EEOC Issues Final Regulations for the ADA Amendments Act

On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the ADA Amendments Act (ADAAA), which prohibits employment discrimination on the basis of disability. The ADAAA was signed into law by President George W. Bush on September 25, 2008 and went into effect on January 1, 2009.

Under the ADAAA, the definition of disability “is to be construed in favor of broad coverage to the maximum extent permitted by the terms of the Act as amended.” Likewise, the EEOC’s implementing regulations are expressly intended to simplify the determination of who has a disability and make it easier for individuals to establish that they are protected by the Act.

Some significant aspects of the regulations include the following:

  • The new regulations do not include terms to quantify “substantially limits.” Instead, the regulations instruct that “substantially limits” should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the Act. “Substantially limits” is a lower threshold than “prevents” or “severely or significantly restricts.” Accordingly, an impairment does not need to “severely or significantly restrict a major life activity” to be considered substantially limiting.
  • The regulations state that the determination of whether an impairment “substantially limits a major life activity” must be made without considering whether that limitation can be mitigated by something external (for example, a hearing aid or medication). However, the ADAAA and the regulations do make a single exception for poor vision mitigated by eyeglasses or contact lenses.
  • In determining whether an activity is a “major life activity,” the regulations specify that the term “major” must not be interpreted strictly. Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.”
  • The regulations also clarify the “regarded as” prong of the definition of disability under the Act. Whether a person is “regarded as” disabled is defined by how that person has been treated as a result of a nontransitory physical or mental ailment, not by whether the employer believed he/she had a disability. The concepts of “substantially limits” and “major life activities” are not relevant in evaluating coverage under the “regard as” prong. Therefore, in order to have regarded an individual as having a disability, the employer need not have considered whether he/she was substantially limited in a major life activity, and an individual claiming to have been regarded as such need not demonstrate that he/she is substantially limited in a major life activity. Cases in which an applicant or employee does not require reasonable accommodation can be evaluated solely under the “regarded as” prong of the definition of disability.

Contact: Emily Ciecka Wilcheck
(419) 254-5260


US Supreme Court Declines to Hear Louisiana Case on Workers’ Compensation Benefits for Undocumented Workers

In a short decision released on February 28, 2011, the United States Supreme Court declined to hear a workers’ compensation case on appeal from an intermediate Louisiana appeals court, in which the appeals court found that an employer could not deny workers’ compensation benefits to an individual simply because he was an undocumented worker at the time of his injury.

The case, Vaughan Roofing & Sheet Metal, LLC v. Antonio Garcia Rodriguez, arose out of an injury sustained by Antonio Rodriguez while doing roofing work at the University of Louisiana-Lafayette. He was employed by a subcontractor and, under Louisiana state law, his workers' compensation claim was filed against the main contractor or "statutory" employer, Vaughan Roofing & Sheet Metal. Vaughan Roofing argued that it should not be held liable for the payment of benefits as it didn't directly hire Mr. Rodriguez and didn't know he was an undocumented worker at the time of the injury.

Vaughn Roofing fought the claim arguing that the Immigration Reform and Control Act of 1986 should preempt Louisiana, or any other state, from allowing undocumented workers to collect workers' compensation benefits. The Louisiana appellate court noted that it was "undisputed" that Mr. Rodriguez was an undocumented worker at the time of the injury, but cited a similar case, Artiga v. M.A. Patout and Son, 671 So.2d 1138 (1996), in determining that "there is no express statutory provision [in Louisiana] excluding undocumented workers from workers' compensation coverage."

While many states provide workers’ compensation benefits to all workers, even those that are undocumented at the time of injury, a number of states such as Virginia, Michigan, and Nevada have denied workers’ compensation benefits to undocumented workers through legislation. Further legislative action is expected on this issue as bills have been introduced in Ohio, Georgia, and Montana which may eliminate workers’ compensation benefits for undocumented workers.

This topic will most certainly be the subject of debate in the near future as legislators at the state level consider whether such legislation is indeed good policy. No doubt it will gain additional prominence once the debate over federal immigration legislation begins as well. Whichever way the debate turns, we will continue to update this space on developments as they occur.


Oral Complaints Enough for Retaliation Claims Under the Fair Labor Standards Act

Today, the Supreme Court issued its decision in Kasten v. Saint-Gobain Performance Plastics Corp. (No. 09-834). The Court determined that oral complaints can form the basis for retaliation claims under the Fair Labor Standards Act (“FLSA”). The FLSA does not permit employers “to discharge . . . any employee because such employee has filed any complaint.” Traditionally, the term “filed” was read by courts to mean that employees had to actually put their employer on notice with a written complaint. In Kasten, the Supreme Court determined that an employee’s verbal complaint regarding the placement of time clocks was enough to form the basis for a retaliation claim.

The Court’s decision increases the likelihood of employers facing retaliation lawsuits brought pursuant to the FLSA. Retaliation claims related to other employment statutes have been steadily increasing in the past few years. According to the Equal Employment Opportunity Commission (“EEOC”), retaliation claims rose from 18,198 filed in 1997 to 36,258 filed in 2010. Attorneys for plaintiffs also tend to assert retaliation claims in cases involving discrimination and harassment. Expect the same tactic in lawsuits brought for violations of the wage and hour provisions of the FLSA.

The FLSA permits employees to file civil lawsuits or to file complaints with the Department of Labor. The Supreme Court declined to definitively state that its decision applies to complaints made to employers or governmental agencies. The Court did state, “To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it . . . .” Because this test specifically uses the term “employer,” courts are likely to construe the Kasten decision as authorizing retaliation claims against private employers. The FLSA defines an employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” This is a broad definition and means that verbal complaints made to supervisors and managers will be treated as being made to the employer. It also means employees will attempt to bring retaliation claims directly against supervisors and managers.

Contact: Jon Secrest


Supreme Court Determines “Cat’s Paw” Discrimination Can Result in Liability

“The Monkey and the Cat” was a fable written by 17th Century French Poet, Jean de La Fontaine. Staub v. Proctor Hospital is a March 1, 2011 decision written by Justice Scalia of the United States Supreme Court. I very much doubt Fontaine ever figured his work would give rise to a legal theory used to impose liability upon employers, but it has been invoked to increase the potential for finding employers liable for discrimination.

“In The Monkey and the Cat,” the clever monkey tricks the cat into reaching into a fire to scoop out chestnuts. The cat burns his paw and the monkey enjoys the chestnuts. In employment law, the cat’s paw theory of discrimination was developed to impose liability upon an employer when the individual making the ultimate employment decision has no discriminatory bias or animus, but another individual that influenced the ultimate decision did possess a discriminatory bias or animus.

Staub was employed as an angiography technician at Proctor Hospital and was also an Army Reservist. His immediate supervisor and the next level supervisor were hostile regarding Staub’s military obligations. Staub was disciplined by these two supervisors. As a result of this discipline, Staub was terminated by the vice president of human resources (“HR Manager”) who possessed no hostility, but who relied on information provided by the two supervisors in making the decision to terminate Staub. Staub acknowledged that the HR manager had no discriminatory bias; however, the case proceeded to the Supreme Court to determine whether Staub could recover under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) based on the discriminatory bias of the supervisors.

The Court determined that even though a biased supervisor does not make the ultimate decision to terminate, liability may still exist if the supervisor’s discriminatory intent proximately caused the adverse employment action. The Court’s use of the term “intent” determines that an employer is liable if a supervisor commits an action based on discriminatory bias that was intended to cause an adverse employment decision.

To read more about the decision and how it affects employers, click here to view the full article on our website.

Contact:  Jon Secrest

2011 Roetzel Spring Training Employment Law Seminar

The Major League isn't the only one who should start thinking about spring training. With unemployment and discrimination claims on the rise, business owners and HR professionals need to be thinking about spring training too. Learn about recent developments in employment law, best practices to avoid claims, and important employment issues that may be headed your way. Grab some peanuts, get a good seat and join us for the 2011 Roetzel Spring Training Employment Law Seminar.

Starting Lineup:
Swinging for the Fence: You wouldn't believe the claims that plaintiffs' lawyers are bringing. Hear about crazy claims, unbelievable outcomes and bizarre facts in recent cases and more importantly, learn how to avoid being in the starting lineup for claims.

Field of Dreams: Social media has been built and the people came! Employees are utilizing social media before, during and after work. Learn how to make it work for you and not against you.

Sitting on the Bench: Unemployment claims are still on the rise. Hear from an expert on how best to deal with unemployment claims and appeals.

Locker Room Report: Get an inside look at what happens when an EEOC charge is filed. How to respond; how does the investigative process work; why does it take so long; and what happens after the findings? These questions and how the Lee County Office of Equal Opportunity, the EEOC and the Florida Commission on Human Relations intersect will be covered.

Denise L. Wheeler, Partner, Roetzel & Andress
Jaime A. Maurer, Senior Counsel, Roetzel & Andress
Karen D. Adinolfi, Associate, Roetzel & Andress
Paul Valenti, Lee County Office of Equal Opportunity

Date and Location:
Wednesday, March 16, 2011
Harborside Event Center
1375 Monroe Street
Fort Myers, FL 33901
8:00 - 8:30 Registration and Continental Breakfast
8:30 - 12:00 Program
12:00 - 1:00 Networking Lunch

Jennifer Ritter at 239.338.4256 or email jritter@ralaw.com


Proposed Overhaul of Ohio's Collective Bargaining Law: Update

Over 5000 protesters, representing teachers, public workers, firefighters (complete with bagpipes) and police officers descended on Columbus Tuesday from throughout the state to voice their concerns as a hearing was held at the Statehouse on SB 5, the measure proposed by the Administration to, among other things, eliminate or reduce collective bargaining for public workers in Ohio. The hearing was scheduled to begin at 4:00 pm, but the Statehouse doors were locked shortly after noon when it was apparently determined by the Ohio Department of Public Safety that too many people were already inside. Various news outlets are reporting that many Republican Senators are uncomfortable with the language in the proposed legislation . Further hearings, and protests, are scheduled for today. 

Contact:  Douglas M. Kennedy