May 6, 2011
The EEOC has reported that it receives more charges of retaliation than any other type of employment discrimination charge, and that there are thousands of cases involving allegations of illegal retaliation filed every year. Retaliation is often prohibited by statute, but the Supreme Court has expanded the scope of actionable retaliation lately, holding that there was a cause of action for retaliation even though the statute in question did not expressly cover the situation at issue.
The Fair Labor Standards Act (FLSA) prohibits discrimination against an employee “because such employee has filed any complaint” under the Act. In Kasten v. Saint Gobain Performance Plastics Corp. (PDF), 563 U.S. ___ (2011), the U.S. Supreme Court held that, although there can be no retaliation if the employer is not on fair notice of the initial complaint, a complaint need not necessarily be in writing to trigger protection under the Act.
May 4, 2011
The Equal Employment Opportunity Commission (“EEOC”) recently issued the final Regulations interpreting the ADA Amendments Act of 2008 (“ADAAA”). The Regulations become effective on May 24, 2011. It has taken the EEOC over two (2) years from the effective date of the ADAAA (January 2009) to issue the regulations. The ADAAA and the Regulations are designed to change the focus of inquiries under the American with Disabilities Act of 1990 (“ADA”) from whether an individual’s impairment meets the definition of a “substantial impairment” that constitutes a disability, to issues of discrimination, qualifications, the interactive process, and reasonable accommodation.
The Regulations also lower the bar for finding a “substantial limitation,” and the Regulations take the position that an impairment need not last a particular length of time to qualify under the ADAAA –an impairment lasting less than six months can be “substantially limiting.” Most ADA claims will now focus on whether the employee is qualified for the job, whether a reasonable accommodation was offered, whether the employer engaged in the interactive process to discuss possible accommodations in good faith, and whether any employer action was caused by an individual’s disability, record of disability, or being regarded as disabled.
May 2, 2011
At the recent ALI-ABA program on Advanced Employment Law and Litigation, two high level officials of the Equal Employment Opportunity Commission spoke on the major issues that will face employers at their agency this year.
One emphasis will be in the field of disability discrimination. The EEOC has issued new regulations which auger an increase in claims and cases in this area. The definition of disability is now so broad that there may be few employees who do not reach that threshold, whether the disability is temporary, or the employee has recovered or is “regarded as” having the disability. The emphasis for employers will be on whether the alleged victim can perform the essential functions of the job and what reasonable accommodation can be made to allow him or her to qualify for the position. Employers are well advised to pay strict attention to job descriptions to identify the essential functions of each job and to engage in a discussion of what accommodations are “reasonable” before rejecting an applicant with a disability or refusing to make a particular accommodation on the grounds that it is not reasonable. A comprehensive analysis of the major changes in ADA enforcement can be found in the firm’s Act Now Advisory.