IN THIS ISSUE:
Lilly Ledbetter Fair Pay Act of 2009
Redefining "Disabled" - The ADA Amendments Act of 2008
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2009 Section Officers

Chair
Charles E. “Chuck” McDonald III
Ogletree Deakins Nash Smoak & Stewart, PC
P.O. Box 2757
Greenville, SC 29602
(864) 271-1300
Fax: (864) 242-0037
charles.mcdonald@ogletreedeakins.com

Chair-Elect
Nekki Shutt

Callison Tighe & Robinson, LLC
P.O. Box 1390
Columbia, SC 29202
(803) 256-2371
Fax: (803) 256-6431
nekkishutt@ctrlawfirm.co

Vice-Chair
David Rothstein
Burnette and Rothstein, PA
2322 Devine St.
Columbia, SC 29205
(803) 251-0202
Fax: (803) 251-0222
derothstein@mindspring.com

Secretary
Molly Cherry

Nexsen Pruet, LLC
P.O. Box 486
Charleston, SC 29402
(843) 577-9440
Fax: (843) 720-1777
mcherry@nexsenpruet.com

Council Members

Section Delegate
Amy Yager Jenkins
McAngus Goudelock & Courie, LLC
P.O. Box 877
Charleston, SC 29402
(843) 576-2917
Fax: (843) 534-0605
amy.jenkins@mgclaw.com

Immediate Past Chair
J. Hagood Tighe
Fisher & Phillips, LLP
P.O. Box 11612
Columbia, SC 29211
(803) 255-0000
Fax: (803) 255-0202
htighe@laborlawyers.com

CLE Coordinator
Charles "Fred" Manning II
Fisher & Phillips, LLP
P.O. Box 11612
Columbia, SC 29211
(803) 255-0000
Fax: (803) 255-0202
fmanning@laborlawyers.com

Newsletter Coordinator
Richard "Al" A. Phinney
Ogletree Deakins Nash Smoak & Stewart, PC
P.O. Box 2757
Greenville, SC 29602
(864) 271-1300
Fax: (864) 242-0037
al.phinney@odnss.com

EEOC Liaison
Mary M. Ryerse
EEOC Charlotte District Office
129 W. Trade St., Ste. 400
Charlotte, NC 28202
(704) 344-6886
Fax: (704) 344-6780
mary.ryerse@eeoc.gov

Committee Chairs

EEO Committee
Kristine L. Cato
McAngus Goudelock & Courie, LLC
P.O. Box 12519
Columbia, SC 29211
(803) 227-2277
Fax: (803) 748-0526
kcato@mgclaw.com

Immigration Committee
Melissa L. Azallion
Nexsen Pruet, LLC
P.O. Box 23526
Hilton Head Island, SC 29925
(843) 689-6277
Fax: (843) 682-1577
mazallion@nexsenpruet.com

Labor Management
Relations Committee

Allan R. Holmes
Gibbs & Holmes
P.O. Box 938
Charleston, SC 29402
(843) 722-0033
Fax: (843) 722-0114
aholmes@gibbs-holmes.com

Membership Committee
Amy L. Gaffney
Gaffney Lewis & Edwards, LLC
3710 Landmark Dr., Ste. 304
Columbia, SC 29204
(803) 790-8838
Fax: (803) 790-8841
agaffney@glelawfirm.com

Occupational Safety & Health Committee
R. Hayne Hodges III
McNair Law Firm, PA
P.O. Box 11390
Columbia, SC 29211
(803) 799-9800
Fax: (803) 753-3278
hhodges@mcnair.net

Specialization Committee
Debbie Durban
Nelson Mullins, LLP
P.O. Box 11070
Columbia, SC 29211
(803) 255-9465
Fax: (803) 256-7500
debbie.durban@nelsonmullins.com

Notes from the Chair
Charles E. McDonald III
Ogletree Deakins Nash Smoak & Stewart, PC, Greenville

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 al.phinney@odnss.com 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.

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Supreme Court Rejects Mixed-Motive Theory in ADEA Cases
Bryn C. Sarvis
Duff, White & Turner, LLC, Columbia

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 2003, FBL Financial Group, Inc. (FBL) reassigned Jack Gross, a 54-year-old claims administration director, to a claims project coordinator position. According to FBL, Gross’ new position better suited his skills and was taken as part of a corporate restructuring. Many of his former job duties were transferred to the claims administration manager, a newly created position held by Gross’ former subordinate, who was in her early forties. At the time of his reassignment, Gross had been employed by FBL for many years and had been promoted on several occasions during the course of his employment. Though he had been promoted to claims administration vice president in 1999, FBL reassigned him to claims administration director in 2001. His job duties did not change, but Gross viewed this reassignment as a demotion because it affected his salary grade. When Gross was reassigned again in 2003, he and the claims administration manager received the same compensation, but Gross considered his new position to be a demotion nonetheless because he believed the claims administration manager position was the functional equivalent of his former position.

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
The question presented to the Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motive jury instruction in a non-Title VII discrimination case. Before answering the specific question presented, the Court determined that the essential question was whether mixed-motive jury instructions were available in ADEA cases at all.

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
The Court’s holding should have little implication for employers with respect to training and other preventive measures. Employers should, however, continue to emphasize to managers and supervisors that the best practice is to avoid considering age whenever possible when determining employment matters. From the standpoint of employment defense, however, it will be interesting to see the significance of the Court’s passing reference to the fact that it has never definitively decided whether McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny, utilized in Title VII cases, are applicable to the ADEA. The case is most significant, however, because it places a much higher burden on ADEA plaintiffs than on Title VII plaintiffs. Whether this will remain the case is yet to be seen, as the political climate is ripe for Congress to address the differing burdens.

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Supreme Court Issues Ruling in Firefighter "Reverse" Discrimination Case
R. Allison Phinney
Ogletree Deakins Nash Smoak & Stewart, PC, Greenville

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).

Factual background
In 2003, the City of New Haven administered exams for promotion to lieutenant and captain—as required by the city charter—that were designed by a third-party contractor. Under a union collective bargaining agreement, the written exams made up 60 percent of an applicant’s overall score, while an oral exam would account for 40 percent. With one exception, all employee panels that conducted the oral exams were comprised of one African-American, one Hispanic and one white employee.

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.

Legal analysis
The Court first considered the Title VII issue. Title VII prohibits both intentional discrimination (“disparate treatment”) as well as unintentional discrimination that results from practices that, while not intended to discriminate, have a disproportionately adverse effect on members of a particular classification (“disparate impact”).

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.

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Lilly Ledbetter Fair Pay Act of 2009
Charles L. Appleby IV
Collins and Lacy, PC, Columbia

Lilly Ledbetter Fair Pay Act of 2009

Who:

  • Individuals claiming pay discrimination 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)

What:

  • 300 day statute of limitations for filing a pay discrimination claim with the EEOC or SCHAC is reset each time an employee receives a paycheck, benefits or other compensation (Note: The statute of limitations in non-deferral states is 180 days.)
  • Broadens the definition of an unlawful employment practice to include any “other practice” that affects an employee’s compensation

When:

  • Signed by President Obama on January 19, 2009
  • Effective as of May 28, 2007 (retroactive)

Where:

Companies with the following number of employees for pay discrimination under:

  • Title VII (race, color, religion, gender and national origin) - 15 employees
  • ADA (disability) - 15 employees
  • ADEA (age) - 20 employees

Why:

  • Congress wanted to “fix” the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which held that the period for challenging pay discrimination starts to run when an employer first makes the allegedly discriminatory decision, not each and every time the employee later feels the effect of such a decision by receiving a paycheck.

Websites:

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.
Facts
Lilly Ledbetter (Ledbetter) worked for Goodyear Tire and Rubber Company (Goodyear) from 1979 to 1998. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621 (2007). For the majority of her time at Goodyear, she worked as an area manager, a position largely occupied by men. Id. at 643. During this time, salaried employees at the plant were given or denied raises based on their supervisors’ evaluation of their performance. Id. at 621.

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.

Issue
Are pay discrimination claims considered timely brought “when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period[?]” Id. at 623.

Holding
The majority found that Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. Id. at 629. They focused on the ruling in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), in which the Court held that “discrete acts” of discrimination must be challenged within 180 days of their occurrence. Id. at 113.

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.

Dissent
Justice Ruth Bader Ginsburg wrote a strongly worded dissent. In the dissent, she stated “compensation disparities … are often hidden from sight. It is not unusual … for management to decline to publish employee pay levels, or for employees to keep private their own salaries.” Id. at 650. She went on to urge Congress to address and correct the “cramped interpretation” of the majority, which she believed was “incompatible with the statute’s broad remedial purpose.” Id. at 661. To close, she charged, “Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.” Id.

Effect of Ledbetter ruling
Before the Court’s decision in Ledbetter, most federal courts and the EEOC followed the paycheck accrual rule based on the earlier Supreme Court decision in Bazemore v. Friday, 478 U.S. 385 (1986). In that case, all members of the Court joined Justice Brennan’s separate opinion in which he wrote: “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.” Id. at 395. The Ledbetter decision rejected the paycheck accrual rule. After the Ledbetter decision, an employee was required to file a disparate pay claim based on gender discrimination under Title VII within 180 days of receiving the first paycheck after a discriminatory pay decision was made. The employee was only allowed this 180 day period, even if the employee was unaware of the disparity.

Legislative action
On June 22, 2007, one month after the Supreme Court’s ruling in Ledbetter, U.S. Rep. George Miller (D-CA) introduced H.R. 2831, the Lilly Ledbetter Fair Pay Act of 2007. While the Ledbetter Act quickly passed in the House, the votes fell short in the Senate and it was tabled for the rest of the 110th Congress.

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
The Ledbetter Act expressly overturns the Supreme Court’s decision in Ledbetter. In the preamble, Congress said the Supreme Court decision in Ledbetter “significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades.” Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, Preamble. Furthermore, the decision “ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.” Id.

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:

  1. a discriminatory compensation decision or other practice is adopted;
  2. an individual becomes subject to a discriminatory compensation decision or other practice; or
  3. an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.”

Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3.

Litigation issues created by the Act
The following language in the Ledbetter Act is not defined and likely to be the center of future litigation involving the Ledbetter Act. Sen. Barbara Mikulski (D-MD) assured senators that other than extending the allowable time to file a charge for pay discrimination, the bill did not change existing law. However, amendments that would have guaranteed these assurances were defeated.

“when an individual is affected by”
An unlawful employment practice occurs with respect to disparate pay “when an individual is affected by application of a discriminatory compensation decision or other practice.” Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3. The terms “when an individual is affected by” may open the door for non-employee individuals to file suit under the Ledbetter Act since family members the employee supports financially are affected by the amount of compensation the employee receives.

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”
An unlawful employment practice occurs with respect to disparate pay when “an individual is affected by application of a discriminatory compensation decision or other practice.” Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3. The phrase “or other practice” could encompass nearly every possible adverse employment action that potentially affects pay, including, but not limited to, starting pay and initial job placement decisions, failure to provide mentoring or training opportunities, performance reviews, promotions, and so on.

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”
An unlawful employment practice occurs with respect to disparate pay when an individual is affected by application of a discriminatory compensation decision or other practice, “including each time wages, benefits, or other compensation is paid.”Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3. The terms “benefits, or other compensation” could apply to the full gamut of entitlements that an employer’s discriminatory decision could impact, including health benefits, paid leave, bonuses, stock options, retirement payments and pensions. The only clarification provided by the Act is in Section 2, part 4, which states, “Nothing in this Act is intended to change current law treatment of when pension distributions are considered paid.” This clarification preserves the rule that “pension distributions are considered paid upon entering retirement and not upon the issuance of each annuity check.” See H.R. Rep. No. 110-237, at 18 (2007) citing Florida v. Long, 487 U.S. 223, 239 (1988); Maki v. Allete, Inc., 383 F.3d 740, 744 (8th Cir. 2004.)

“similar or related to”
Plaintiffs are entitled to back pay for the two years preceding the filing of the charge “where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices.” Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3. The terms “similar or related to” are not defined in the Ledbetter Act. Therefore, they are likely to be the subject of future litigation as employers assert statute of limitations defenses to back pay for some prior pay differences by alleging the prior pay differences were not caused by unlawful employment practices that are “similar or related to” the practices that caused pay differences during the charge period.

Unchanged
The Act does not change the limit on recovery of back pay. Employees are still only entitled to recover back pay for a maximum of two years preceding the filing of a discrimination charge under Title VII. In addition, the Act does not prevent an employer from asserting that an employee’s claim is time-barred under the equitable doctrines of waiver, estoppel or laches. 155 Cong. Rec. S754 (daily ed. Jan. 22, 2009) (statement of Sen. Mikulski).

Additional failed amendment
Sen. Kay Bailey Hutchinson (R-TX) offered an amendment (SA 25) based on her Title VII Fairness Act (S.166) that would have started the 180 day limitations period running only when an employee reasonably suspects, or should reasonably suspect, the discriminatory action. This kind of filing deadline, commonly known as a “discovery rule,” protects employees who are kept in the dark about pay disparities. The Hutchinson amendment was defeated 40-55.

Recommendations for employers
The Ledbetter Act makes it easier for employees to bring claims alleging pay discrimination. It is also more likely that such claims will be pursued because of the publicity the Ledbetter Act received and the current tough economic climate. To reduce the risk of potential liability, employers must review their human resources, benefits and compensation practices to ensure they are consistently applied from the time of the employee’s hiring through the employee’s tenure with the company. Because of the detailed documentation that would be needed to deny a claim that a discriminatory compensation decision had been made at any point during an employee’s tenure, employers need to make changes and take precautions to protect themselves, which will certainly be costly. The following are some, but certainly not all, of the precautions an employer should take to minimize liability:

  • Specific Criteria for Compensation Decisions
    • Develop objective, measurable guidelines for compensation decisions to ensure decisions are made in a consistent and uniform manner within a job classification, work group or department.
  • Training
    • Train managers and supervisors on how to conduct a performance evaluation.
    • Explain to managers and supervisors during training that claims can be made on almost any personnel action and documentation as to the objective reasons for why decisions are made one way or another is necessary for the company to defend against these claims.
    • Highlight to all employees during training that an internal complaint system exists and is available to address any concerns about inconsistencies in pay.
  • Review
    • Adopt a system to ensure compensation decisions as well as terminations, promotions, discipline or other personnel actions are reviewed by a committee or higher level management.
    • Require supervisors and managers to sign a document which states their reasoning for any pay adjustments.
  • Document Creation and Retention
    • Document reasons for all pay decisions.
    • Retain complete personnel files at least until the employee is deceased.
    • Maintain contact information for former managers and supervisors, even if retired, who made decisions that might have affected compensation. Periodically confirm the contact information is still correct.
  • Conduct Self-Audits Now and Periodically in the Future
    • Conduct a self-audit of all company positions to determine if there are any current pay differences, and if so, determine the rational for such differences.

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Redefining “Disabled” – The ADA Amendments Act of 2008
Phillip Kilgore and John Merrell
Ogletree, Deakins Nash Smoak & Stewart, PC, Greenville

This article originally appeared in the July 2009 issue of the South Carolina Lawyer.

Introduction
The ADA Amendments Act of 2008 (ADA Amendments) was signed into law by President George W. Bush on September 25, 2008, and became effective January 1, 2009. The ADA Amendments amend the Americans with Disabilities Act of 1990 (ADA), which is the comprehensive set of federal laws governing discrimination against individuals with disabilities or those who are “regarded as” disabled.

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 prohibits employers from discriminating against “qualified individuals” with a “disability.” 42 U.S.C. § 12112(a). The ADA establishes three prongs of protection, defining “disability” as: “(1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). Thus, the “disabled persons” the ADA protects are persons who fall into one of three categories:  those who actually have a disability; those who may have been disabled in the past; and those who others consider to be disabled.

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”
While the ADA was clearly intended to protect individuals with impairments or who were regarded as having impairments, critics complained that recent U.S. Supreme Court decisions had effectively gutted the ADA. They argued that these cases narrowed the definition of “disability” to the point where few employees were deemed covered under the ADA.

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
The best summary of the changes brought about by the ADA Amendments is the “Purposes” section of the bill itself. Among the purposes are:

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc. . . . that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;
(3) to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc. … with regard to coverage under the third prong of the definition of disability [i.e., “regarded as disabled”] and to reinstate … a broad view of the third prong …;
(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Mfg., Inc. v. Williams… that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled” and that to be substantially limited in performing a major life activity under the ADA, “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”;
(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Mfg., Inc. v. Williams … for “substantially limits” … has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is 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, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis; and
(6) to express Congress’ expectation that the Equal Employment Opportunity Commission [EEOC] will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with this Act, including the amendments made by this 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 ADA provides that an individual with an impairment is “disabled” if the impairment “substantially limits” him or her in a major life activity. 42 U.S.C. § 12102(2)(a). In Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 197 (2002), the Supreme Court held that an individual must meet a “demanding standard” for showing that he or she is “substantially limited” in a major life activity.

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
First, the ADA Amendments codified a rule of interpretation requiring that the “disability” definition “be construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA].” Pub. L. No. 110-325 § 4(a), 122 Stat. 3555 (to be codified at 42 U.S.C. § 12102(4)(A)).

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.

Rulemaking
Fifth, the ADA Amendments direct the EEOC to redefine the term “substantially limits” as used in the ADA. Pub. L. No. 110-325 § 2(b)(6), 122 Stat. at 3554. As of the date of this article, the EEOC had not yet promulgated any such regulation. Nevertheless, courts undoubtedly will take note of admonition that “Congress finds that the current [definition of] the term ‘substantially limits’ as ‘significantly restricted’ [is] “inconsistent with congressional intent, by expressing too high a standard.” Pub. L. No. 110-325 § 2(a)(8), 122 Stat. at 3554.

Expanding the definition of “major life activity”
The sixth way the ADA Amendments broaden the definition of “disability” is by codification and expansion of the EEOC definitions of “major life activity” in the ADA.

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
The seventh way the ADA Amendments broaden the definition of disability is by making clear that the courts should not take into consideration mitigating measures in determining whether an individual is impaired.

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.
Pub. L. No. 110-325 § 4(a), 122 Stat. at 3556 (to be codified at 42 U.S.C. § 12102(4)(E)(i)(I)-(IV)).

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
The ADA Amendments also redefine the “regarded as” prong included in the ADA’s definition of “disability.” 

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
The ADA Amendments became effective on January 1, 2009, but do not state whether they will apply retroactively. As of the date of this article, at least one U.S. Court of Appeals has held that the ADA Amendments do not apply retroactively. E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, n.8 (5th Cir. 2009). See also Vaughn v. Rent-A-Center, Inc., 2009 WL 723166 at n.1 (S.D. Ohio Mar. 16, 2009) and Kingston v. Ford Meter Box Co., Inc., 2009 WL 981333 at n.4 (N.D. Ind. Apr. 10, 2009). Assuming other courts follow this lead, the ADA Amendments should apply only in cases where the actions giving rise to the plaintiffs’ claims occurred on or after January 1, 2009.

Implications of the ADA Amendments
The practical effect, indeed the intent, of the ADA Amendments will be for many more ADA plaintiffs to be considered by courts to be “disabled.” Employees no longer have to show that they had an impairment that “prevented or severely restricted” them in one or more major life activities. The ADA Amendments direct the EEOC to come up with another definition of “substantially limits” to create a lower threshold for ADA protection.

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.

Predictions
Congress has directed the EEOC to implement many of the changes through new regulations. Employers and employees can expect EEOC to:

  • edefine “substantially limits” to mean something substantially less than “significantly restricted.”
  • Add new categories of “major life functions.”
  • Define the major life function of “working” to include inability to perform a single job.
  • Require deference to medical diagnoses and discourage individualized, nonmedical assessments.
  • Give weight to employers’ own job requirements as evidence of substantial limitations to the major life function of working.
  • Make clear that being “regarded as disabled” relative to a single job will be sufficient for protection.
  • Identify vision requirements for jobs as possible bases for “regarded as” protection.
  • Establish a “bright-line” rule that impairments with an actual or expected duration of more than six months are not transitory or minor and therefore entitled to protection.

Conclusions
As a result of ADA Amendments, more employees will be deemed to be actually “disabled” and “regarded as disabled.” Employers will now begin to focus on other issues, such as job qualification, ability to perform “essential job functions,” “reasonable accommodation” and the need to engage in the “interactive process.” Without a doubt, the ADA Amendments have changed the face of disability discrimination law. Employers and lawyers should expect the ADA Amendments to be the subject of litigation for years to come.

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Save the Date

NC/SC Joint Conference
October 23 & 24, 2009
Francis Marion Hotel, Charleston
To register, please visit www.scbar.org/cle.

2010 Bar Convention
January 21 – 24, Kiawah Island Golf Resort
Section Seminar is scheduled for Friday, January 22, 8:30-11:45 a.m.
To register, please visit www.scbar.org/convention.

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Get Published

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
Ogletree Deakins Nash Smoak & Stewart, PC
P.O. Box 2757
Greenville, SC 29602
Fax: (864) 242-0037
al.phinney@odnss.com

In addition to your proposed article, please include your name, firm and your e-mail address so this information can be included in the newsletter.

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 tsmith@scbar.org.

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Disclaimer

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.

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