I hope everyone has had a nice summer. Things continue to be busy in the labor and employment law arena. While many of our clients are still struggling with the economic conditions, there are also changes affecting today’s employers and employees. Healthcare continues to be a hot topic with the Obama Administration as well as Congress. The federal minimum wage increased on July 24, 2009, to $7.25 an hour. While it appears there will be compromise with respect to the Employee Free Choice Act, it is still anyone’s guess as to when we may actually have new legislation to discuss. We will continue to update Section members on these and other labor and employment issues as they are decided in 2009. Please submit any articles you would like to have published to Al Phinney at firstname.lastname@example.org for our third quarter newsletter. We would especially be interested in any articles or opinions from the plaintiff’s bar regarding any new labor and employment law issues.
The Employment and Labor Law Section sponsored a full-day CLE in May of this year in Columbia. We had more than 50 attendees, excluding those who may have participated by webinar. Thanks to all of the speakers who took time to address the audience on a number of relevant labor and employment topics.
Please remember to mark your calendar for the NC/SC Employment and Labor Law CLE, which will be held in Charleston October 23-24. The Section is close to finalizing the agenda for the program, and we look forward to another entertaining and meaningful time together with our North Carolina colleagues. This year the program will be held at the Francis Marion Hotel. We would appreciate your feedback on this location and whether you would like to see the event held at the Francis Marion again in 2011. Hotel space is limited, so please call today to make your reservation. As always, if you have any questions or suggestions for improving the quality of this newsletter, please do not hesitate to contact me or Tara Smith at the S.C. Bar.
Since the enactment of the Age Discrimination in Employment Act of 1967 (ADEA), courts have struggled with the appropriate burdens to apply to age discrimination cases, particularly those in which both age and other legitimate factors are the alleged bases for adverse employment action. In Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (June 18, 2009), the U.S. Supreme Court eliminated this confusion by ruling that ADEA plaintiffs cannot proceed on a mixed-motive theory. Instead, they can only prevail by establishing a preponderance of the evidence that age was the “but-for” cause of a challenged adverse employment action.History of mixed-motive cases and the ADEA
The ADEA prohibits adverse employment action “because of” an employee’s age. Historically, courts have applied to ADEA cases the same analyses used in cases brought under Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination “because of” an individual’s race, color, religion, sex or national origin. In 1991, however, Congress amended Title VII as part of the Civil Rights Act of 1991 to permit employer liability in cases where an employee’s protected trait (e.g., race, color, religion, sex or national origin) was “a motivating factor for any employment action.” This amendment was a response to Price Waterhouse v. Hopkins, 490 U.S. 228 (1998), a plurality opinion addressing the standard to be applied in Title VII cases in which it is alleged that both permissible and impermissible criterion factored into the employer’s adverse decision. In Price, a majority of the Court held that, if a plaintiff produced sufficient evidence that discrimination was a “motivating” or “substantial” factor in an employer’s adverse action, the burden of persuasion would then shift to the employer to show that it would have taken the same action regardless of the prohibited consideration. If the employer satisfied this burden, it would not be held liable for the discrimination. Subsequent to the 1991 amendment to Title VII, employers could only limit the available remedies, not their liability, by showing that the challenged adverse decision would have been made even if the prohibited criterion had not been considered.
Following the 1991 amendment to Title VII, courts continued to apply Price Waterhouse and its burden-shifting scheme in mixed-motive ADEA cases. Several circuits, including the Fourth, considered Justice O’Connor’s concurring opinion in Price Waterhouse to be controlling such that the burden of persuasion should shift to the employer only if the employee produced direct evidence that the illegitimate criterion was a substantial factor in the employment decision. In 2003, however, a unanimous U.S. Supreme Court, in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), rejected this standard, noting the value of circumstantial evidence in mixed-motive cases and the plain language of the statute, which requires only that a plaintiff “demonstrate” that an impermissible factor was considered.
Even after Desert Palace, the Fourth Circuit assumed, but never specifically decided, that the Price Waterhouse burden-shifting scheme still applied to ADEA cases, such that an ADEA plaintiff could obtain a mixed-motive jury instruction only by proffering direct evidence that age had determinative influence on the outcome of the employer’s decision. In Gross, however, the U.S. Supreme Court opined otherwise.
History of Gross
In April 2004, Gross sued FBL in District Court, claiming that his 2003 reassignment constituted age discrimination in violation of the ADEA. The District Court gave the jury a mixed-motive instruction, stating that Gross would prevail on his claim if he proved by a preponderance of the evidence that he had been demoted and that age “was a motivating factor,” or “played a part or role,” in FBL’s decision. The District Court also instructed the jury, however, that FBL would prevail if it proved, by a preponderance of the evidence, that Gross would have been demoted regardless of his age. The jury found for Gross, awarding him $46,945 in lost compensation.
FBL appealed to the Court of Appeals for the Eighth Circuit, objecting to the District Court’s jury instructions on the basis that they improperly shifted to the employer the burden of persuading the jury that the employer acted for permissible, rather than impermissible, age-based reasons. On appeal, the Eighth Circuit reversed the jury verdict, holding that the jury had been instructed incorrectly under Price Waterhouse. The Circuit Court held that, in mixed-motive cases, the burden of persuasion should not have shifted to FBL at any point unless Gross established by direct evidence that his age played a “substantial role” in the decision to demote him. The Circuit Court opined further that the jury should have been charged to decide whether Gross proved that age was “the determining factor,” rather than a “motivating factor,” in FBL’s decision to demote him. Gross appealed to the U.S. Supreme Court.
The Court’s decision
In a 5-4 opinion, the Court held that the ADEA does not permit age discrimination claims based on the mixed-motive theory. The Court was mindful of the fact that, while Title VII and ADEA analyses had historically been the same, the Court had to be certain that rules applicable to one statute were not applied to another without careful and direct examination. This was particularly a concern regarding the application of Title VII rules to the ADEA. Title VII, as amended, provides that a plaintiff can establish discrimination simply by showing that the prohibited trait was a “motivating factor,” while the ADEA does not define the standard to establish discrimination “because of” an employee’s age. In light of the ordinary meaning of “because of” and the plain language of the ADEA, the Court held that an ADEA plaintiff must show that age was the “but-for” cause of the challenged adverse action.
The Court also rejected Gross’ contention that the Price Waterhouse burden-shifting scheme was controlling. The ADEA is silent as to the allocation of the burden of persuasion, supporting the presumption that the plaintiff bears the burden of persuasion at all times. In Gross, the Court clarified that, regardless of whether the case is a mixed-motive case or any other ADEA disparate treatment case, the plaintiff at all times bears the burden of proving by a preponderance of the evidence, whether direct or circumstantial, that age is the “but-for” cause of the challenged employer decision.
Implications for employers and their attorneys
On June 29, the U.S. Supreme Court held, in a 5-4 decision, that the City of New Haven’s action in discarding test results that were used to identify those firefighters best qualified for promotion violated Title VII of the Civil Rights Act. Justice Anthony Kennedy, writing for the majority, ruled that the City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard, which the Court adopted to resolve any conflict between Title VII’s disparate treatment and disparate impact provisions. According to the Court, “[f]ear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” Ricci v. DeStefano, No. 07–1428, U.S. Supreme Court (June 29, 2009).
After each test, the New Haven Civil Service Board (CSB) certified a ranked list of applicants who passed the test. The city charter required the “rule of three,” which meant that the person selected for a position must be among the three individuals with the highest scores.
For the lieutenant exam, 43 whites, 19 blacks and 15 Hispanics took the exam. Twenty-five whites, six blacks and three Hispanics passed the exam. All of the top 10 scorers were white, and there were eight lieutenant vacancies.
For the captain exam, 25 whites, eight blacks and eight Hispanics were tested. Sixteen whites, three blacks and three Hispanics passed. There were only seven captain vacancies. The top nine scorers on the captain exam included seven whites and two Hispanics.
In 2004, based on its concerns over a possible “disparate impact” on racial minorities, the CSB held hearings on whether to certify the promotional lists which included no black employees. The CSB split 2-2 and therefore did not certify them. As a result, no promotions were made. The white and Hispanic firefighters who were denied promotions as a result of the refusal to certify the results sued the City for race discrimination.
In 2006, a federal district court rejected the discrimination claims. On appeal, a three-judge panel of the Second Circuit Court of Appeals summarily affirmed the lower court’s decision, finding that the City’s actions were protected because it was “simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact.” The case has attracted additional public attention because Justice Sonia Sotomayor was on the panel that decided the case in the City’s favor.
The firefighters argued that when the CSB refused to certify the exam results because of the racial composition of the group of successful candidates, it discriminated against them in violation of Title VII’s disparate treatment provision. The City countered that it had a good faith belief that, had it certified the test results, it would have violated the disparate impact provision and thus, that its decision was permissible.
Given this framework, the Court noted that the City’s rejection of the test results is “express, race-based decision making,” which violates the disparate treatment prohibition of Title VII absent some valid defense. As a result, the Court next considered whether the City’s effort to avoid disparate impact liability justified disparate treatment against the firefighters.
Justice Kennedy rejected the firefighters’ argument that under Title VII, avoiding unintentional discrimination cannot justify intentional discrimination and thus, the City was prohibited from avoiding disparate impact liability by engaging in disparate treatment discrimination. The Court also rejected the firefighters’ argument that an employer must show that it is guilty of disparate impact discrimination in order to use its attempt to avoid that violation as a defense against disparate treatment liability. Justice Kennedy wrote, “[f]orbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill.”
The Court also rejected the City’s argument that a good faith belief that it might violate the disparate impact prohibition justifies race-based employment decisions. According to Justice Kennedy, such a practice “would encourage race-based action at the slightest hint of disparate impact.”
Instead of these extremes, the Court borrowed a standard from Equal Protection jurisprudence to resolve the conflict between the disparate treatment and disparate impact provisions of Title VII. Under the “strong-basis-in-evidence” standard, actions based on race are impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate impact statute. Thus, the Court reasoned, the City could have refused to certify the results if the record demonstrated that there was a strong basis in the evidence to show that certification would have lead to disparate impact liability.
The Court held that the record did not justify the City’s actions. Even if the City was motivated by a desire to avoid committing disparate impact discrimination, the Court ruled, the record failed to show that it had an objective, strong basis in evidence to find the tests inadequate and that it would face disparate impact liability if it had certified the results.
The Court found that since certifying the examinations would have meant that the City could not have considered black candidates for any of the vacant positions, the City did face a prima facie case of disparate impact liability. But, a prima facie case of disparate impact liability alone is not a strong basis in evidence that the City would have been liable under Title VII had it certified the results. The City would have been liable under the disparate impact theory only if it was not able to show that the examinations were job-related and consistent with business necessity and if the City refused to adopt an available alternative practice that had less disparate impact but still served the City’s needs.
The Court concluded that there was no strong basis in evidence showing that the test was deficient in either of these respects. It reasoned that the examinations were clearly job-related and consistent with business necessity. Moreover, the Court ruled that the record lacked a strong basis in evidence of an equally valid, less-discriminatory testing alternative that the City would necessarily have refused to adopt had it certified the test results.
In particular, the Court rejected arguments that the City could have adopted a different composite-score calculation (weighing the written and oral examination scores 30/70 rather than 60/40) and a different interpretation of the “rule of three.” Furthermore, the Court found that the mere suggestion of alternative test methods does not raise a genuine issue of whether these alternatives were available to the City and that they would have produced a less adverse impact.
Because there was no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate impact liability if it certified the test results, the Court held that Title VII did not permit it to disregard the test results. In light of this ruling, the Court declined to consider the issue of whether the City’s actions may have violated the Equal Protection Clause. The Court explained further that, notwithstanding the prima facie case against it, the City could defend against a disparate impact claim on the basis that a failure to certify the test results would result in liability for disparate treatment.
On Thursday, January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay (Ledbetter Act), the first new statute of his presidency. This article will discuss the United States Supreme Court Case that triggered the Ledbetter Act, changes made by the Ledbetter Act, issues likely to arise in future litigation, and recommendations for clients.
Ledbetter v. Goodyear Tire & Rubber Co.
Initially, her salary was in line with the salaries of men performing substantially similar work. Id. at 643. However, over time her pay slipped in comparison to the pay of male area managers with equal or less seniority. Id. Ledbetter was unaware of this pay disparity until an anonymous co-worker slipped a note into her mailbox at work that compared Ledbetter’s pay to that of three other male counterparts. Kate Pickert, 2-Minute Bio Lilly Ledbetter, Time, January 29, 2009, available here. Ledbetter was the only woman working as an area manager, and she was paid $3,727 per month while the lowest paid male area manager received $4,286 per month, the highest paid $5,236. Id.
In March 1998, Ledbetter submitted a questionnaire to the EEOC alleging acts of sex discrimination, and in July of that year she filed a formal EEOC charge. Id. at 621. After taking early retirement in November 1998, Ledbetter commenced an action in which she asserted, among other claims, a Title VII pay discrimination claim. Id.
In support of her claim, Ledbetter introduced evidence that during the course of her employment several supervisors had given her poor evaluations because of her sex. Id. As a result of these evaluations, her pay was not increased as much as it would have been if she had been evaluated fairly. Id. These past pay decisions continued to affect the amount of her pay throughout her employment. Id. at 622.
Federal discrimination laws generally require employees to file charges of discrimination with the EEOC within 180 (non-deferral states) or 300 (deferral states, like South Carolina) days after the alleged discrimination occurs. Based on this requirement, Goodyear argued that Ledbetter’s pay discrimination claim was time barred with respect to all pay decisions made prior to September 26, 1997, 180 days before the filing of her EEOC questionnaire, because no discriminatory act relating to Ledbetter’s pay occurred after that date. Id. The jury found for Ledbetter and awarded her backpay and damages. Id. The Court of Appeals for the 11th Circuit reversed. Id.
The Morgan Court rejected the “continuing violations” doctrine, under which some courts had permitted plaintiffs to challenge a series of related acts of discrimination, as long as at least one had occurred within the 180 days prior to the filing of an EEOC charge. Id. at 114. The Court in Ledbetter reasoned that a pay-setting decision, like a discriminatory firing, is a discrete act, independently identifiable and actionable, and that “current effects alone cannot breathe life into prior, uncharged discrimination.” 550 U.S. at 628. Accordingly, the Court ruled the paychecks issued to Ledbetter during the 180 days prior to the filing of her EEOC charge did not provide a basis for overcoming her prior failure to file a charge within 180 days of the pay decision. Id. In addition, the Court said Ledbetter’s policy arguments for giving special treatment to pay claims (the EEOC’s endorsement of her approach in its Compliance Manual and in administrative adjudications) was not supported in the statute and was inconsistent with the Court’s precedents. Id. at 642.
Effect of Ledbetter ruling
Democratic gains in the 2008 elections gave supporters of the Ledbetter Act a filibuster-proof majority. Thus, in the first week of the 111th Congress, the Lilly Ledbetter Fair Pay Act of 2009 (H.R. 11) was reintroduced by Rep. Miller. It passed with a vote of 247-171. The Paycheck Fairness Act (H.R. 12), a bill that would amend the Equal Pay Act by limiting employer defenses and adding uncapped punitive and compensatory damages, was also passed. After passing the Ledbetter Act and Paycheck Fairness Act, the House sent them to the Senate for consideration as a package.
The Senate separated the two Acts and approved bill (S.181), which contained only the Lilly Ledbetter Fair Pay Act, on January 22 by a vote of 61-36. The bill passed the House for a second and final time by a vote of 250 - 177 on January 27 and was signed by President Obama on January 29.
The Ledbetter Act
While Lilly Ledbetter’s disparate pay claim was based on gender discrimination under Title VII, the Ledbetter Act applies to disparate pay claims based on race, color, religion, gender, national origin, protected disability or age under Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) or the Rehabilitation Act (Rehab Act). In addition, there is no language in the Ledbetter Act to suggest that it does not apply to both intentional discrimination and disparate impact claims alike.
Federal discrimination laws generally require employees to file charges of discrimination with the EEOC within 180 or 300 days after the alleged discrimination occurs. The Ledbetter Act restores the “paycheck accrual rule” by allowing the statute of limitations for filing a wage discrimination claim with the EEOC to start when the employer makes an adverse pay-setting decision and also each time a discriminatory paycheck is issued. Therefore, each new paycheck or post-retirement benefits check serves as an unlawful employment practice for which a charge could be filed even if the alleged discriminatory decision or action occurred years earlier.
The Ledbetter Act applies retroactively, as if the law was in effect on May 28, 2007, the day before the Supreme Court’s ruling. This means the Ledbetter Act will change the rule of decision for any case in which a final judgment has not yet been entered, including cases currently on appeal. However, the law cannot authorize the reopening of final judgments. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 225 (1995) (holding that Congress lacks constitutional authority to retroactively alter the final judgments of Article III courts).
Under the Ledbetter Act, an unlawful employment practice occurs with respect to disparate pay when:
Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3.
Litigation issues created by the Act
“when an individual is affected by”
The EEOC’s Web site states only the following parties can file charges of discrimination with the agency: (1) any individual who believes that his or her employment rights have been violated; and (2) an individual, organization or agency may file a charge on behalf of another person in order to protect the aggrieved person’s identity. Equal Employment Opportunity Commission, Filing a Charge of Employment Discrimination, www.eeoc.gov/charge/overview_charge_filing.html (page last modified on December 20, 2007). In addition, Sen. Barbara Mikulski (D-Md) attempted to assure critics that the Ledbetter Act did not change current law relating to individuals eligible to file pay discrimination charges. 155 Cong. Rec. S759 (daily ed. Jan. 22, 2009) (statement of Sen. Mikulski, “Mr. President, the Enzi amendment is unnecessary. The ‘affected by’ language is not vague. Our bill only applies to workers and their employers”).
“discriminatory compensation decision or other practice”
Sen. Arlen Specter (R-PA) proposed an amendment (SA 27) to the Ledbetter Act that would have stricken the “other practices” language, arguing it would “promote an enormous amount of litigation as to whether ‘other practices’ included such items as promotion, hiring, firing, training, tenure, [or] demotion.” 155 Cong. Rec. S754 (daily ed. Jan. 22, 2009) (statement of Sen. Specter). However, Sen. Mikulski, who sponsored the Senate bill, rejected Sen. Specter’s amendment because it did not cover “job evaluations,” “classifications” and other “personnel actions that still result in discriminatory wages.” 155 Cong. Rec. S758 (daily ed. Jan. 22, 2009) (statement of Sen. Mikulski, in effect confirming that the Act is intended to include a wide variety of practices).
“benefits or other compensation”
“similar or related to”
Additional failed amendment
Recommendations for employers
This article originally appeared in the July 2009 issue of the South Carolina Lawyer.
The ADA Amendments reverse several Supreme Court cases and implement sweeping changes to the rules for determining whether an employee has a “disability” as defined under the ADA and is thus entitled to protection under the ADA.
This article will discuss the key changes to the disability discrimination laws and comment on the likely impact of these changes on lawyers, employees and employers.
Overview of the ADA
The ADA also generally imposes an affirmative duty on an employer to offer a reasonable accommodation to an individual with an actual impairment (category one above) who, with the accommodation, is able to perform the essential functions of his or her job. 42 U.S.C. § 12112(b)(5)(A). Such accommodations might include modifications or adjustments to the work environment, or to the position itself, that enable the disabled employee to perform the essential functions of that position. 29 C.F.R. § 1630.2(o)(1)(ii) (1997). Thus, the discrimination prohibited by the ADA can take the form of disfavoring a disabled individual in an employment decision or refusing to provide a disabled individual with a reasonable accommodation.
A desire to redefine “disability”
The critics cited statistics to support their arguments. For example, a frequently cited study found that in every year from 1998 through 2007, employers prevailed in at least 93 percent of disability discrimination cases. Amy L. Allbright, 2007 Employment Decisions Under the ADA Title I – Survey Update, 32 Mental & Physical Disability L. Rep. 335 (2008). The same study estimated that employers prevailed in 98 percent of all ADA employment discrimination cases during the year 2003. Id. Many cases were won by employers on the grounds that the plaintiff did not establish a “disability” under the ADA.
With that in mind, proponents of the ADA Amendments sought to broaden the definition of “disability.” There is little doubt they succeeded.
Purposes of the ADA Amendments Act
ADA Amendments Act of 2008, Pub. L. No. 110-325 § 2(b), 122 Stat. 3553, 3554 (2008) (emphasis added) (citations omitted).
Definition of “disability” and “substantially limits”
The Toyota Court also held that to establish that they are “substantially limited,” individuals must show that their impairments “prevent or severely restrict” their ability to perform activities of central importance to most people’s lives. Id. at 198. Under this rule, courts across the country dismissed numerous claims on the grounds that the plaintiffs’ impairments were not severe enough to be protected by the ADA.
The ADA Amendments expressly overrule the Toyota case, stating that the case had “narrowed the broad scope of protection intended to be afforded by the ADA.” Pub. L. No. 110-325 § 2(a)(5), 122 Stat. at 3553. The ADA Amendments assure a broad definition of disability in at least seven ways.
Rules of construction
Second, the ADA Amendments dictate that “[T]he question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Pub. L. No. 110-325 § 2(b)(5), 122 Stat. at 3554.
Third, the ADA Amendments broadened the definition of “disability” by stating that “[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be construed as a disability.” Pub. L. No. 110-325 § 4(a), 122 Stat. at 3556 (to be codified at 42 U.S.C. §12102(4)(C)).
Fourth, the ADA Amendments state that an impairment that is episodic or in remission qualifies as a disability if it would substantially limit a major life activity in active state. Pub. L. No. 110-325 § 4(a), 122 Stat. at 3556 (to be codified at 42 U.S.C. §12102(4)(D)). In other words, if an employee has a condition in remission, courts must consider whether the disease would substantially limit a major life activity in its active phase, regardless of whether the disease has significant effect on the employee while in remission.
Expanding the definition of “major life activity”
Under the first prong of the ADA’s definition of “disability,” an individual is disabled if he or she is substantially limited in one or more “major life activities.” While the original ADA did not define “major life activities,” regulations promulgated by EEOC contained a brief, nonexclusive list of examples of major life activities, including “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i) (2008). Many a disability discrimination claim was dismissed on the grounds that the plaintiff could not show that he or she was substantially limited in a major life activity.
The ADA Amendments adopt the EEOC’s list of major life activities and add several more. The nonexclusive list of “major life activities” now includes all the activities identified in the EEOC regulations, as well as “eating, sleeping, … standing, lifting, bending, … reading, concentrating, thinking, and communicating.” Pub. L. No. 110-325 § 4(a), 122 Stat. at 3555 (to be codified at 42 U.S.C. § 12102(2)(A)).
Under this language, many more conditions will likely be covered by the ADA. For example, adding the activities of reading, concentrating and thinking to the ADA’s definition of “major life activities” should allow more litigants to be deemed disabled with conditions such as dyslexia and attention deficit disorder.
Congress also addressed a concern that courts had failed to take into account less obvious disabilities. A number of plaintiffs had been denied disability status despite conditions that affected certain internal body functions such as cancers, HIV/AIDS and multiple sclerosis. Congress addressed these cases by expanding the definition of “major life activities” to include the operation of “major bodily functions.” The nonexclusive list of these “life activities” would include “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Pub. L. No. 110-325 § 4(a), 122 Stat. at 3555 (to be codified at 42 U.S.C. § 12102(2)(B)).
Mitigating measures cannot be considered
In Sutton v. United Air Lines Inc., 527 U.S. 471, 482 (1999), the Supreme Court held that corrective devices, such as eyeglasses, that allow individuals to function despite their impairments can be considered by courts in determining whether an individual is “disabled” under the ADA. See also Albertsons Inc. v. Kirkingburg, 527 U.S. 555 (1999) (correctable poor vision), and Murphy v. United Parcel Serv., 527 U.S. 516 (1999) (high blood pressure treatable with medication).
One of the stated purposes of the ADA Amendments was “to reject the requirement … that [disability] be determined with reference to the ameliorative effects of mitigating measures.” Pub. L. No. 110-325 § 2(b)(2), 122 Stat. at 3554. To that end, the ADA Amendments provide that mitigating measures may not be considered in determining whether an individual is disabled, with the exception of “ordinary eyeglasses and contact lenses.” The ADA Amendments give several examples of mitigating measures:
(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications.
By this provision, Congress significantly expanded the class of individuals deemed “disabled” under the ADA to include individuals who, although impaired, are able to function and perform their jobs with the assistance of medication or other aids.
Changes to the “regarded as” prong
As stated above, individuals who are “regarded as” disabled by an employer are subject to the ADA’s protection. Before the ADA Amendments, a litigant would have to show that the employer perceived him or her as being substantially limited in one or more major life activities to establish that he or she was “regarded as disabled” by the employer. See Sutton at 489. This was considered a fairly high hurdle for plaintiffs.
Under the ADA Amendments, an employee now need only show that the employer views the employee as having an “impairment”—without regard for the impact of the perceived impairment on major life functions. Pub. L. No. 110-325 § 4(a), 122 Stat. at 3555 (to be codified at 42 U.S.C. § 12102(3)(A)). This seemingly technical change relieves the litigant of the burden of proving that the employer believed he or she was limited in a major life activity. All an employee has to prove is that the employer believed the employee was impaired and took some action adverse to the employee.
Despite the general pro-employee effect of the ADA Amendments, several provisions tweak the “regarded as” prong of the ADA’s definition of “disability” in an “employer-friendly” way. First, the ADA Amendments clarify that individuals who are disabled under the “regarded as” prong are not entitled to any “reasonable accommodation” of their perceived disability. Pub. L. No. 110-325 § 6, 122 Stat. at 3558 (to be codified at 42 U.S.C. §12201(h)). Further, employees with “transitory” impairments, defined as those with an actual or expected duration of six months or less, may not bring claims under the “regarded as” prong. Pub. L. No. 110-325 § 4(a), 122 Stat. at 3555 (to be codified at 42 U.S.C. §12102(3)(B)).
Retroactivity of the ADA Amendments
Implications of the ADA Amendments
This development, along with new rules of construction, the broadening of the definition of “major life activity,” the elimination of the consideration of mitigating measures, and the changes to the “regarded as” prong of the ADA’s definition of “disability,” means that employers and their attorneys are less likely to prevail in disability discrimination cases by arguing that the plaintiff is not “disabled.” The focus in ADA cases will change significantly. And this is as Congress intended. In wrongful discharge/discipline claims, attention will now shift to whether the employer has a legitimate non-discriminatory reason for its decision. In this respect, these types of ADA cases can be expected to become more like typical Title VII cases.
As indicated above, one purpose of the Amendments Act was “to convey … the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.” Pub. L. No. 110-325 § 2(b)(5), 122 Stat. at 3554. This is a veiled declaration that Congress expects most ADA cases to focus on whether the employer met its obligations to accommodate the disabled.
Thus, more cases in the future will address employers’ alleged “failure to accommodate,” including whether the employers engaged in the “interactive process” required under the ADA. Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Number 915.002, www.eeoc.gov/policy/docs/accommodation.html, Question 1. With that in mind, employers will find it advisable to expend more effort in engaging in the interactive process prescribed by the ADA with respect to almost any individual with a colorable impairment.
NC/SC Joint Conference
2010 Bar Convention
Articles are needed for the next issue of the Employment & Labor Law Section newsletter. If you are interested in submitting an article, please forward your submission to:
Richard “Al” A. Phinney
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Your suggestions and input is needed for proposed speakers and topics for future online seminars and distance learning seminars. Please forward comments to Tara Smith at 803-799-6653/877-797-2227, ext. 146 or email@example.com.
This is a newsletter for the South Carolina Bar’s Employment and Labor Law Section. The South Carolina Bar and the Section council members reserve the right to refuse to publish any submission which is not consistent with their goals and standards. Articles that are published reflect only the opinions of their authors; they do not represent or reflect any positions held by the South Carolina Bar or the Section officers and council members. It is the policy of this newsletter that on all submissions of original articles, the authors assign their copyright in the work to the South Carolina Bar. Publisher may reprint, or authorize other entities to reprint, the material as deemed appropriate. The publisher has the right to authorize the reproduction, adaptation, public distribution and public display of the article as a contribution to this newsletter in electronic media, computerized retrieval systems and similar forms; such authorization includes use of the article anywhere in the world by means of public display, conversion to machine readable form and reproduction and distribution of copies. The South Carolina Bar is not required to secure the consent of the author before exercising the above named rights. In addition, the Bar has no duty or responsibility to negotiate, collect or distribute any royalties in connection therewith.