Disabled or Not Disabled: That Is The Question...

When the ADAAA (Americans with Disabilities Amendments Act) went into effect January 1, 2009, the Equal Employment Opportunity Commission (EEOC) was directed to amend the ADA’s implementing regulations to reflect the changes of the new law. On March 25, 2011, those Final Regulations went into effect, changing the focus for employers and accommodations for employees with disabilities.

Perhaps the largest impact of the new law will be that the issue of whether an individual has a “disability” is likely an analysis of the past. The Final Regs make it clear that the focus must shift to whether there has actually been a violation of the ADAAA, rather than whether an individual is merely protected by the ADAAA.

My clients are inquiring about other aspects of the ADAAA and the New Regs as well. Here are some of the more common inquiries:

Q: We have a small company. Are we required to comply with the ADAAA?

A: Like the ADA, the ADAAA and the Final Regs apply to all private companies with 15 or more employees. It is important to note, however, that state statutes protecting individuals with disabilities may apply to companies with as few as one employee and are often interpreted in much the same way as their federal counterpart. So, for example, under the Washington Law Against Discrimination, the employer need only employ 8 individuals and, if the situation involves a termination related to a disability, state common law basically removes the WLAD from the analysis.

Q: How does the ADAAA affect courts’ and the EEOC’s interpretations of the ADA?
A: When Congress enacted the ADAAA, it rejected both the EEOC’s and many courts’ narrow interpretations of the term “disability.” Under the Final Regulations, individuals who wish to seek the law’s protection will be able to much more easily demonstrate that they have a “disability.” As a result, the EEOC anticipates that the focus of ADA claims will shift to the merits of the case itself, rather than an analysis of the threshold question of whether a particular individual can satisfy the definition of the term “disability.” Thia is a huge shift in how employers should approach disability accommodations.

Q: How is “disability” defined under the Final Regulations?

A: The ADAAA and the Final Regs define “disability” as follows:
1. A physical or mental impairment that “substantially limits” one or more major life activities (i.e., an “actual” disability), or
2. A record of a physical or mental impairment that “substantially limited” a major life activity (i.e., a “record of” a disability), or 3. When an individual is subjected to an employment action prohibited by the ADA because of an actual or perceived impairment, regardless of whether that impairment “substantially limits” a major life activity (i.e., “regarded as” having a disability).

Q: How do the Final Regs define “major life activities”?
A: The ADAAA includes a specific (but non-exhaustive) list of “major life activities,” including seeing, hearing, eating, sleeping, walking, standing, sitting, breathing, learning and reading, as well as “major bodily functions.” The EEOC’s Final Regs go even further, including a non-exhaustive list that is more expansive than that found in the text of the ADAAA, including sitting, reaching, interacting with others and “operation of an individual organ within a body system.”

Q: Do the Final Regs offer any guidance regarding what it means for an impairment to “substantially limit” a major life activity?

A: Just as the ADAAA expanded the definition of “major life activities,” it also expanded the definition of “substantially limits.” The Final Regs set forth “rules of construction” to be applied when determining whether an impairment “substantially limits” a major life activity, including the following:
1. The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts.
2. An impairment does not need to prevent or significantly restrict a major life activity to be considered “substantially limiting.” However, not every impairment will constitute a “disability.”
3. The term “substantially limits” should be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
4. The determination of whether an impairment “substantially limits” a major life activity requires an individualized assessment, just as it did under the ADA.
5. With one exception (ordinary eyeglasses or contact lenses), the determination of whether an impairment “substantially limits” a major life activity must be made without regard to the ameliorative effects of mitigating measures, such as medication, hearing aids and prosthetic limbs.
6. An impairment that is episodic (such as epilepsy, hypertension, asthma, diabetes or major depressive disorder) or in remission is a “disability” if it would “substantially limit” a major life activity when active.
7. In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of whether an individual has a “disability” should not require extensive analysis.

With these changes in mind, employers should shift their focus to the following main considerations:

1. Engaging in an interactive process with an individual who asks for reasonable accommodation,
2. Documenting the interactive process, all accommodations requested and made, and any assessment that the accommodation requested by the individual poses an undue hardship, and
3. Documenting legitimate, non-discriminatory reasons for adverse actions in employment (e.g., terminations and demotions).

 

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Is It Illegal To Refuse To Hire The Unemployed?

I’m re-posting an online article that I found interesting.

Businesses Refuse to Hire Unemployed, EEOC says

by Stephanie Rabiner

When speaking to the unemployed, discrimination is usually the last thing on their mind. After all, they’re not employed, right? But once they settle in and start browsing the web for that next job, things change. Inevitably, they come across a promising ad, only to be devastated when the ad lists “currently employed” under qualifications. Discrimination has taken on new meaning.

Discrimination against the unemployed has finally come to the attention of the Equal Employment Opportunity Commission, which has just announced that it is now investigating whether the practice is as widespread as anecdotal evidence suggests, and whether the practice of requiring current employment is illegal. Employment law experts are unsure what the EEOC will do, reports The Wall Street Journal.

While the EEOC seeks evidence, it’s still possible to consider the legal side of the issue. Is it even legal to discriminate against the unemployed?

This is actually a tough question that requires a lot of statistical evidence. As it stands, employment discrimination laws do not explicitly protect the unemployed. Discrimination laws do, however, outlaw discrimination on the basis of race, color and age (over 40 years old).

Title VII and the Age Discrimination in Employment Act outlaw seemingly non-discriminatory selection policies that disproportionately affect protected classes of persons. This is referred to as a disparate impact.

As of January, the unemployment rate for African-Americans was 15.7%, 11.9% for Hispanics, and only 8% for whites. Not only that, one in every three short- to medium-term unemployed person was over 40, while over half of all long-term unemployed persons were also above 40. One expert also estimates that the anti-unemployed policies lower the chance of a minority being hired by 1/3.
Clearly an overwhelming proportion of unemployed persons are racial minorities or over the age of 40. And clearly these policies have a disproportionate impact on these legally protected groups. But that doesn’t make the policy illegal. The law also takes into consideration whether current employment is a necessary qualification, if there’s a less discriminatory alternative, and whether the policy is reasonable. So until there’s a final decision answering these questions, for those that are unemployed, discrimination will just have to be part of the game.

Related Resources:

• EEOC Asks: Are Employers Discriminating Against The Jobless? (Huffington Post)
• Speakers at EEOC Meeting Say Ban on Unemployed Job Applicants Could Discriminate Illegally (ABA Journal)
• Unemployed need not apply (Kansas City Star)

Criminal Backgrounds Checks, Credit Histories & Hiring

Recent Equal Employment Opportunity Commission (“EEOC”) initiatives are focused on eradicating what the EEOC views as more covert forms of discrimination, such as policies that exclude applicants with bad credit reports or criminal convictions. In light of this new scrutiny, employers who conduct credit or criminal background checks should make sure that their practices do not give rise to claims of “disparate impact” discrimination by members of protected classes.

EEOC Guidance on Criminal Background Checks

EEOC guidance provides that a blanket exclusion of individuals from employment due to a criminal record violates Title VII of the Civil Rights Act of 1964, unless the policy is consistent with business necessity or otherwise required by law. The EEOC has previously found that employment decisions based on this type of criteria disproportionately exclude African-American and Hispanic applicants. As a result, the EEOC has also stated that employers should not consider arrests, but only convictions.
If an applicant is excluded from employment because of a previous conviction, the EEOC calls for consideration of three factors: (1) the nature and gravity of the offense; (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.

Use of Credit Information in Employment Decisions

The EEOC is also evaluating the common hiring practice of checking the credit history of applicants. In October of 2010, the EEOC held a public Commission meeting on the use of credit histories in the employment selection process. At this meeting, representatives of civil rights groups cited studies showing racial minorities and women tended to have lower credit scores than non-Hispanic white males. These groups emphasized studies that show little correlation between “bad credit” and job performance. Thus, a blanket exclusion of applicants with “bad credit” may have a disparate impact on protected groups, without being justified by business necessity. This would violate Title VII.

Employer representatives emphasized the use of credit histories as part of mandatory background checks for jobs that involve access to customer and company money. These same speakers noted that credit reporting agencies do not reveal actual credit scores to potential employers, but rather a narrative of the individual’s credit history. Finally, proponents of credit checks argued that no research has shown a relationship between use of credit reports and a disparate impact on minority job opportunities. The statements of the panelists at the October 2010 Commission meeting, along with their biographies, can be found on the EEOC’s website. http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm

While the EEOC has no immediate plan of action on these issues, it reiterated that employers should ensure that any use of credit history in the employment process be entirely job-related.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

"Work Is Key To The Soul" - Chai Feldblum

I recently saw a television advertisement for this organization: Think Beyond the Label | Evolve Your Workforce. Their website, www.thinkbeyondthelabel.com, says that they are ”committed to making the business case for employing people with disabilities.”

“Our goal is simple: to raise awareness that hiring people with disabilities makes good business sense. Employees with disabilities have unique, competitively relevant knowledge and perspectives about work processes, bringing different perspectives to meeting work requirements and goals successfully. Hiring someone who ‘thinks outside the box’ might be thinking too small when there’s an opportunity to hire someone who lives outside the box.”

The EEOC recently celebrated 20 years since the enactment of the Americans with Disabilities Act. One quote from the article stuck with me: “Work is key to the soul.” Chai Feldblum, the EEOC Commissioner, is quoted as saying that work is not just about paying bills. “It’s about feeling important, about feeling useful.” http://www.eeoc.gov/eeoc/newsroom/release/7-22-10.cfm

Anyone who ever met my cousin would understand this sentiment first hand. She was born with a host of physicial disabilities: legally blind, legally deaf, dwarfism, you name it. For more than 15 years, she has worked part-time at her local library alphabetizing and organizing. This job, which some would deem unimportant, means everything to her. The idea of missing a day of work is inconceivable to her. Work gives her purpose.

Many employers panic when it comes to handling issues related to employees with disabilities. The reality is that the multitude of laws surrounding disabilities, accommodations and leave are daunting. That said, I have witnessed many a success story involving an employer who took the time and the heart to work with a disabled employee. This website has pages devoted to such stories. They have a page devoted to debunking the myths associated with hiring individuals with disabilities. They also have a page devoted to the “Business Case” for hiring individuals with disabilities. Additionally, they have an informatin page related to the tax incentives for businesses who employee people with disabilities: http://www.thinkbeyondthelabel.com/Learning-Tools/TaxIncentivesTipSheet.aspx .

My cousin is an inspiration to me. She reminds me to value my good fortune and that my good fortunhe includes my abilitiy to work and be a productive member of society. I believe she has that impact on everyone she meets. Her very presence at the local library breaks down the barriers and the myths of working with individuals with disabilities.

Got A Harassment Complaint? Respond Promptly!

The Case: In EEOC v. Prospect Airport Services (2010), a male employee, Rudolph Lamas, allegedly suffered hostile work environment sexual harassment at the hands of a female co-worker, Sylvia Munoz. His employer, PAS, supplies wheelchair assistance to disabled passengers at Las Vegas’s McCarran International Airport. Lamas was a well-respected employee who was promoted to a position of importance involving retention of an important client contract. Starting in the fall of 2002, shortly after Lamas’s wife passed away, Munoz, who was married, made a series of rejected sexual overtures toward Lamas. Munoz’s efforts included several explicit notes to Lamas, including one note where Munoz said,”Seriously, I do want you sexually and romantically,” giving Lamas suggestive pictures of herself, repeatedly approaching Lamas and asking him out or soliciting him for sex, including in front of other co-workers and airline passengers, and enlisting Lamas’s co-workers to pressure Lamas into going out with Munoz. Munoz’s behavior continued from the fall of 2002 through the spring of 2003.

PAS had a policy prohibiting sexual harassment and encouraging employees to report any violations of the policy to a supervisor so that PAS could investigate complaints. Lamas, bothered by Munoz’s repeated advances, reported her overtures to PAS’s Assistant General Manager, who told Lamas he should tell Munoz that the advances were not welcome, and that Lamas should let him know if the behavior continued so he could take care of it. Lamas also complained to his immediate supervisor, who promised to talk to Munoz, but did not. Finally, Lamas complained to PAS’s General Manager (“GM”), who acknowledged that Munoz’s behavior violated PAS’s policy, but told Lamas that he did not want to get involved in “personal matters.” PAS’s GM did eventually talk to Munoz, telling her that if her advances continued he “would have to take action.”

Despite Lamas’s repeated complaints, Munoz’s behavior continued and even worsened. Lamas consulted with a psychologist. He also raised his complaints anew with four different PAS managers, including a manager who told Lamas that the advances were just a joke and he should feel flattered. During this period, Lamas’s job performance declined and he was eventually fired. Lamas attributed his declining performance to the stress caused by more than half a year of harassment.

On these facts, the Ninth Circuit held that Lamas had more than met his burden to overcome summary judgment. Specifically, Lamas had presented sufficient evidence that he was subjected to conduct of a sexual nature, that he repeatedly rejected Munoz’s advances and communicated his displeasure with those advances to Munoz and his managers, and that Munoz’s conduct had contributed (or caused) the performance decline resulting in his termination. Lamas also presented evidence sufficient to show that PAS failed to take effective action to stop the harassment where, despite repeated reports of bad behavior, Munoz’s conduct continued and worsened.

The Lesson: Nearly all employers, just like PAS, have adopted “anti-harassment” policies requiring employees to report incidents of sexual harassment to specific individuals so that any alleged harassment can be promptly investigated and corrected. The lesson of PAS is that simply having a policy is not enough to avoid liability for hostile work environment harassment. The policy must also be followed in every instance. Complaints of harassment should be processed in accordance with your policy including prompt investigation and effective punishment for any instances of harassment that are found to have occurred. A slap on the wrist may be enough for minor violations, but continued violations or more egregious conduct likely call for something more severe. The ultimate test is whether the corrective action could reasonably be expected to stop the inappropriate conduct and deter such conduct in the future.

In addition, employers should train their managers and supervisors on their procedures for harassment reporting because the potential for liability starts once a management-level employee learns of the bad behavior. Managers should understand the potential risks to the company and to their own reputations and financial well-being is they do not pass complaints up the chain. They should also understand that every complaint is important, no matter how minor it may seem.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.