Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

although the ADA uses different standards than the U.S. Department of Defense and the [Department of Veterans Affairs] in determining disability, many more service-connected disabilities will also be considered disabilities under the ADA than prior to the ADA Amendments Act. In fact, some service-connected disabilities, such as deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, major depressive disorder, and PTSD, will easily be concluded to be disabilities under the ADA.

In addition, the document states that, for example, it is illegal for an employer to refuse to hire a veteran because he has PTSD, because he was previously diagnosed with PTSD, or because the employer assumes he has PTSD. Similarly, an employer may not refuse to hire a veteran based on assumptions about a veteran's ability to do a job in light of the fact that the veteran has a disability rating from the U.S. Department of Veterans Affairs (VA). The ADA also limits the medical information employers may obtain and prohibits disability-based harassment and retaliation.

The second guidance document aims to educate veterans on their employment rights, including the steps they can take if they believe employers have unlawfully denied them employment or failed to provide them with a reasonable accommodation.

In a statement, EEOC Chair Jacqueline A. Berrien said: “We want veterans with disabilities to know that the EEOC has resources to assist them as they transition to, or move within the civilian workforce,” adding, “The release of these publications demonstrates our commitment to ensuring that veterans with disabilities receive the full protection of the laws we enforce, and that employers understand how to comply with those laws.”

The publication of these guidance materials comes after the EEOC held a public meeting in November 2011 that included a panel discussion on obstacles disabled veterans face when re-entering the workforce. During that meeting Claudia Gordon, Special Assistant to the Director of the Office of Federal Contract Compliance Programs (OFCCP), discussed her agency’s proposed rule that seeks to strengthen a federal contractor and subcontractor’s affirmative action requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). Among other things, the proposal describes specific actions a contractor must take to satisfy its obligations, increases the contractor’s data collection obligations, and requires the contractor to establish hiring benchmarks to assist in measuring the effectiveness of its affirmative action efforts. The OFCCP expects to issue a final rule on these changes by July 2012.

Enactment of bipartisan ADAAA involved negotiations with the employer and disability communities. A number of employer groups expressed concerns that the EEOC’s proposed rule, which was published on September 2, 2009, deviated from the carefully-crafted legislative compromise. The final rule addresses a number of these concerns to some degree. As discussed in an EEOC fact sheet on the new rule, the final regulations modify or remove language that groups representing employer or disability interests had found confusing or had interpreted in a manner not intended by the EEOC. For example:

• Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities (as had been done in the proposed rule), the final regulations provide the nine rules of construction to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability. The final rule also provides examples of impairments that should easily be concluded to be disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.
• Language in the proposed rule describing how to demonstrate that an individual is substantially limited in “working” has been deleted from the final regulations and moved to the appendix (consistent with how other major life activities are addressed). The final regulations also retain the existing familiar language of “class or broad range of jobs” rather than introducing a new term, and they provide examples of individuals who could be considered substantially limited in working. The appendix states that “[i]n the rare cases where an individual has a need to demonstrate that an impairment substantially limits him or her in working, the individual can do so by showing that the impairment substantially limits his or her ability to perform a class of jobs or broad range of jobs in various classes as compared to most people having comparable training, skills, and abilities.” In addition, the appendix explains that a “class” of work may be determined by reference to the nature of the work (e.g., commercial truck driving or assembly line jobs), or by reference to job-related requirements that an individual is limited in meeting (e.g., jobs requiring extensive walking, prolonged standing, and repetitive or heavy lifting). Demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.
• The final rule retains the concepts of “condition, manner, or duration” that the proposed rule had proposed to delete and explains that while consideration of these factors may be unnecessary to determine whether an impairment substantially limits a major life activity, they may be relevant in certain cases. This assessment may include consideration of the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function.

Other highlights of the final rule include the following:

• The rule defines “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. The rule’s definition also covers any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
• As for the final rule’s definition of “impairment,” immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, as these systems are specifically mentioned in the ADAAA’s examples of major bodily functions.
• The definition of “major life activities” is expanded. The final rule explicitly states that “in determining other examples of major life activities, the term ‘major’ shall not be interpreted strictly to create a demanding standard for disability. . . . Whether an activity is a ‘major life activity’ is not determined by reference to whether it is of ‘central importance to daily life.’” To this end, the final rule provides non-exhaustive lists of what constitutes a major life activity. Such activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. The rule also stipulates that performing major bodily functions – which include the operation of an individual organ within a body system (e.g., the operation of the kidney, liver, or pancreas) – constitutes a major life activity. These include 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. According to a Q&A issued by the EEOC on the final rule, “[a]s a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.”
• The final regulations adopt nine “rules of construction” to use when determining if an individual’s impairment substantially limits a major life activity. As discussed in an EEOC fact sheet, the rules of construction are to be used “to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability.” These rules include the following:
  • The phrase “substantially limits” is to be construed broadly in favor of the most expansive coverage permissible under the Act.
  • Although not every impairment will constitute a disability, an impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.”
  • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, and should not require an extensive analysis, as the “primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.”
  • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, although the standard is lower than that applied prior to the ADAAA.
  • Although determination of whether an impairment substantially limits a major life activity as compared to most people will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate.
  • Mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability.
  • Impairments that are episodic or in remission can be considered disabilities if they substantially limit a major life activity when active.
  • An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of “disability.”
  • The six-month “transitory” part of the “transitory and minor” exception to the “regarded as” coverage does not apply coverage under the “actual disability” or “record of” coverage.
• Under the final rule, a covered entity “regards” an individual as having a disability if it takes an adverse action against the individual (failure to hire or promote, etc.) based on an individual’s impairment or on an impairment the covered entity believes the individual has unless the impairment is transitory (lasting or expected to last for six months or less) and minor. Therefore, an employer would be able to defend against such a claim by asserting that the impairment at issue, whether actual or perceived, is both transitory and minor. The relevant inquiry is whether the actual or perceived impairment on which the employer’s action was based is objectively “transitory and minor,” not whether the employer claims it subjectively believed the impairment was transitory and minor.
• The EEOC received many comments about the position in the proposed rule that actions taken because of an impairment’s symptoms or because of the use of mitigating measures constitute actions taken because of an impairment under the “regarded as” prong. The Commission notes that it believes that this “requires a more comprehensive treatment than is possible in this regulation.” Therefore, the final regulations do not explicitly address the issue of discrimination based on symptoms or mitigating measures under the “regarded as” prong. However, the EEOC explains that: “No negative inference concerning the merits of this issue should be drawn from this deletion. The Commission’s existing position, as expressed in its policy guidance, court filings, and other regulatory and subregulatory documents, remains unchanged.”
• An individual must have an actual disability or record of an actual disability in order to be qualified for a reasonable accommodation.

More information on the new rule, including a fact sheet and Q&As, can be found on the EEOC’s ADAAA web page.

To discuss what the ADAAA final rule means for employers, Littler will be hosting a webinar on April 4, 2011. Registration information is available here.

For more detailed information on this final rule and its implications for employers, see Littler's ASAP:  EEOC Issues Regulations Under the ADA Amendments Act by Margaret Hart Edwards and Patrick Martin.

According to Sharon Lewis, Commissioner of the Administration on Developmental Disabilities, U.S. Department of Health And Human Services, “the proportion of the population of people with disabilities who are employed is estimated to be 17 percent, compared to 63 percent for people without disabilities.” William E. Kiernan, Director of the Institute for Community Inclusion, cited similar low employment statistics for this population.

Many panelists focused on the cause of this low employment rate. Ruby Moore, Executive Director of the Georgia Advocacy Office, testified that “[o]ne of the biggest obstacles to employment is consciously- and unconsciously- held beliefs about people with psychiatric, cognitive or intellectual disabilities.” Other issues facing employers include not knowing how to accommodate a person with a mental disability and fear of liability. For employees with mental disabilities, Moore suggested certain types of accommodations that might be appropriate. For example, she explained that an employee with a cognitive or intellectual disability might require more time to learn the job tasks. Another accommodation might include “structuring the task or the environment to make it easier to learn the job tasks.” For a person with a psychiatric disability, Moore suggested that a flexible schedule might be required to allow the employee to see a therapist or to go to doctor’s appointments.

Mark Penzel, an EEOC trial attorney, testified that he believed that the passage of the Americans with Disabilities Act Amendments Act (ADAAA) and imminent EEOC regulations on this statute will make it easier to build a case against an employer for alleged mental or psychiatric disability discrimination. Specifically, Penzel explained that the ADAAA provides that “[t]he definition of disability … shall be construed in favor of broad coverage …” and that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” According to Penzel, “particularly helpful to people with psychiatric disabilities is the ADAAA’s statement that ‘An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.’”

In addition, the panelist claimed that the new law’s change to the “regarded as” prong of the definition of disability will enable more individuals with mental disabilities to be considered “disabled” under the Act. He explained that before the ADA was amended, a claimant

needed to prove what was inside an employer’s head (by showing that the employer believed a person was substantially limited in a major life activity). The ADAAA eliminates this issue. Now “[a]n individual meets the requirement of ‘being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” These changes in the law should enable [the EEOC] to more quickly get to the core issue of discrimination and not get hung up on coverage for people with clear impairments.

A complete list of the panelists and their testimony, in addition to a transcript of the meeting, can be found here.

In addition, the agency intends to proceed with its proposed rules clarifying both the meaning of the “reasonable factors other than age” (RFOA) defense used against an Age Discrimination in Employment Act (ADEA) claim, and the disparate impact burden of proof under the ADEA. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims were cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed on the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC stated that before issuing final regulations concerning disparate impact claims under the ADEA, it would issue a new NPRM to address the scope of the RFOA defense. In February of this year, the EEOC did just that. The comment period on that NPRM ended in April 2010. Final rules clarifying both elements of the ADEA are scheduled to released by July 2011.

As for proposed rules, the EEOC plans to amend its current Title VII and ADA recordkeeping regulations to address recordkeeping obligations under the Genetic Information Nondiscrimination Act (GINA).  The agency issued a final rule on the employment provisions of GINA last month.

Also at the proposed rule stage, the agency intends to issue regulations revising its race and ethnicity data collection method to conform with current reporting instructions for the EEO-1 Report, making employee self-identification the preferred method for collecting race and ethnic data on employees.  According to the EEOC, current regulations allow employers to gather race and ethnic data about employees by visual surveys of the workforce or from employment records.

In essence, the proposed rule published today does the following:

• provides that the definition of “disability” shall be interpreted broadly;
• revises the portion of the regulations defining the term “substantially limits” by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard;
• expands the definition of “major life activities” through two non-exhaustive lists:
  • the first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working, some of which the EEOC previously identified in regulations and sub-regulatory guidance, and some of which Congress additionally included in the ADAAA;
  • the second list includes major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions, many of which were included by Congress in the ADAAA, and some of which have been added by the EEOC as further illustrative examples;
• provides that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;
• provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• provides that the definition of “regarded as” is changed so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead provides that an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is both transitory and minor;
• provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and,
• provides that qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the position in question and consistent with business necessity.

Other important changes include a list of conditions that will “consistently meet the definition of disability.” These impairments include, but are not limited to, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

With respect to the major life activity of “working,” the proposed regulations state that a person is substantially limited if he or she has an impairment that limits his or her ability to perform, or to meet the qualifications for, the type of work at issue, not the more stringent “broad range” or “class” of jobs standard. According to the regulations, “[w]hether an impairment substantially limits the major life activity of working must be construed broadly to the maximum extent permitted under the ADA and should not demand extensive analysis.” Moreover, under the proposed rule, the fact that an individual has obtained employment elsewhere is not dispositive of whether an individual is substantially limited in the ability to work.

The proposed rule also notes that adverse actions based on an impairment include actions based on symptoms of an impairment. Although the public may comment on any portion of the proposed regulations, the EEOC particularly invites comment on this point.

Comments to these proposed regulations must be made by November 23, 2009, and can be sent in written form to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE, Suite 4NW08R, Room 6NE03F, Washington, D.C. 20507. The Agency will also accept comments that are 6 pages or fewer in length via fax to (202) 663-4114. Comments may also be sent electronically to http://www.regulations.gov.
 

• directs EEOC to revise that portion of its regulations defining the term "substantially limits";
• expands the definition of "major life activities" by including two non-exhaustive lists:
  • the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
  • the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
• states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
• provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

As stated in an EEOC press release, the proposed rules emphasize that the definition of disability “must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis.” In this release, Acting EEOC Vice Chair Christine Griffin says that the regulations “will shift the focus of the courts away from further narrowing the definition of disability, and put it back where Congress intended when the ADA was enacted in 1990.”

The Q&A document on the proposed regulations provides guidance on a number of ADAAA-related questions, including what constitutes a “major life activity,” what causes an impairment to “substantially limit” a major life activity, and what are mitigating measures in these circumstances. Notably, the guidance states that the proposed regulations include a non-exhaustive list of impairments that would automatically be considered a disability under the ADA, such as cancer, autism, diabetes, epilepsy, HIV/AIDS, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. Additionally, the Q&A describes how the proposed rules would make it easier for an individual to be considered substantially limited in the major life activity of “working.” According to the proposed rules, an impairment substantially limits an individual’s ability to work when it substantially limits an individual’s ability to perform, or to meet the qualifications for, a “type of work,” as opposed to a “class” or “broad range” of jobs, which has been the benchmark under the current ADA regulations.

Once the EEOC’s notice of proposed rulemaking is published in the Federal Register, the public will have 60 days to submit comments. After the EEOC evaluates these comments, a final rule will be drafted and sent to the Office of Management and Budget (OMB) and other federal agencies for coordination and approval, and eventually published in the Federal Register.
 

Health Care

Both the House and Senate unveiled new details about their respective healthcare plans.

Labor/Management Relations

The Green Jobs Improvement Act (S. 1238) would make non-union training programs eligible for federal funding under the Green Jobs Program.

Supreme Court

The Supreme Court has held in Gross v. FBL Financial Services, Inc. that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show that age was the “but for” cause of the adverse employment action; the burden does not shift back to the employer to prove that it would have acted regardless of age.

Work/Family Balance

The Breastfeeding Promotion Act of 2009 (H.R. 2819, S. 1244) was introduced in both the House and Senate. This bill would amend Title VII and the Fair Labor Standards Act (FLSA) and establish an employer tax credit to promote and protect breastfeeding and lactation in the workplace.
 

The ADAAA – which was enacted in response to a number of U.S. Supreme Court cases that narrowly interpreted who could be considered “disabled” under the ADA – significantly expands the scope of this definition, and thus who may now bring suit under the ADA. Acting EEOC Vice Chair Christine M. Griffin stated in a press release:

These regulations will serve to shift the focus of the courts from further narrowing the definition of disability and putting it back to where Congress intended when the ADA was enacted in 1990. Courts should now focus on whether discrimination based on disability is occurring in the workplace. The protections afforded by the ADA AA and these new regulations are important for all workers including our returning wounded warriors who certainly deserve the right to re-enter a workforce free of discrimination.

During the public meeting, EEOC assistant legal counsel Christopher Kuczynski described the key ADA terms that would be affected by the proposed rule changes. A full copy of his statement can be found here. Of particular interest, the proposed rules would expand which activities would be considered “major life activities” under the ADA, such as reading, reaching, bending, sitting and communicating, as well as a list of “major bodily functions” such as normal cell growth and reproductive functions. Additionally, the proposed changes would loosen the standard for determining whether a particular impairment “substantially limits” a major life activity. For example, the proposed rules would stipulate that mitigating measures such as medication and prosthetic devices should not be taken into consideration in making this determination. The proposal also adds a list of conditions that would be presumptively considered substantially limiting under the ADA, including autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, major depression, bipolar disorder, post-traumatic stress disorder and schizophrenia. Examples of impairments that may be considered substantially limiting depending on the individual’s circumstances include asthma, high blood pressure, coronary artery disease, carpal tunnel syndrome, among others.

With respect to whether an impairment would substantially limit the major life activity of “working,” the proposed regulations would place the focus on whether the individual is precluded from a “type of work” as opposed to a class or broad range of jobs. This standard of review makes it more likely that an individual would be considered disabled. Additionally, the proposal makes it a point to say that the fact that an individual has found another job would not be dispositive of whether he or she is substantially limited in the ability to work. The proposed changes would also make it easier for an individual to bring an ADA claim based on a “record” of having a disability, or being “regarded as” disabled.

A copy of the proposed rules will be available once they are published in the Federal Register following OPM review.

For more information on the ADAAA, see Littler’s ASAP: Congress Tells the Courts How to Interpret the ADA by Margaret Hart Edwards and Patrick F. Martin.

The EEOC will also move forward with regulations regarding the equal employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA).  The ADAAA, enacted in 2008, expanded the definition of “disability” under the Americans with Disabilities Act (ADA) in light of a number of Supreme Court decisions. In December 2008, the EEOC commissioners deadlocked along party lines on whether to approve former Chair Naomi Earp’s proposed regulations.  According to the EEOC’s agenda, a notice of proposed rulemaking will be issued by August of this year.

The Age Discrimination in Employment Act (ADEA) will be subject to two rules as a result of the Supreme Court’s decisions in Smith v. City of Jackson and Meacham v. Atomic Knolls Laboratory. In Smith, the Court held that an employer could defend against a disparate impact claim under the ADEA by showing that its alleged adverse employment decision was due to reasonable factors other than age. In Meacham, the Court ruled that employers bear the burden of providing this defense. The proposed regulations, therefore, address this disparate impact burden of proof under the ADEA.  Final regulations on this issue are expected by March of 2010.  In addition, the EEOC intends to publish a notice of proposed rulemaking to amend its current regulations on what constitutes “reasonable factors other than age” by August of this year.

In a more procedural vein, the EEOC intends to issue a notice of proposed rulemaking by the end of next month to make changes and corrections to the federal sector equal employment opportunity complaint process. The agency also plans to revise its race and ethnicity data collection method to make employee self-identification the preferred method for collecting such data to conform with current reporting instructions for the EEO-1 Report.