews, merit increases, and bonuses. Once she returned from surgery, she claims that her job duties were taken away, she was demoted, and was soon fired. The company has denied the allegations and said that its actions were warranted.
With so few facts on the table, it's hard to glean many lessons from this situation -- except perhaps that silence is golden. From an employer's perspective, it's always a good idea to limit the number of people who are privvy to information that cannot legally be considered when making employment decisions. If the decision maker doesn't know the protected information, whether it's that the employee has a disability, has complained of sexual harassment, or is pregnant, it's more difficult to prove discrimination or retaliation. And from an employee's perspective, limiting disclosure also limits the number of people who have an opportunity to act badly.
To learn more about GINA (and 19 other important workplace laws), see The Essential Guide to Federal Employment Laws (Nolo).
A few weeks ago, an appeals court in New Jersey decided, in J.T.'s Tire Service v. United Rentals North America, that one business can sue another business for quid pro quo sexual harassment. If you're wondering how one business might make sexual advances toward another, the answer is: the old-fashioned way, with wandering hands and unwanted sexual propositions.
The facts of the case allege that Harold, the manager of an equipment rental company, stopped buying tires from Eileen, owner of a tire service, after she refused his sexual advances. She had been selling to the company for almost ten years, earning about $29,000 monthly from the account. After she rejected Harold's advances, he kissed and groped her, delayed payments to her company, and then stopped doing business with her altogether.
She (and her business) sued under a section of New Jersey's nondiscrimination law that makes it illegal to refuse to contract or do business with any person on the basis of a protected characteristic, including gender. The court found that Eileen faced quid pro quo sexual harassment, a form of gender discrimination that violated the statute. The court added that allowing such conduct would create barriers to a woman's ability to run a business on an equal footing with men, and was therefore exactly what the legislature was trying to get at when it passed this antidiscrimination provision.
To learn more about sexual harassment in the workplace, see Nolo's Preventing Employment Discrimination & Sexual Harassment area.