ADA

EMPLOYER ALERT – NO DIPLOMA, NO JOB?

A hard and fast rule that all job applicants must have a high school diploma can get you in trouble.  The Equal Employment Opportunity Commission has published new rules about how the Americans with Disabilities Act (ADA) applies to people without a high school diploma. Immediately rejecting someone for lacking a high school diploma could be considered discrimination. At first, this sounds like a terrifying and ridiculous rule, but it’s much more nuanced than it first seems. As long as an employer is aware of the rule and how it works, there shouldn’t be any issue (you don’t have to hire someone who isn’t qualified).

The rule has to do with people who did not complete high school because of some disability that prevented them from doing so. If you require a high school diploma to be hired for a job, and an applicant tells you that they were unable to get a high school diploma because of a disability, then all this rule means is you should allow the applicant to show some other evidence proving that they are qualified.

It’s still your decision who to hire, and you can choose another candidate if they are more qualified or simply a better fit for your organization. What’s important though is to give everyone a chance to prove their qualifications, instead of simply rejecting an applicant out of hand solely because they don’t have a diploma.

In practice, this won’t actually affect smart businesses much at all (since just allowing someone a chance to prove qualifications in other ways is a pretty minor accommodation), but it could hurt businesses who are unaware of the new rule. Luckily, you now know how this works, and so you know how to avoid getting in trouble with the EEOC.

Read more about this new rule here:

http://www.eeoc.gov/eeoc/newsroom/wysk/high_school_ada.cfm

IN THE NEWS – FEDERAL COURT RULES SEVERE OBESITY PROTECTED UNDER ADA

Firing an employee because they are severely overweight violates the Americans With Disabilities Act Amendment Act of 2009 (“the ADAAA”), according to a decision by a federal district court in Louisiana on December 6, 2011, denying an employer’s motion for summary judgment. The EEOC brought the case on behalf of Lisa Harrison, an employee who weighed 400 lbs when she was hired and weighed 527 lbs when she was fired, allegedly because her employer thought her excessive weight limited her ability to perform her job.

This is one of only a few court cases to tackle this issue since the ADA was amended in 2009, expanding the definition of an impairment that constitutes a disability. Under the new regulations, the definition of impairment does not include weight that is within a “normal range” unless it is the result of a physiological disorder. The EEOC (which investigates employment discrimination claims), states in its compliance manual for employers that although “being overweight, in and of itself, is not generally an impairment, . . . severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” The EEOC has also noted that other recognized disabilities, such as diabetes, hypertension or thyroid disorders, often go hand-in-hand with obesity.

Recently, the EEOC filed another obesity case in federal court in Texas against BAE Systems, Inc., alleging that the company fired employee Ronald Kratz, II, from his job as a material handler because he was morbidly obese. No ruling has been entered yet in that case.

It seems clear, however, that we can expect a growing number of obesity discrimination cases to be filed under the ADAAA. Some cases will involve individuals who clearly fit the definition of severe obesity. Whether the law applies in other cases, where the employee is simply overweight, will hinge on whether or not the employee’s weight is a result of an underlying physiological disorder. And still others will involve “perceived disability” – the law also protects individuals who, although they are not actually disabled, are discriminated against by their employer because their employer regarded them as having a disability. Accordingly, if a supervisor assumes that an overweight person is substantially limited in the ability to perform their job and discriminates against the employee on that basis, your company could be liable under the ADAAA regardless of whether the employee’s weight problem actually was severe enough to qualify as a disability.

More than one-third (33.8%) of Americans are obese, according to a study released by the Center for Disease Control (“CDC”) this year. And the number has been increasing steadily over the past 20 years. See http://www.cdc.gov/obesity/data/trends.html. The CDC measures obesity using height and weight to calculate a person’s body mass index (“BMI”). An adult with a BMI over 25 is considered overweight. If their BMI is 30 or higher they are considered obese. For example, an individual who is 5’9” and weighs 169 lbs. is overweight, according to the CDC. And if they weight 203 lbs. or more, they are obese. See http://www.cdc.gov/obesity/defining.html.

What does this mean for your business? It means roughly one-third of your workforce (and one-third of your job applicants) fall into the definition of obese. Those individuals may or may not be actually considered disabled under the ADAAA. But remember – even if they are not severely obese, they still may be protected under one of two other ADAAA qualifiers: (1) if their excessive weight is a result of a physiological disorder (not something you’ll be inquiring about during a job interview); or (2) if you perceive them to have a weight-based disability.

The bottom line: although weight is not a “protected class” like race, sex, age, national origin and religion under Title VII, it is being increasingly recognized by the courts as a disability under the ADAAA, a law which prohibits discrimination against individuals based on their disability. And the EEOC has made it abundantly clear that it views obesity as the new frontier for enforcement.

The best practice is to make sure all hiring and supervisory personnel in your organization are instructed not to make any employment decisions based on an individual’s weight or any stereotypes about overweight workers. Of course, employees must be able to perform the actual physical requirements of the job, but you should steer clear of making assumptions about an individual’s ability based on obesity. And employee requests for reasonable accommodations based on weight should be taken seriously.

IN THE NEWS – CONGRESS EXPANDS ADA DEFINITION OF DISABILITY

The ADA Amendments Act of 2008, a compromise bill that expands ADA coverage to employees with a variety of disabilities previously excluded by the courts, has been passed by Congress, and it is anticipated that President Bush will sign it into law shortly.

According to the summary of the legislation posed on the Library of Congress’ online public access “Thomas” page (http://thomas.loc.gov/), the amendment:

Sets forth rules of construction regarding the definition of “disability,” including that: (1) such term shall be construed in favor of broad coverage of individuals under the Act; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; (3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (4) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.

What does this mean for employers? Primarily, this means taking a closer look at how your HR policies define “disability,” taking steps to ensure compliance in your hiring, discipline, promotion and firing policies, and ensuring that the new criteria is used when viewing requests for accommodation or employee complaints under the ADA on a case-by-case basis.

As a practical matter, the amendment may bring clarity to gray areas that were previously the subject of judicial interpretation, such as whether an individual with cancer has a disability under the ADA, and whether employees who suffer from serious medical conditions that are controlled by medication – like diabetes and epilepsy – are eligible for coverage. Under the amendment, both would be entitled to protection. The amendment also lays to rest disputes over whether individuals with prosthetic devices, such as artificial limbs, are qualified individuals with a disability under the ADA. (They are.)

Whether the new amendment – which has been lauded by business groups and employee rights advocates alike – will reduce litigation over the definition of a covered disability or simply lead to new issues to be litigated remains to be seen.

EMPLOYER ALERT – DISABILITY DISCRIMINATION CLAIMS ON THE RISE

The EEOC reports that disability discrimination claims increased by 14% last year, and now account for one out of every five discrimination charges filed against private employers. In the past year, the EEOC settled two cases against national retailer Wal-Mart. In the most recent case, Wal-Mart paid $250,000 in damages and agreed to provide training to its supervisors in a case involving failure to provide a reasonable accommodation to a pharmacist who was disabled from an earlier gunshot wound. In the other case, Wal-Mart paid $300,000 to settle a claim that it failed to hire a job applicant because she has cerebral palsy. Because the ADA applies to all businesses with 15 or more employees, small employers are equally at risk for claims, and the financial impact of a significant settlement or jury verdict can be devastating.

Protect your company from liability by following these guidelines:

  • Make sure job descriptions include the “essential functions” of the job, and leave out extraneous duties that could eliminate a disabled applicant from consideration.
  • Do not include requirements such as lifting, standing, etc. unless they really are essential to the job.
  • Avoid descriptions that favor a particular manner of performing physical tasks. For example, use “communicate with” instead of “speak with,” and “move” between locations instead of “walk” between locations.
  • In interviews, do not ask questions about a disability. Focus instead on the essential functions of the job. Ask all applicants – not just those who appear outwardly to have a disability – whether they can perform the essential functions of the job.
  • If a current employee requests a reasonable accommodation under the ADA, give careful consideration before making a decision. You are not required to provide the specific accommodation requested by the employee, nor are you required to provide an accommodation when doing so would cause an undue hardship on your company. You are also not required to eliminate an essential function of the job, or create a new job for the employee. However, you are required to provide a reasonable accommodation which would enable the employee with a disability to perform the essential functions of the job.