Employment Law Update - Summer 2008
The Supreme Court Expands Employees' Rights: Broadening the scope of relief for older workers and those who allege retaliation
By: Erin L. Roberts, Esq.
In a 2008 term marked by high-profile constitutional cases, the United States Supreme Court issued a series of employment law decisions focusing on age discrimination and broadening the scope of employees' rights and remedies under the Age Discrimination in Employment Act (ADEA) and other federal antidiscrimination statutes.
These decisions are somewhat surprising, given that this Court has been widely regarded as growing more conservative and pro-business under President Bush's appointments of Justice Alito and Chief Justice Roberts. Moreover, most enjoyed a decisive majority in favor of the employee, with the only one turning on a 5-4 majority being the rare holding for the employer.
In Gomez-Perez v. Potter and CBOCS West, Inc. v. Humphries, perhaps the two most wide-reaching decisions, the Court expanded employees' rights to pursue retaliation claims, holding that a cause of action for retaliation exists even if none is specifically provided for in the statute itself. First, Gomez-Perez involved a 45-year old postal worker who filed suit under the federal sector section of the ADEA, alleging that she was subjected to retaliation after filing an ADEA complaint. In CBOCS West, Inc., the case involved a Cracker Barrel employee who claimed that he was fired because he is black and because he complained about discrimination against a black coworker. Although he sued under both Title VII and 42 U.S.C. § 1981, his Title VII claims were dismissed and he pursued his retaliation claims solely under § 1981.
In both Gomez-Perez and CBOCS West, Inc., the statutory provisions prohibit "discrimination." However, unlike Title VII and the ADEA's private sector provisions, they fail to mention retaliation. Nevertheless, the Court held in favor of the employee in both cases, relying upon prior decisions involving statutes with similar language where a cause of action for retaliation was recognized. The holdings are especially significant in the context of § 1981 claims because this statute is often used to avoid the strict procedural framework under Title VII for claims of discrimination and now retaliation can likewise proceed directly to court.
Similar to Title VII, the ADEA requires filing an administrative charge with the Equal Employment Opportunity Commission (EEOC) before a suit can be maintained. In Federal Express Corp. v. Holowecki, the Court addressed what constitutes a "charge," holding that merely an intake questionnaire will suffice even though the actual charge form is never filed and the EEOC never investigates the charge. The Court upheld the EEOC's internal regulations, which define a "charge" as a document that when taken as a whole could be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate his or her rights. Again, the Court loosened the procedural framework and rendered it less of a bulwark against discrimination suits.
Once an action is filed in court, the burden is on the employee to prove his or her case. In Meacham v. Knolls Atomic Power Laboratory, however, the Court held that in disparate impact cases under the ADEA, the employer bears the burden of proving that the employment action was taken on the basis of a "reasonable factor other than
age." Here, the employer laid off thirty-one workers, thirty of whom were forty or older. The workers sued, claiming that the criteria employed to evaluate them for layoff had a disproportionate and discriminatory impact on older workers. The Court held that the existence of reasonable factors other than age was an affirmative defense to be put forth by the employer and the burden was on the employer to prove them. With this holding, the
Court has now imposed upon employers the onus of proving that they used reasonable criteria in making employment decisions, if the decision disproportionately affected older workers. The case signals an easier ability of plaintiffs to claim age discrimination in layoff situations.
As an employer "win," the Court issued a 5-4 decision in Kentucky Retirement Systems v. EEOC, holding that
Kentucky's pension plan, which imputes years of service to employees who become disabled prior to the normal retirement age but does not impute those years of service to employees who work past the normal retirement age and then become disabled, was not discriminatory under the ADEA. The slim majority determined that there was no discriminatory intent because, although pension status correlates to age, the two concepts are "analytically distinct," and the employment action taken did not involve the type of animus or stigma that the statute was created to remedy. The Court did note, however, that the use of pension status as a criterion for qualification or disqualification for certain benefits could be discriminatory if that status was used as a "proxy for age." Finally, the Court considered that this case involved broad, systematic standards rather than an individual employment decision and that, under the ADEA, such standards were to be treated more leniently.
Summary
It is clear from the selection and holdings of these cases that the Supreme Court was seeking to define the rights of an aging workforce. The message sent is that decisions which impact the aging workforce must be made carefully and based upon reasonable, justifiable criteria.
Maryland's Flexible Leave Act: Time to Update Your Employee Handbooks
By: Kevin C. McCormick, Esq.
Maryland's Flexible Leave Act may do more than allow your employees greater flexibility; it may complicate discipline or discharge for an employee who recently used his or her paid leave.
Effective on October 1, 2008, HB 40/SB 344 requires that Maryland employers with 15 or more employees must allow employees to take any paid leave (vacation, sick leave, or compensatory time) whenever a child, spouse or parent is ill.
Under the terms of the Act, an employer does not need to allow an employee to use unearned paid leave. To the extent possible, an employee who uses leave under this new leave act must comply with the terms of a collective bargaining agreement or employment policy, where applicable.
The Act has not defined what type of illness is sufficient to trigger coverage under the Act (e.g., a serious health condition as defined under the Family and Medical Leave Act or a disability as recognized under the Americans With Disabilities Act). Nor does the Act provide for verification of the illness.
It also includes an anti-retaliatory provision that prohibits an employer from (1) discharging, demoting, suspending,
disciplining, or otherwise discriminating against an employee, or (2) threatening to take any of these actions against an employee who exercises rights granted under the Act or who files a complaint, testifies against or assists in an action brought against an employer for violation of this new law.
With a recent upward spike in claims alleging retaliation for engaging in arguably protected conduct, this new Act provides another basis for an employee to make such a claim. As an employer, you will need to update policies within your employee handbook as a result of this legislation.
Is Expansion Of The Americans With Disabilities Act On The Horizon?
By: Jeanne M. Phelan, Esq.
On June 25, 2008, the U.S. House of Representatives overwhelmingly passed a bill (H.R. 3195) that would expand the protection of the Americans with Disabilities Act (ADA) to individuals who have less serious and correctable conditions. Because this bill is the product of negotiations between advocates for the disabled and business trade associations, including the U.S. Chamber of Commerce and the National Association of Manufacturers, it is viewed as being likely to be enacted. The Senate may consider the bill as early as this summer, and, if enacted and signed, it could take effect on January 1, 2009.
The bill, the ADA Amendments Act of 2008, is intended to reverse a series of Supreme Court cases decided in 1999 and the early 2000s that limited applicability of the ADA to individuals who had serious and long-term non-correctable conditions that interfered with activities that were of central importance to most people's daily lives. While these decisions were consistent with the language of the ADA, advocates for the disabled decried them as removing the most able disabled from the protection of the ADA.
The bill passed by the House would expand the definition of disability and the employer's obligations to include:
- Conditions that impose less significant restrictions: The ADA currently covers impairments that substantially limit one or more major life activities. In Toyota Motor Mfg. v. Williams, the Supreme Court determined that an impairment must be permanent or long-term and severe enough to prevent or severely restrict an individual's performance of activities that were of central importance to most people's lives. H.R. 3195 imposes the lesser standard of material restriction of a single major life activity and adds a more expansive list of activities and functions that are considered major life activities.
- Correctable conditions: In 1999, the Supreme Court issued a trilogy of decisions (Albertson's, Murphy v. UPS, and Sutton v. United Airlines) declaring that, to determine if a condition is substantially limiting, conditions that can be controlled or treated should be measured in the controlled or treated state. Under this standard, conditions such as vision corrected by eyeglasses and high blood pressure corrected by medication were not substantially limiting. H.R. 3195 would reverse this as to conditions other than correctable vision: the determination whether an impairment substantially limits a major life activity will be made "without regard to the ameliorative effects of mitigating measures" other than ordinary eyeglasses or contact lenses. Episodic impairments or impairments in remission will be covered if they materially restrict a major life activity when active.
- Proof of job-relatedness and business necessity for vision standards: If an entity uses uncorrected vision as a qualification or selection device, it must prove that the standard used is job-related for the position and consistent with business necessity.
- Perceived disabilities that are not serious: The "regarded as disabled" prong of the disability definition currently requires a belief that a person's non-disabling impairment substantially limits one or more major life activities. H.R. 3195 expands the category to include all conditions, regardless of whether they limit or are perceived to limit a major life activity. The only conditions excluded are those that are minor and have an actual or expected duration of six months or less.
Summary
How would employers be affected by this expansion of the ADA? Currently, many claims are dismissed at the EEOC and in the courts on the ground that the employee or applicant does not have an ADA-covered disability. If the expansion bill becomes law, this ground for dismissal will not exist, and an employer's ability to prevail in a claim will depend upon its ability to prove that no accommodation was possible to enable the individual to perform the essential functions of the position, that the necessary accommodation imposed an undue hardship, or that a reasonable accommodation was made.
The expansion is likely to increase the number of employees identifying disabilities and requesting accommodation,
the number of claims filed, and the cost and complexity of defending the claims. It will be necessary for employers to not only engage in, but properly document, their interactive exploration with employees with disabilities and their respective experts and advisors to determine if the employee is qualified and if reasonable accommodations can and should be made.