Hunton Employment & Labor Perspectives

The Supreme Court of the United States recently granted certiorari in Stanley v. City of Sanford, Florida—a consequential case about whether the Americans with Disabilities Act (ADA) covers former employees.  The case has practical significance for employers. 

While the intent of Title III of the Americans with Disabilities Act was to improve equality of access to goods and services offered by places of public accommodation, the Plaintiffs’ bar has seized on the law to recruit serial litigants—also known as “professional plaintiffs” or “paid testers”—to repeatedly sue businesses for minor, technical violations without actually seeking to purchase anything at all. 

On May 15, 2023, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19-related technical guidance in response to the Biden administration’s termination of the COVID-19 public health emergency on May 11, 2023. The updated guidance cautions employers about their continuing obligations under the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, and other equal employment opportunity laws.

As part of the bill funding the federal government, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the PUMP for Nursing Mothers Act (PUMP Act). These relatively unknown laws are important pieces of legislation carrying with them significant changes to the workplace for pregnant employees.

The Fourth Circuit recently issued a significant decision, Williams v. Kincaid, which held that the Americans with Disabilities Act (ADA) protects individuals with gender dysphoria, becoming the first federal circuit in the country to do so.

The U.S. Equal Employment Commission (“EEOC”) has recently updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” (“Q&A)  and taken the position that employers may only screen employees for COVID-19 if it is a business necessity that is justified by “current pandemic circumstances and individual workplace circumstances” because a COVID-19 viral test is a medical examination within the meaning of the ADA.

The EEOC recently issued long awaited guidance on how an employer’s use of software, algorithms, and artificial intelligence will be treated by the Commission under the Americans with Disabilities Act (ADA). In issuing this guidance, the Commission focused on employers administering software that uses algorithmic decision-making or artificial intelligence in making employment decisions before and during employment. The Commission outlined three general areas in which the use of such technology may violate the ADA: (1) an employer not providing a reasonable ...

On September 24, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued written Guidance to implement Executive Order 14042 (“Ensuring Adequate COVID Safety Protocols for Federal Contractors”), which was signed by President Biden on September 9, 2021.  The Guidance is a key component of President Biden’s larger “Path Out of the Pandemic: COVID-19 Action Plan.”

On September 7, 2021, the Equal Employment Opportunity Commission (“EEOC”) filed a first-of-its-kind lawsuit against an employer that allegedly denied accommodation for telework in violation of the Americans with Disabilities Act (the “ADA”). Currently, the case is the only lawsuit the EEOC has filed concerning a request for an ADA accommodation related to COVID-19. The suit is a challenge to the typical posture of courts that frequently consider working from home to be an unreasonable accommodation.

On April 7, 2021, a split panel of the U.S. Court of Appeals for the Eleventh Circuit (the “11th Circuit”) issued its highly-anticipated decision in Gil v. Winn-Dixie Stores, reversing a 2017 judgment against Winn-Dixie that found that the grocery chain’s website violated Title III of the Americans with Disabilities Act (“ADA”).  The 11th Circuit reversed and remanded the case for further proceedings, in part, based on its finding that websites are not a “public accommodation” under the ADA.

Covid-19 has left employers who want their employees back in the office in a difficult position. With the pandemic still raging, many employees are fearful of returning to the office with unvaccinated peers. In order to ease their employees’ concerns and provide a safe work environment, some employers are offering incentives to get vaccinated. Some existing vaccine incentives include gift cards, time off after receiving the second dose, pay for the time spent getting the vaccine, or bonuses ranging from $75 to $500. Although offering vaccine incentives may seem like a solution at this time, employers should be mindful of the legal ramifications of providing their employees with incentives for receiving the vaccine.

Throughout the COVID-19 pandemic, the EEOC has periodically released updates to its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here and here. These questions and answers have provided employers with much needed guidance on the EEOC’s position on how employers can ensure the safety of their employees while at the same time not running afoul of the ADA.

On April 23, 2020, the EEOC updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here, to address questions that many employers are struggling with related to employee COVID-19 testing.  The EEOC’s new guidance confirms that employers are authorized to administer COVID-19 tests before allowing employees to enter the workplace, and that doing so does not violate the Americans with Disabilities Act (ADA).

On April 17, 2020 the EEOC updated its’ Technical Assistance Questions and Answers to provide employers with additional guidance interpreting the ADA, Rehabilitation Act, and other EEO Laws in the midst of the COVID-19 pandemic.  The EEOC first reminds employers that while these laws continue to apply, employers should still adhere to the ever-changing guidelines and suggestions made by the CDC or state/local health authorities.  With that in mind, the new guidance addresses several topics, summarized below.

EEOC guidance on COVID-19 continues to evolve as the medical community learns more about the virus.  On April 9, 2020, the EEOC expanded the list of symptoms about which employers may ask when screening employees entering the workplace, without running afoul of the Americans with Disabilities Act (ADA).  Previously, employers were permitted to ask individuals if they were experiencing fever, chills, cough, sore throat, or shortness of breath. In the agency’s most recent update to its “Technical Assistance Questions and Answers about COVID-19,” it acknowledged that the medical profession now recognizes that the virus may present with the additional symptoms of a sudden loss of smell or taste, as well as gastrointestinal problems, such as nausea, diarrhea or vomiting.  Inquiries about these symptoms are now permitted, as well.

Although the World Health Organization (“WHO”) has declared the coronavirus outbreak a “public health emergency of international concern,” WHO has not yet declared the outbreak as a pandemic. Nevertheless, the emergence of the latest coronavirus is an opportunity for employers, as it reminds them to consider policies and procedures related to pandemic planning.  The following are a few of the key considerations for employers when planning for or responding to an outbreak.

Could the onslaught of anticipated accessibility litigation surrounding Braille Gift Cards in 2020 be limited by a strict construction of the ADA Title III standing requirement? Maybe so.

The cottage industry of accessibility litigation in New York was recently dealt a blow when the Eastern District of New York dismissed a serial plaintiff’s class action accessibility complaint by strictly construing the standing requirement and finding that the court lacked subject matter jurisdiction.

As discussed on the Hunton Retail Law Resource blog on November 5, 2019, for the past few years, retailers have been confronted with a tidal wave of litigation alleging that their websites are inaccessible in violation of the Americans with Disabilities Act (ADA).  Indeed, in 2018 alone, one analysis determined that there were at least 2,258 web accessibility cases filed in federal court, a 177 percent increase from the previous year.

Read More

The U.S. Supreme Court declined to hear a case on October 7 that likely would have clarified the scope of Title III of the Americans with Disabilities Act (the “ADA”) related to the operation of virtual platforms like websites and applications by private businesses.

The Ninth Circuit Court of Appeals upheld a District Court’s ruling in favor of employer Medtronic, Inc. in a lawsuit alleging Medtronic unlawfully terminated employee Jose Valtierra’s employment because he was morbidly obese, in violation of the Americans with Disabilities Act (“ADA”).  In doing so, the Court declined to decide whether morbid obesity is a disability, leaving this issue unsettled in the Ninth Circuit.

What must a private business do to ensure that its website complies with Title III of the Americans with Disabilities Act (“ADA”), which requires that places of public accommodation provide “full and equal enjoyment” to individuals with disabilities?  As discussed in a previous post, the ADA was enacted before widespread use of the Internet and does not directly address whether websites are places of public accommodation, or what a business must do so that its website complies with the ADA.  The U.S. Department of Justice (“DOJ”) has publicly stated that websites must be accessible to individuals with disabilities, but has yet to articulate specific technical requirements for websites.

As we discussed in a previous post , the courts, the Congress, and the Department of Justice (the “DoJ”) continue to grapple with the scope of Title III of the Americans with Disabilities Act (the “ADA”) as it relates to the accessibility of private businesses’ websites for disabled people.  A decision by one state trial court in California seems to adopt a more strict reading of the definition of “public accommodation” than previous cases in California and in the Ninth Circuit Court of Appeals (which includes the federal courts in California) on the subject, which further demonstrates the difficulty that many courts, including this one, are having with these ADA website accessibility cases.

The Scope of the Issue

The Americans with Disabilities Act (the “ADA”) has been the source of a tremendous amount of litigation since President George H.W. Bush signed it into law in 1990.  Over the past few years, Plaintiffs’ counsel have developed a cottage industry of sorts by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired, in violation of Title III of the ADA, which prohibits discrimination on the basis of disability in “places of public accommodation.”  42 U.S.C. § 12182(a).  While ADA lawsuits previously focused on physical access barriers to businesses, these new lawsuits allege that:  (1) private company websites qualify as places of public accommodation; and, (2) websites with access barriers (e.g., websites without compatible screen-reading software) deny plaintiffs the right of equal access.   Plaintiffs have also challenged the accessibility of mobile applications and online job application interfaces.

The opioid epidemic is causing employers to consider the best ways to ensure a safe workplace, but companies should be careful when addressing employees’ prescription drug use.  Recent court filings and settlements by the Equal Employment Opportunity Commission illustrate the potential pitfalls employers face when attempting to implement a drug-free workplace.

As website accessibility lawsuits continue to surge, places of public accommodation oftentimes battle multiple lawsuits filed by different plaintiffs represented by different attorneys.  Even after entering into private settlements, which include detailed website remediation plans, defendants may continue to be the target of these lawsuits by copycat plaintiffs.  The Eleventh Circuit recently addressed this dynamic head-on, and held that a private settlement entered into by Hooters and a first-filed plaintiff did not moot a nearly identical, later-filed website accessibility lawsuit by a different plaintiff.  This case underscores the importance of quickly remediating website accessibility issues, as well as taking care to draft settlement agreements to maximize arguments that future lawsuits are barred.

On February 15, 2018, by a vote of 225 to 192, the House of Representatives passed the ADA Education and Reform Act (HR 620).  Title III of the Americans with Disabilities Act was enacted to ensure access for persons with disabilities to public accommodations.  Too often however, serial litigants have abused Title III to shake down businesses for quick settlements over minor, technical violations without actually seeking to improve access.  By amending the ADA to include a notice and cure provision, proponents of HR 620 say this bill will curb predatory public accommodations lawsuits brought by serial plaintiffs and their lawyers against businesses.

The Department of Justice’s (“DOJ’s”) often criticized rulemaking delays have resulted in no new website accessibility rules for places of public accommodation to receive notice of and implement. Notwithstanding the obvious due process concerns raised by these delays, more and more website accessibility cases are being threatened and filed every day. Most, not unexpectedly, settle. Winn-Dixie did not, and what happened next is worth a closer look.

In a previous post, we discussed the Second Circuit’s opinion finding that Rite-Aid lawfully fired a long-tenured pharmacist after he refused to comply with the company’s new mandate that pharmacists administer immunizations.  The plaintiff requested that the Second Circuit rehear the case, arguing that it should consider additional evidence.  Without discussion, the Second Circuit denied the plaintiff’s request, upholding its prior decision.  The pharmacist was not protected under the Americans with Disabilities Act because he could not perform an essential function ...

In an April 24, 2017 decision, the U.S. District Court for the District of Columbia denied a motion to dismiss filed by Bravo! Facility Services, Inc. (“Bravo!”) against a former employee who brought claims under the ADA, District of Columbia Human Rights Act, and the FMLA.  Bravo! asserted that the plaintiff should be barred under the doctrine of judicial estoppel from asserting her claims because she initially failed to disclose her employment discrimination claims in her chapter 7 bankruptcy case filed after her employment terminated.  The plaintiff had moved to reopen her bankruptcy case and amended her asset schedules to disclose the claims before filing suit against Bravo!  In denying Bravo!’s motion, the court distinguished these facts from other situations where a plaintiff fails to disclose a claim prior to filing suit or only after challenged by an adversary.

The Second Circuit recently held that Rite-Aid lawfully fired a long-tenured pharmacist after he refused to comply with the company’s new mandate that pharmacists administer immunizations.  The Court’s decision overturned a jury verdict of $2.6 million in the pharmacist’s favor and reminds employers what it takes to show that a given function is “essential” and what accommodations are reasonable.  The former pharmacist had claimed Rite-Aid illegally discharged and retaliated against him, and refused to accommodate his disability—trypanophobia, or needle phobia—under the Americans with Disabilities Act and similar state law.

The Eleventh Circuit confirmed that indefinite light duty is not a reasonable accommodation under the Americans with Disabilities Act (ADA), and employers are not required to create a permanent light-duty position for an employee.

Employers increasingly feel that they are forced to bend, or sometimes even break, company rules to reasonably accommodate disabled workers under federal and state law. In a victory for employers, the Eleventh Circuit bucked this trend, holding that when mandatory overtime is established as an “essential function” of the job, a disabled employee who cannot work overtime is not a “qualified individual” under the Americans with Disabilities Act (“ADA”) and, thus, need not be accommodated.

The Equal Employment Opportunity Commission (“EEOC”) has issued proposed rules regarding the extent to which employers may offer inducements for providing information about the current or past health status of an employee’s spouse without violating the Genetic Information and Nondiscrimination Act (“GINA”).

In February of 2016, the Equal Employment Opportunity Commission (“EEOC”) released detailed information and statistics summarizing the charges of discrimination that the agency received throughout its 2015 fiscal year. The EEOC is the administrative agency charged with implementing and enforcing a number of federal anti-discrimination employment statutes, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”). Under each of these statutes, employees seeking to bring a claim of unlawful discrimination, harassment, or retaliation must first file a charge with the EEOC. The recently released report provides helpful information regarding the types of charges that employees filed in the 2015 fiscal year, which ran from October 1, 2014 to September 20, 2015.

This week, the EEOC announced that an Illinois-based packing company, Pactiv LLC, agreed to pay $1.7 million to resolve a charge alleging that the company discriminated against employees who needed time off from work for medical reasons.

According to the EEOC, the company maintained a nationwide policy that assessed “attendance points” to employees who needed time off for medical reasons. The company also allegedly failed to provide employees with intermittent and extended leave as a “reasonable accommodation” under the Americans with Disabilities Act.

The Equal Employment Opportunity Commission (“EEOC”) has issued proposed rules (“ADA Proposed Rules”) on the extent to which employers may offer incentives to promote participation in wellness programs without violating the Americans with Disabilities Act (“ADA”). The ADA Proposed Rules apply if a wellness program includes disability-related inquiries or medical examinations, including inquiries or examinations that are part of a health risk assessment.  Health risk assessments are reported to be the most common form of incentivized employee wellness programs.¹ Thus, many employers would likely be impacted by these new rules if finalized.

Integrity Staffing Solutions v. Busk
Oral argument was heard on October 8, 2014.  This case will resolve a circuit split on whether time spent by warehouse workers going through security is paid time.  The Fair Labor Standards Act, as amended by the Portal to Portal Act, does not require an employer to compensate for activities that are preliminary or postliminary to their principle work.  29 U.S.C. §254(a)(2).  The district court dismissed plaintiffs’ claims, but the Ninth Circuit ruled against Integrity Solutions, a contractor to Amazon.com, holding that going through security was an “integral and indispensable” part of the shift and not a non-compensable postliminary activity.  The Second and Eleventh Circuits previously held that time in security screening is not compensable time.  Interestingly, the U.S. Department of Labor filed an amicus brief on the side of Integrity Staffing.

Fears of a worldwide Ebola pandemic appear to have abated, but the tension between workplace safety and employee privacy, thrown into relief by this health emergency, remains an issue relevant to all employers.

Continue Reading...

Last week, the EEOC invited public comment on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973, which governs the federal government’s employment of people with disabilities. Specifically, the EEOC aims to clarify what it means for the federal government to “be a model employer of individuals with disabilities” pursuant to Section 501.  While any revised regulations will only apply to the public employees, how the EEOC defines a “model employer” could impact future interpretations of the Americans with Disabilities Act (ADA), which apply to most private employees. To the extent any resulting regulation is viewed as reasonable, it may have implications for private employers as courts often look to case law interpreting the Rehabilitation Act to assist in interpreting the ADA.

On April 22, 2014, the Sixth Circuit reversed the district court’s dismissal of an ADA case against Ford Motor Company, finding that there was a fact issue as to whether telecommuting most days is a reasonable accommodation. In EEOC v. Ford Motor Company (No. 12-2484), the court addressed an increasingly common, yet persistently difficult, question:  when must employees be allowed to work remotely, and when is physical, in-person attendance an essential function of a job?

With the Americans with Disabilities Amendments Act (“ADAAA”) and its expansion of the definition of “disability,” some would argue that the focus should no longer be on whether someone meets the definition of a “disability.” The presumption being that it is much easier now to prove someone is “disabled” under the law. The Fifth Circuit Court of Appeals has recently issued a ruling contracting this assumption.

A new case under the amended American with Disabilities Act (“ADA”) may add to employers’ confusion over how to handle medical and disability issues.   Butler v. Louisiana Dep’t of Pub. Safety & Corr., No. 3:12-cv-000420 (M.D. La. 2013).  In Butler, a state trooper alleged he was “regarded as” disabled by his employer, who allegedly thought he had obsessive compulsive disorder and germaphobia.  He claimed he was placed on involuntary leave, subjected to an excessive fitness-for-duty exam, and denied overtime opportunities.  The defendant employer denied the allegations and asserted the “direct threat” defense.  It sought discovery of the plaintiff’s psychiatric records and moved to compel production when the employee objected to the requests.  The court denied the motion to compel and made several interesting pronouncements.

For 60 years psychiatrists and other mental health professionals have been using the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders” (DSM) as the “bible” for diagnosing mental diseases and disorders.  Health and disability insurance providers  use the DSM in deciding what conditions and treatments to cover, as do government agencies in determining eligibility for benefits and services.  These and other factors make the DSM an unusually powerful document.

The latest DSM revision (the DSM-5) is set for release later this month.   It creates several new mental disorders and broadens the definition of a number of existing ones.  These changes will affect employers in a variety of ways, from expanded protection under the ADA and FMLA to increased benefit costs.  

The Equal Employment Opportunity Commission (“EEOC”) announced that it won what it describes as a “historic” verdict last week when an Iowa federal jury awarded $240 million to a group of intellectually disabled plant workers who were subjected to disability-based discrimination and harassment.  The award is the largest in the agency’s history.  The EEOC’s General Counsel, David Lopez, remarked that the verdict is “one of the EEOC's finest moments in its ongoing efforts to combat employment discrimination.”

The 2012-2013 flu season continues to take a toll on the workplace.  According to the Centers for Disease Control (”CDC”), this year’s flu season began four weeks earlier than most recent seasons and, as of the week ending March 9, 2013, flu season activity has remained elevated across the United States.  Having already taken the lives of 64 children, and with adult numbers  unavailable until the end of the flu season, many employers are considering the implementation of mandatory flu vaccination policies.  While such policies may serve business and safety needs of protecting their workplace and workforce, employers should ask themselves the following three questions before adopting such a policy:

The EEOC is targeting pregnancy discrimination in several states.  The EEOC has filed a string of recent cases in an apparent attempt to crack down on workplace discrimination against pregnant women.  A California-based security guard contractor was recently sued by the EEOC on September 20 after it terminated a female employee when she tried to return to work after her pregnancy leave.  A week later, a Texas-based restaurant was also sued after terminating eight pregnant employees. The restaurant allegedly had in place a written policy that instructed managers to terminate pregnant employees three months into their pregnancies.  One of the fired employees was terminated pursuant to the policy even though her doctor had cleared her to work without restrictions until the 36th week of her pregnancy.   In another restaurant-related complaint, this one filed September 27, the EEOC sued a Florida-based restaurant in Panama City, Florida for terminating two pregnant waitresses.  According to the EEOC, the restaurant told pregnant workers that their pregnancies made them a “liability” to the company.  In a related matter, the EEOC is seeking an injunction against a Michigan juvenile detention center to prevent it from maintaining a policy that requires women to immediately notify the company when they become pregnant.

We live in a society that is obsessed with appearance, and studies show that many people equate appearance to success.  While employers may not be aware of these studies, some are trying to control appearance in the workplace by imposing weight restrictions on job applicants or employees as a condition of employment.  

Whether these policies are permissible can only be answered with a “maybe.” 

Continue Reading...

On August 20, 2012, the Eleventh Circuit Court of Appeals affirmed the ruling of the U.S. District Court for the Southern District of Florida in Seff v. Broward County, finding that premium surcharge imposed under Broward County’s employee wellness program did not violate the American with Disabilities Act (ADA) because it was part of a bona fide benefit plan.

The U.S. District Court for the Western District of Pennsylvania held recently that the U.S. Equal Employment Opportunity Commission’s “pattern and practice” disability discrimination claims are subject to a 300-day limitations period, furthering a pronounced split among federal district courts on the issue.  In the case, the EEOC took the position that its pattern or practice claims under the Americans with Disabilities Act were not subject to the limitations period, or, in the alternative, that the employer’s violations constituted a “continuous violation” and the EEOC’s claims were, thus, exempt from the 300-day limitations period.  The court, however, agreed with the employer’s position that the EEOC’s claims were subject to the limitations period based upon the plain language of the statute.  The decision holds the EEOC subject to the same limitations period applicable to individual claimants in any Title VII context.

As the 2013 open enrollment season approaches, group health plan sponsors are trying to hold down health care costs.  Implementing a wellness program may be part of that effort.  The difficulty lies in designing a program that promotes wellness without running afoul of the Equal Employment Opportunity Commission (EEOC).

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities. Once an employer becomes aware of an employee’s disability, the ADA requires the employer to provide a “reasonable accommodation” to enable the employee to perform the essential functions of his or her job.  While the type of reasonable accommodation required can vary greatly depending on an employee’s disability and essential job functions, it was not until recently that a court found that permitting an employee to work in natural light can be a reasonable accommodation.

On May 21, 2012, the Ninth Circuit Court of Appeals held in a split decision that the Americans with Disabilities Act (“ADA”) does not bar discrimination based on marijuana use unless that use is authorized under federal law.  In James v. City of Costa Mesa, No. 10–55769, the court held that even marijuana use under a doctor’s supervision in accordance with state law was not protected under the ADA.  The court held that the ADA excludes illegal drug users from its definition of qualified individuals with a disability.  Although generally-applicable California drug laws carve out an exception for uses of marijuana for medical purposes under doctor supervision, there are no such exceptions to the federal Controlled Substances Act.  Since the ADA defines “illegal drug use” by reference to federal law, and the federal law does not authorize marijuana use for medical purposes, the Ninth Circuit Court of Appeals decided that discrimination in the provision of public services based on marijuana use was not prohibited by the ADA.

In Victoria, Texas, the Citizens Medical Center prohibits hiring obese employees.  The hospital promulgated a policy that requires all potential employees to have a body mass index (BMI) of less than 35.  For example, an applicant who is 5-foot-5 could not weigh more than 210 pounds, and an applicant who is 5-foot-10 could not weigh more than 245 pounds.  All potential employees are screened by a physician to assess their fitness for duty.  According to the hospital’s policy, an employee’s physical appearance “should fit with a representational image or specific mental projection of the job of a health care professional.”

In what was a welcome decision for employers recently targeted by EEOC administrative subpoenas, on February 27, 2012, the U.S. Court of Appeals for the Tenth Circuit upheld a district court’s refusal to enforce what it deemed to be an “incredibly broad” administrative subpoena from the Equal Employment Opportunity Commission.  The decision — EEOC v. Burlington N. Santa Fe Ry. Co., No. 11-1121 — resolved Burlington Northern Santa Fe Railway Co.’s two-year battle with the agency over an administrative subpoena seeking nationwide recordkeeping data.  The EEOC’s administrative enforcement powers stem directly from the agency’s broad legislative mandate to investigate systemic discrimination, the frequency of which has increased in recent years.  But, the Tenth Circuit’s decision is good news for many employers.  Not only does its decision confirm that the EEOC’s subpoena and discovery authority is, in fact, limited, but it also prohibits the agency from initiating “pattern or practice” discovery that is irrelevant to its current charges.

On February 28, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued additional guidance to wounded veterans and to employers under the ADA Amendments Act of 2008.  The two publications are revised versions of guides that originally were posted by the EEOC in February 2008. This guidance reflects another move by federal agencies to address the employment of disabled persons.  Last December, we reported that the OFCCP issued a Notice of Proposed Rulemaking that would, among other things, establish a national utilization goal for individuals with disabilities. There is certainly more than one indication from the federal government that employers will likely continue to face heightened responsibilities concerning the employment of disabled individuals.

On January 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) released its enforcement and litigation statistics for FY 2011.  The statistics show that the EEOC received a record 99,947 charges of discrimination and that, despite a record number of charges, the EEOC processed and resolved more charges than were filed, resolving 112,499 charges during FY 2011.  On the monetary damages front, the EEOC obtained $455.6 million in relief through EEOC mediation and litigation efforts, which represents $51 million increase from the previous fiscal year.

Thirty-four percent of adults in the United States presently qualify as obese under standards adopted by the Center for Disease Control.  Morbid obesity (defined as having a body weight more than 100% over the norm) and obesity caused by a psychological disorder are "disabilities" as defined by the Americans With Disabilities Act (“ADA”), according to the EEOC.  Lawsuits involving morbid obesity are on the rise and come in many shapes and sizes.  The most common involves a “substantially limiting” health condition such as diabetes, heart disease, and hypertension.  Others involve employers who assume an obese employee would pose a direct threat to the health and safety of him or herself or other employees if he or she were to carry out the essential functions of the job.

On September 28, 2011, an Illinois federal district court dismissed the putative class action claims brought by U.S. Equal Employment Opportunity Commission (EEOC) against United Parcel Service Inc. (UPS) in a case where the EEOC alleged that UPS’s 12 month medical leave policy violated the Americans With Disabilities Act by not providing reasonable accommodations to disabled employees.  (EEOC v. United Parcel Service Inc., N.D. Ill, No. 1:09-cv-05291.)

When it comes to disabled access and the Americans with Disabilities Act, it’s not just ramps and restrooms anymore. Now plaintiffs, the U.S. Department of Justice and disability rights groups are looking beyond brick-and-mortar issues and are seeking accessibility to company websites, particularly those websites where business is transacted.

The EEOC recently released an informal discussion letter suggesting that employers may be obligated to do more than just maintain a separate file for employee medical records, especially when those records are in an electronic format. Both the Americans with Disabilities Act of 1990 (“ADA”), as amended, and the Genetic Information Non-Discrimination Act of 2008 (“GINA”) require employers to maintain a confidential medical record, which is separate from the employee’s other personnel file(s), for information about the employee’s medical conditions, medical history or “genetic information.” The statutes do not, however, specify how such records are to be maintained or what level of security must be in place to protect the confidentiality of medical or genetic information.

In recent months the federal government has announced a number of initiatives designed to increase the employment of individuals with disabilities in both the private and government sectors.  These measures send a clear message to employers: audit your practices now to ensure adequate outreach and accessibility to the disabled.

Disability discrimination claims have long been difficult for employees to pursue in court. Although employers are often grappling with reasonable accommodation and leave issues in the workplace, such issues have typically not spilled into the courtroom. One reason for that has been the difficulty in proving an employee has a “disability.” The final regulations issued by the EEOC in March 2011 could change all of that. The new regulations, interpreting the ADA Amendments Act of 2008 (ADAAA) expand the definition of “disability” and otherwise remove several impediments to pursuing lawsuits under the ADA. This should lead to an increase in ADA litigation.

In a pro-business decision, the Los Angeles Superior Court Appellate Division recently established state standards for damages and standing for California public accessibility cases in Mundy v. Pro-Thro Enterprises, 2011 WL 600619 (Cal. App. Dep't Super. Ct. Jan. 7, 2011).

The 2010 fiscal year was a busy one for the EEOC as employees filed a record number of charges.  See A Year In Review: EEOC Charges & Trends.  This wave of charges is historic -- not just because of the number of charges filed, but also because of the evolving trends in the types of claims made. Unfortunately for employers, these trends will likely continue in 2011 and beyond.

Historically, the most common types of claims filed were those of race and sex discrimination. Although these particular types of claims remain prevalent (the number of both race and sex discrimination claims increased in 2010), other types of claims are emerging at an alarming rate due to recent changes in the legal landscape.

In Byron Chapman v. Pier 1 Imports (U.S.), Inc., --- F.3d --- (9th Cir. Jan. 7, 2011), a unanimous Ninth Circuit en banc panel reversed the trial court finding that the plaintiff had standing to pursue claims for alleged barriers against Pier 1, instead holding that plaintiff’s complaint was "jurisdictionally defective" and that plaintiff "lacked standing at the outset of this litigation to assert the ADA claims."  "This Case is important because the decision helps to rein in ‘drive by ADA litigants’ who file multiple lawsuits for profit, but have no real stake in the matters presented,” said lead appellate lawyer Laura Franze, who is Co-Chair of Hunton & Williams' national employment group. “The Court adopted Pier 1’s position that -- in order to comply with Article III standing requirements --- an ADA plaintiff must not only clearly identify the alleged accessibility violations, but also connect the dots to show how he personally suffered discrimination under the ADA on account of his disability. ADA complainants cannot depend on formulaic recitation of the elements of a claim.”

The fiscal year 2010 was a record-setting year for the number of private-sector discrimination charges filed with the United States Equal Employment Opportunity Commission.  Nearly 100,000 charges were filed -- the most charges in the commission’s  45-year history.  This number represents an increase of just over seven percent from 2009, becoming the third consecutive year in which over 90,000 charges were filed.

The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination in hiring and employment decisions based on an individual’s genetic information.  So, for example, a company cannot refuse to hire a woman because her mother had breast cancer.  The law also prohibits requesting, requiring and/or purchasing genetic information, with limited exceptions, and prohibits disclosure of genetic information.  There are many open questions about the law, such as whether companies can have wellness programs anymore (restricted genetic information is routinely gathered as part of such programs) or whether it is a violation of the law for a supervisor to learn about genetic information by accessing an employee’s page on a social networking site, or by asking innocent questions about the employee’s health, such as “How are you?.”  The EEOC issued final regulations last week in an attempt to answer these and other questions under the law.  A short discussion follows.

With the closing of the first month of the federal government’s 2011 fiscal year, employers may be curious to know what the EEOC’s litigation landscape looks like.  For instance, what type of employers are being sued, and for what?  Importantly, what can employers learn from the EEOC’s litigation efforts?  A review of recently filed lawsuits that the EEOC has announced in its October press releases found that few claims have been brought under recently passed laws and only a small portion of the defending employers are Fortune 500 companies.

As was predicted following the passage of the ADA Amendments Act of 2008 (ADAAA), which went into effect in January 2009, there has been a subsequent surge in the filing of lawsuits under the Americans with Disabilities Act (ADA).  Lawsuits brought under the ADA now comprise the highest percentage of claims filed by former employees.  When compared with the number of ADA-related lawsuits filed in the first three months of 2009, there has been a nearly 40% percent increase in the number of ADA-related suits filed in 2010  during the same period.  Moreover, the second quarter of 2010 saw the number of ADA-related lawsuits increase by 15% over those filed in the first quarter.

Establishing work rules and job descriptions for employees not only provides employees with a better understanding of job expectations, but also helps protect employers from liability for discrimination and other employment-related claims.  In Budde v. Kane County Preserve, No. 09-2040 (7th Cir. March 4, 2010), the U.S. Court of Appeals for the Seventh Circuit affirmed a district court’s ruling that the ADA does not protect an employee who violates workplace rules from discipline up to and including termination, even if the violation is caused by a disability.

Bending over backwards to help an employee with a disability can leave the employer in an awkward position.  With changes to the Americans With Disabilities Act (“ADA”) and its regulations last year, employers may be more likely to offer accommodations.  More conditions will be deemed to fall within the definition of a disability, and employers likely will err on the side of providing accommodations.  However, employers should continue to exercise sound judgment in deciding what accommodations to offer.

The Obama Administration announced on February 1, 2010, that it requested $385.3 million for the Equal Employment Opportunity Commission for fiscal year 2011.  In addition, the administration requested $162 million for the Civil Rights Division of the Department of Justice.  Significantly, the requests represent an $18 million dollar budget increase for the EEOC and a $17 million dollar budget increase for the DOJ Civil Rights Division.

A panel of the U.S. Court of Appeals for the Ninth Circuit recently held in Alvarado v. Cajun Operating Company, that compensatory and punitive damages are unavailable to a  plaintiff who brings an ADA retaliation claim.  Consistent with a prior Seventh Circuit ruling  in Kramer v. Banc. of Am. Sec., 355 F.3d 961 (2004), the Alvarado Court found that the ADA specifically excludes a retaliation claim under Section 12203 from awards of  compensatory and punitive damages.  The court reasoned that Section 1981(a)(2) of the ADA does not list claims brought under section 12203 as one of the enumerated categories of claims meriting compensatory and punitive damages.  Since the statute specifically enumerated other claims under the ADA where punitive and compensatory damages are proper remedies, the court found that Congress intended for those claims, and not those under Section 12203, to get punitive and compensatory damages as a remedy.  In addition, the court held that since ADA retaliation claims are only subject to equitable relief, no jury trial is available.

The EEOC reported that workplace discrimination charges reached near-record highs in 2009.  According to the EEOC, there were 93,277 charges filed in fiscal year 2009 -- the second-highest level in its history. 

What to do with an employee who tested positive for marijuana used to be an easy decision.  That is not necessarily the case anymore.

Thirteen states have legalized the use of marijuana for medical purposes.  Some of these states require employers to accommodate the medical use of marijuana.  Although use of marijuana remains illegal under the federal Controlled Substances Act regardless of whether it is medically prescribed, the U.S. Department of Justice announced in October 2009 that federal agents will target users and distributors of marijuana only when they violate both federal and state laws.  In addition, employers may have to consider whether they must allow employees to use medical marijuana as a reasonable accommodation pursuant to the federal Americans With Disabilities Act (ADA).  These developments have caused employers to re-examine their “zero tolerance” policies with regard to drug use by employees.

Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA) covering employment goes into effect on November 21, 2009.  GINA, which was enacted in May 2008, prohibits employers from discriminating on the basis of genetic information and from intentionally acquiring genetic information from employees or applicants.  The Act also imposes strict confidentiality requirements on employers, and requires them to segregate and maintain all such information in compliance with the Americans with Disabilities Act.

Companies doing business in California, particularly retailers, should be aware of a recent revision to the California Financial Code that sets out new accessibility requirements for point-of-sale devices.  A point-of-sale device includes any device used by a customer for the purchase of a good or service with a debit, credit or cash card where a personal identification number (PIN) is required. 

On July 15, 2009, the EEOC issued guidance entitled "Understanding Waivers of Discrimination Claims in Employee Severance Agreements." In this guidance, the EEOC generally explains the waiver of discrimination claims through release agreements and answers questions employees may have about the effect of those agreements on the filing of charges of discrimination and on severance pay. These questions include the following: "May I still file a charge with the EEOC if I believe I have been discriminated against based on my age, race, sex or disability, even if I signed a waiver ...

President Obama recently nominated Victoria A. Lipnic for a seat on the five-member Equal Employment Opportunity Commission (EEOC).  Lipnic is Republican, with an extensive background in employment law.  During the prior Administration, she served as Assistant Secretary of Labor for Employment Standards from 2002-2009.  In that capacity, Lipnic oversaw the Department of Labor’s largest agency, and led the teams that revised the Part 541 overtime regulations under the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA) regulations.