Hunton Employment & Labor Perspectives

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.

On August 16, 2022, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment to Wal-Mart Stores East, L.P. (Walmart), who was accused by the Equal Employment Opportunity Commission (EEOC) of engaging in sex discrimination under the Pregnancy Discrimination Act and the Civil Rights Act of 1964 by offering temporary light duty to employees who were injured on the job, but denying a similar accommodation to pregnant employees. 

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 ...

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.

Twenty-three states and the District of Columbia have enacted laws which decriminalize the use of marijuana for medical purposes.  Under those statutory schemes, individuals with qualified medical conditions may become registered cardholders and obtain cannabis for medical purposes, often from state-regulated dispensaries.  These developments present an array of new challenges for employers to navigate.

On November 6, 2014, the Eleventh Circuit reined in the Equal Employment Opportunity Commission’s (EEOC) use of a broad administrative subpoena in an investigation of an individual charge of discrimination.  The case is EEOC v. Royal Caribbean Cruise Lines Ltd.

In Enforcement Guidance issued last week, the Equal Employment Opportunity Commission took the position that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities.

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.

On October 2, 2013, New York City Mayor Michael Bloomberg signed into law an amendment to the city’s Human Rights Law (“NYCHRL”), expanding the scope of the pregnancy discrimination protections provided under the law.  Although discrimination on the basis of an employee’s pregnancy has long been prohibited under the NYCHRL, as well as under state and federal law, the new amendment makes it unlawful for an employer to refuse to reasonably accommodate “the needs of an employee for her pregnancy, childbirth, or related medical conditions.” 

On September 24, 2013, the Office of Federal Contract Compliance Programs (OFCCP) published two rules that impose new affirmative action obligations toward veterans and individuals with disabilities. These rules, issued under VEVRAA (Vietnam Era Veterans Readjustment Assistance Act) and Section 503 of the Rehabilitation Act, create significant new burdens for covered federal contractors and subcontractors.

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On September 24, 2013, the Office of Federal Contract Compliance Programs (OFCCP) published two rules that impose new affirmative action obligations for veterans and individuals with disabilities.  These rules, issued under VEVRAA  (Vietnam Era Veterans’ Readjustment Assistance Act) and Section 503 of the Rehabilitation Act, create significant new burdens for covered federal contractors and subcontractors. 

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.

On January 14, 2013, the Department of Labor (“DOL”) issued guidance further defining the meaning of “son or daughter” within the Family and Medical Leave Act (“FMLA”).  The FMLA provides qualified employees up to 12 weeks of leave within a 12 month period to care for a son or daughter with a serious health condition.  Under certain circumstances, a son or daughter may include an individual over the age of 18, if that individual has a disability.  The DOL now clarifies, that a child over the age of 18 with a disability may qualify as a son or daughter within the FMLA, regardless of the individual’s age when the disability occurred.

California’s Fair Employment and Housing Commission recently amended its regulations to the state’s Pregnancy Disability Leave Law.  The new regulations provide expanded protections and clarifications with regard to employer obligations related to Pregnancy Disability Leave (“PDL”).  The regulations take effect on December 30, 2012.

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.” 

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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.”

On December 8, 2011 the Office of Federal Contract Compliance Programs (the “OFCCP”) published a Notice of Proposed Rulemaking in the Federal Register that would revise the regulations implementing Section 503 of the Rehabilitation Act of 1973, including setting hiring goals for individuals with disabilities.

A little known law that permits the disabled to be paid sub-minimum wage is currently under attack. To foster employment opportunities for disabled workers in the mainstream workforce, the Fair Labor Standards Act (FLSA)  has contained, since its passage, a relatively unknown provision under Section 14(e) that allows employers to pay disabled workers sub-minimum wages as long as the wages are commensurate with the disabled worker’s productivity. The prerequisites to paying sub-minimum wage to the disabled are stringent and include:

• Preparing a job description for the employee that identifies duties and responsibilities, skills required, and specifies the days and hours of work;
• Identifying the prevailing wage for the position compiled internally or, if necessary, from similar businesses in the area;
• Determining the productivity level of the disabled employee compared to non-disabled workers (e.g., through time/motion studies); and
• Submitting the information on an application to the Secretary of Labor for a special wage permit allowing for the payment of sub-minimum wages.

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.

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.”

Expanding on our December 21 post, the U.S. Equal Employment Opportunity Commission on January 11, 2011, announced that private sector workplace discrimination charge filings reached the “unprecedented level” of 99,922 during fiscal year 2010, which ended on September 30, 2010.  According to the data, all major categories of charge filings in the private sector, including charges against state and local governments, increased significantly.

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.