The murky title necessitates explanation. Frankly, I wanted to avoid adding to the almost 3,000 blog posts, many of which are entitled "post hoc, ergo propter hoc." So, since one of the early episodes of the West Wing very effectively used this as an episode title, I can avoid a cliché and am given a painless way to define the Latin term.
In the West Wing episode, the President utters the phrase and when no one immediately answers, says "27 lawyers in the room. Anyone know "Post hoc, ergo propter hoc"? Finally, one answers, "after it, therefore because of it," which is as good a definition as necessary for this post.
The point is that while causation (which courts also refer to as a "nexus) requires the cause to precede the effect (at least in our universe) that doesn't necessarily mean that what happens before the effect is the cause and it is a "logical fallacy" to suggest otherwise. Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000).
Logical fallacies, however, seems to be the norm for retaliation claims these days. For the last several years, the judges on the Sixth Circuit have engaged in an extensive and utterly pointless debate over whether "temporal proximity" alone justifies a rebuttable presumption that two events which are close in time and are therefore causally related. (Employment lawyers call this the prima facie case, which simply translates to "at first view : on the first appearance".) Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. Mich. 2008), admirably sought to reconcile the competing views but only seems to have agonizingly prolonged the dispute.
To be clear "temporal proximity" simply means "events near in time" but it has been so horribly misused (even being used in Mickey to refer to events that were not close in time) that it should be banished from the legal lexicon. For one, too close a focus on timing diverts attention away from other evidence that is likely to be much more probative of a retaliatory animus.
Where this intersects employment law is that employment discrimination claims necessarily determine causation. In discrimination claims, where causality focuses upon a person's status, timing is usually unimportant (except perhaps in disability discrimination claims). But in retaliation claims, where the causality focus looks to the relationship between two acts, timing takes on an importance it shouldn't.
A recent retaliation decision from the Tennessee court of appeals in Kinsler v. Berkline LLC, held post hoc reasoning applies to all types of retaliation claims in Tennessee. It relied upon Allen v. McPhee, 240 S.W.3d 803, 823 (Tenn. 2007), which had held "that close temporal proximity of a complaint and a materially adverse action are sufficient to establish a prima facie case of causation."
Philosophical and logical issues aside, one mistake many cases (including Kinsler) make is in ignoring what occurs before the supposed "cause" of the "effect." In Kinsler, for example, the employee claimed he had been unlawfully fired 3 days after he refused a workers compensation settlement. But the employee had been injured, sought workers compensation benefits and had filed some type of an action seeking to be paid comp benefits long before he refused the settlement. Those events were remote in time and an employer bent on retaliating against an employee who wants workers' compensation benefits might just as well have based a decision on those events as it did on the event that immediately preceded the firing.
Now, for all we know, the settlement was the "cause" of the employee's firing but there was no evidence of this other than the timing (according to the decision, at least) and the employee's supposition. But if that is all there is to go on, then it is just as reasonable to say seeking workers compensation benefits had no roll in the firing.
Those decisions which have held that temporal proximity, when coupled with "other evidence of retaliation", to quote Mickey, can show "causation" (and by that I still mean a rebuttable presumption of causation) may provide comfort to an employer's lawyer but are no better in rationale. After all, if there is "other" evidence of retaliation, what does it add to say there is or is not a "temporal proximity" between events?
Along these lines disciplinary action antecedent to the protected activity is oft overlooked in the "temporal proximity" analysis. This occurs, even though as the Supreme Court in Clark County School District v. Breeden, 532 U.S. 268, 273 (2001), explained, employers "proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality." Or, as another court has said, "Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87 (2nd Cir. 2001).
Or suppose that between the cause and effect, there is an "intervening" cause. Take Freeman v. Ace Tel. Ass'n, 467 F.3d 695, 696 (8th Cir. 2006), where the employee was fired three weeks after he told the board of directors that the company's mileage reimbursement policy might result in violations of federal income tax laws. While this sound pretty bad from a purely timing perspective, a week before the employee was fired, he sent the board a sworn statement admitting (as the board had suspected) that he had been in a sexual relationship with a female subordinate employee, lied to the board about it and had even used a company credit card to buy Viagra to continue the sexual relationship. Not surprisingly, the court held, the "intervening events undermines any causal inference that a reasonable person might otherwise have drawn from temporal proximity."
Where does this leave Tennessee employers? An employer that makes a "knee jerk reaction" is asking for it. A judge and jury don't need "temporal proximity" to understand an employer's motive when the employer fires the employee right when the employee complains. And whatever philosophical problems there may be with "temporal proximity," it is not smart to hand an employee a termination notice soon after the employee complains unless the employer has antecedently documented the employee's misconduct or an event after the complaint clearly justifies the action.
Tuesday, October 28, 2008
Wednesday, October 22, 2008
ERISA, Bargaining Agreements, Health Plans and Oral Modifications
One cost of doing business for most employers is health care for employees and retirees. The Sixth Circuit is the retiree health care forum of choice because of rulings from that court which impose a very strong but rebuttable "inference," UAW v. Yard-Man, Inc., 716 F.2d 1476, 1482 (6th Cir. 1983), that retiree medical benefits are vested if established by a bargaining agreement.
To vest makes a benefit forever unalterable, or at least, unforfeitable, a difference that comes into play because ERISA does not require vesting of non-retirement benefits. So employers have a choice whether or not to impose on itself the cost of providing lifetime retriee health benefits.
A recent Seventh Circuit decision was interesting not so much because it addressed the vesting issue, it didn't, but because it dealt with a retiree health care plan the employer could alter, but didn't do so validly.
The facts are not terribly important. You only need to know that the employer used unused sick leave to pay, partially, for retiree medical benefits by agreement with the union. The employer, with the knowledge, apparently, of the union, didn't observe the allocation in the plan so it overcharged the retirees, in effect, by drawing too much from the sick leave fund. The overcharged retiree sued, claiming the employer didn't comply with the terms of the CBA.
The employer argued the union had orally approved of the arrangement and that made it legal even if the CBA said otherwise. In the ordinary employer/union bargaining context, this argument might have had strength, for subsequent oral modifications to a CBA are not outright prohibited, just foolish, but in any event, there are strings attached. (The string in this case was to give notice to the affected employees.)
ERISA, however, requires benefits plans be "maintained pursuant to a written instrument,” and this, the court said, included modifications. That hosed the employer's argument that the oral agreement with the union defeated the retiree's claim.
Now comes the important point. Courts have increasingly recognized an exception to the "written instrument" requirement in the case where an employer representative promises something to an employee that the plan does not thus causing the empoyee to rely on the misbegotten promise. Lawyers call this "promisory estoppel", an overused and largely misunderstood legal term that prevents someone from promising something the person knows (or is charged with knowing) won't happen or can't be delivered.
How, then, the court asked, is its holding consistent with promissory estoppel claims? It isn't. Rather, the court announced, promissory estoppel claims (at least the ones that would vary the terms of a benefit plan) must themselves be based upon a written promise. It is true, as the court said, most promissory estoppel claims (or misrepresentation claims) in the ERISA context are based upon something said in writing. After all, for years, we employment lawyers have drilled into employers' heads that they must document, document and document. (Writing, of course, is interpreted liberally in this electronic age - where a sufficiently clear video can be irrefutable evidence.)
But there are decisions, at least one in the Sixth Circuit, where the writing requirement was, at least by outward appearances, no impediment to the imposition of a vested (and costly) retiree health care plan. One example is James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 449 (6th Cir. 2002), where the court's decision did not mention whether or not the promise that altered the written plan was in writing but it seems not to have been. The Sixth Circuit decisions do not seem to acknowledge the writing requirement / oral modification conflict even exists. So the employer was bound by the HR representative's inaccurate promise of lifetime retirement benefits to employees who were contemplating and later took eary retirement. The employer probably got what it deserved here by (1) not training the HR representative or (2) not answering all questions in writing.
The Seventh Circuit decision hints at some protection even though, ironically, it was the employer who wanted to rely on the oral modification. That protection requires some common sense. Statements about benefits, including possible future benefit, are not to be made by the untrained or unknowing. They should always be made in writing after careful review by ERISA counsel or benefits personnel to ensure the writing is consistent with the terms of the plan.
To vest makes a benefit forever unalterable, or at least, unforfeitable, a difference that comes into play because ERISA does not require vesting of non-retirement benefits. So employers have a choice whether or not to impose on itself the cost of providing lifetime retriee health benefits.
A recent Seventh Circuit decision was interesting not so much because it addressed the vesting issue, it didn't, but because it dealt with a retiree health care plan the employer could alter, but didn't do so validly.
The facts are not terribly important. You only need to know that the employer used unused sick leave to pay, partially, for retiree medical benefits by agreement with the union. The employer, with the knowledge, apparently, of the union, didn't observe the allocation in the plan so it overcharged the retirees, in effect, by drawing too much from the sick leave fund. The overcharged retiree sued, claiming the employer didn't comply with the terms of the CBA.
The employer argued the union had orally approved of the arrangement and that made it legal even if the CBA said otherwise. In the ordinary employer/union bargaining context, this argument might have had strength, for subsequent oral modifications to a CBA are not outright prohibited, just foolish, but in any event, there are strings attached. (The string in this case was to give notice to the affected employees.)
ERISA, however, requires benefits plans be "maintained pursuant to a written instrument,” and this, the court said, included modifications. That hosed the employer's argument that the oral agreement with the union defeated the retiree's claim.
Now comes the important point. Courts have increasingly recognized an exception to the "written instrument" requirement in the case where an employer representative promises something to an employee that the plan does not thus causing the empoyee to rely on the misbegotten promise. Lawyers call this "promisory estoppel", an overused and largely misunderstood legal term that prevents someone from promising something the person knows (or is charged with knowing) won't happen or can't be delivered.
How, then, the court asked, is its holding consistent with promissory estoppel claims? It isn't. Rather, the court announced, promissory estoppel claims (at least the ones that would vary the terms of a benefit plan) must themselves be based upon a written promise. It is true, as the court said, most promissory estoppel claims (or misrepresentation claims) in the ERISA context are based upon something said in writing. After all, for years, we employment lawyers have drilled into employers' heads that they must document, document and document. (Writing, of course, is interpreted liberally in this electronic age - where a sufficiently clear video can be irrefutable evidence.)
But there are decisions, at least one in the Sixth Circuit, where the writing requirement was, at least by outward appearances, no impediment to the imposition of a vested (and costly) retiree health care plan. One example is James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 449 (6th Cir. 2002), where the court's decision did not mention whether or not the promise that altered the written plan was in writing but it seems not to have been. The Sixth Circuit decisions do not seem to acknowledge the writing requirement / oral modification conflict even exists. So the employer was bound by the HR representative's inaccurate promise of lifetime retirement benefits to employees who were contemplating and later took eary retirement. The employer probably got what it deserved here by (1) not training the HR representative or (2) not answering all questions in writing.
The Seventh Circuit decision hints at some protection even though, ironically, it was the employer who wanted to rely on the oral modification. That protection requires some common sense. Statements about benefits, including possible future benefit, are not to be made by the untrained or unknowing. They should always be made in writing after careful review by ERISA counsel or benefits personnel to ensure the writing is consistent with the terms of the plan.
Tuesday, October 14, 2008
Protecting Participation in an Employer's Sexual Harassment Investigation
Last week the U.S. Supreme Court held oral arguments in Crawford v. Metropolitan Government of Nashville and Davidson County. Scotusblog.com is a highly regarded blog that lets everyone easily keep track of Supreme Court cases. Yesterday, they published a summary of the argument which you can review here. If you don't want to take their word for it, you can read the official transcript of the oral argument from the Supreme Court's website here.
The case concerns a sexual harassment investigation in which several female employees, one of whom was the plaintiff (Ms. Crawford), were called to meet with the investigator. During this meeting, Ms. Crawford said that she and other female employees had been harassed. Six months or so later, Metro terminated Crawford on what she said were unfounded charges of embezzlement and drug use. She sued claiming her termination was in retaliation for her statements during the investigation.
As scotusblog.com's summary reflects, the Supreme Court appears to be leaning toward holding Crawford's statements to be protected under Title VII. The Sixth Circuit had rejected this reasoning saying Crawford cooperated with the investigation "by appearing for questioning at the request" of the investigator. To oppose unlawful activity, the court held, an employee needs to take some action. Crawford v. Metro. Gov't of Nashville & Davidson County, 211 Fed. Appx. 373 (6th Cir. 2006). Forgetting the fine legal distinctions at issue in the case, any employer that takes action against an employee because of what the employee said during the employer's internal investigation of a sexual harassment allegation acts on very thin ice. I've addressed that previously so enough said.
But the more important point, which might not be addressed by the Court but is nevertheless worth mentioning, is whether an employee's participation in the employer's internal sexual harassment investigation (regardless of what is said) constitutes protected activity.
Under the Title VII retaliation provision (as well as many others), an employee can oppose unlawful activity or the employee can "participate" in a proceeding or investigation into whether the employer's conduct violated Title VII. For opposition clause protected activity, what the employee says is what matters. For participation clause activity, all that matters is the fact of the participation itself.
In the Sixth Circuit's view, Metro's internal investigation was not participation clause activity because "at a minimum, an employee must have filed a charge with the EEOC or otherwise instigated proceedings under Title VII."
This is not the place to go long into the legal distinctions. If you want to see the "no win" scenario example, look at Merritt v. Dillard Paper Co., 120 F.3d 1181, 1183 (11th Cir. 1997), where the court held that the employer could not lawfully fire an employee because, during his deposition testimony in a sexual harassment lawsuit, he admitted engaging in some of the harassing conduct. The admission was costly to his employer and they fired him as a result. The employee could be fired for harassing employees, the court said, but not because he testified truthfully about harassing them.
To return to reality (subject to change by the Court), the threshold for participation clause activity is clear and easy to apply. It requires the instigation of some formal legal proceeding, such as the filing of a lawsuit or charge of discrimination. Booker v. Brown and Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th Cir. 1989). Courts and Congress, however, don't often favor employers (or employees, as the street to ambiguity never runs one way) with bright line rules, and here, the government (representing the views of the EEOC) at argument favored having the participation clause protect employees who cooperate in an employer's internal investigation.
Why does it matter? In most cases it won't. In many employer investigations, employee statement are likely to fall within the "opposition" clause. But take the Dillard Paper example. Suppose, instead of being at a depositon, the harasser had been summoned to meet with the HR manager investigating the underlying harassment charge and then admitted to engaging in horrific conduct toward the vicitimized employee? If the EEOC gets its way, may the employer, at this point, fire the harasser? After all, the employer is under pretty strong legal pressure to fire the harasser (even though the cases say this not always required).
Title VII was never meant to immunize employees from the consequences of their own unlawful conduct. But if any statement, even an admission of harassing conduct, is protected if it is made during an employer's investigation, where does that put the employer who wants to rid the workplace of all individuals who might harass other employees?
With the Supreme Court leaning heavily toward reversing the Sixth Circuit on the opposition clause issue, it may leave the participation clause issue for another case. But for now, it is enough to say there is a risk. So be careful not to put yourselves in any situation where you might end up having to defend your position to the Supreme Court.
The case concerns a sexual harassment investigation in which several female employees, one of whom was the plaintiff (Ms. Crawford), were called to meet with the investigator. During this meeting, Ms. Crawford said that she and other female employees had been harassed. Six months or so later, Metro terminated Crawford on what she said were unfounded charges of embezzlement and drug use. She sued claiming her termination was in retaliation for her statements during the investigation.
As scotusblog.com's summary reflects, the Supreme Court appears to be leaning toward holding Crawford's statements to be protected under Title VII. The Sixth Circuit had rejected this reasoning saying Crawford cooperated with the investigation "by appearing for questioning at the request" of the investigator. To oppose unlawful activity, the court held, an employee needs to take some action. Crawford v. Metro. Gov't of Nashville & Davidson County, 211 Fed. Appx. 373 (6th Cir. 2006). Forgetting the fine legal distinctions at issue in the case, any employer that takes action against an employee because of what the employee said during the employer's internal investigation of a sexual harassment allegation acts on very thin ice. I've addressed that previously so enough said.
But the more important point, which might not be addressed by the Court but is nevertheless worth mentioning, is whether an employee's participation in the employer's internal sexual harassment investigation (regardless of what is said) constitutes protected activity.
Under the Title VII retaliation provision (as well as many others), an employee can oppose unlawful activity or the employee can "participate" in a proceeding or investigation into whether the employer's conduct violated Title VII. For opposition clause protected activity, what the employee says is what matters. For participation clause activity, all that matters is the fact of the participation itself.
In the Sixth Circuit's view, Metro's internal investigation was not participation clause activity because "at a minimum, an employee must have filed a charge with the EEOC or otherwise instigated proceedings under Title VII."
This is not the place to go long into the legal distinctions. If you want to see the "no win" scenario example, look at Merritt v. Dillard Paper Co., 120 F.3d 1181, 1183 (11th Cir. 1997), where the court held that the employer could not lawfully fire an employee because, during his deposition testimony in a sexual harassment lawsuit, he admitted engaging in some of the harassing conduct. The admission was costly to his employer and they fired him as a result. The employee could be fired for harassing employees, the court said, but not because he testified truthfully about harassing them.
To return to reality (subject to change by the Court), the threshold for participation clause activity is clear and easy to apply. It requires the instigation of some formal legal proceeding, such as the filing of a lawsuit or charge of discrimination. Booker v. Brown and Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th Cir. 1989). Courts and Congress, however, don't often favor employers (or employees, as the street to ambiguity never runs one way) with bright line rules, and here, the government (representing the views of the EEOC) at argument favored having the participation clause protect employees who cooperate in an employer's internal investigation.
Why does it matter? In most cases it won't. In many employer investigations, employee statement are likely to fall within the "opposition" clause. But take the Dillard Paper example. Suppose, instead of being at a depositon, the harasser had been summoned to meet with the HR manager investigating the underlying harassment charge and then admitted to engaging in horrific conduct toward the vicitimized employee? If the EEOC gets its way, may the employer, at this point, fire the harasser? After all, the employer is under pretty strong legal pressure to fire the harasser (even though the cases say this not always required).
Title VII was never meant to immunize employees from the consequences of their own unlawful conduct. But if any statement, even an admission of harassing conduct, is protected if it is made during an employer's investigation, where does that put the employer who wants to rid the workplace of all individuals who might harass other employees?
With the Supreme Court leaning heavily toward reversing the Sixth Circuit on the opposition clause issue, it may leave the participation clause issue for another case. But for now, it is enough to say there is a risk. So be careful not to put yourselves in any situation where you might end up having to defend your position to the Supreme Court.
Friday, October 3, 2008
The ADA Amendments of 2008 - Part 2 - "Regarded As" claims
As promised, this post continues where the prior post quit, with the “regarded as” definition of disability. As one court has said, the “regarded as” definition:
actually makes a better fit with the elaborate preamble to the Act, in which people who have physical or mental impairments are compared to victims of racial and other invidious discrimination. Many such impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic.
Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 541 (7th Cir. 1995).
However well meaning it may be, and I do not doubt the sincerity of the goal, the 2008 ADA Amendments include sloppy drafting. It provides that one has a disability if one is “regarded as” having “such an impairment” (emphasis added). Now, to digress, I long ago banished the word “such” from my documents unless I can use it the way Shakespeare used it, e.g., “parting is such sweet sorrow.” Lawyers tend to use “such” to avoid clarity.
In the ADA, however, "such" is an unmistakeable reference to the requirement in the first two definitions that an impairment must substantially limit a major life activity. The amendment, however, then defines a definition (remember that “regarded as” already defines what is a “disability”) to make the “such” in the “regarded as” definition superfluous:
(A) An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
The stated reason for this change is to legislatively overrule that part of Sutton which had held that being disqualified from a single job is insufficient and that to meet the regarded as standard the individual must show that they were perceived as unable to perform a broad range of jobs utilizing the same skills. At the same time, Congress requires the impairment to be substantial enough to last at least 6 months or more.
Whether the legislation, read literally, accomplishes its goal is doubtful beause the definition of a definition is circular. To be “regarded as” having a disability the individual must also establish she has been “subjected to an action prohibited” by the ADA. How exactly does one establish that an action is prohibited by the ADA without establishing that on has a disability in the first place?
The House report explains that the regarded as definition of disability “was meant to express the Committee’s understanding that unfounded concerns, mistaken beliefs, fear, myths, or prejudice about disabilities are often just as disabling as actual impairments, and its corresponding desire to prohibit discrimination founded on such perceptions.”
In keeping with this goal, what Congress meant to say was that one is regarded as having a disability “if the individual shows that an action (e.g., disqualification from a job, program, or service) was taken because of an actual or perceived impairment, whether or not that impairment actually limits or is believed to limit a major life activity.”
As a practical matter, the new definition will no longer examine what the employer believed about the limitation to a major life activity but ask, whether the employer, at the time it took the adverse employment action, believed the employee had a non-transitory mental or physical impairment. Some might read this to say that an employer cannot take an employment action based upon the actual mental or physical impairment. But because Congress retained the myths and prejudice explanation in the legislative history, any “regarded as” claim will still examine whether or not the employer’s action was based upon myths and prejudices instead of sound medical judgment.
That is, as many courts have explained, to show one is “regarded as” having a disability, one must show the employer “entertained misperceptions” about his abilities. Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 665 (6th Cir. 2008); citing Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002) (defendant "was not wrongly viewing [the employee] through a stereotype of disability, 'but rather follow[ed] the specific recommendations of [a] treating physician'" (quoting Cannon v. Levi Strauss & Co., 29 F. App'x 331, 336 (6th Cir. 2001)).
On other points, Congress resolved one debate in the courts by specifying that it is not a discriminatory act for an employer to not provide a reasonable accommodation when someone is “regarded as” having an impairment. This recognizes that the only realistic accommodation in this situation was to not regard the individual as having an impairment. After all, how does one accommodate a myths or a prejudice short of eliminating it?
There are other provisions in the ADA amendments worth mentioning. The Amendments prohibit “reverse” ADA claims, i.e., claims which allege discrimination on account of not having a disability. As far as I knew, reverse ADA claims were exceptionally rare to non-existent. And employers who are also places of public accommodation should remember that the broader definitions of “disability” will also affect the employer’s public accommodation obligations.
actually makes a better fit with the elaborate preamble to the Act, in which people who have physical or mental impairments are compared to victims of racial and other invidious discrimination. Many such impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic.
Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 541 (7th Cir. 1995).
However well meaning it may be, and I do not doubt the sincerity of the goal, the 2008 ADA Amendments include sloppy drafting. It provides that one has a disability if one is “regarded as” having “such an impairment” (emphasis added). Now, to digress, I long ago banished the word “such” from my documents unless I can use it the way Shakespeare used it, e.g., “parting is such sweet sorrow.” Lawyers tend to use “such” to avoid clarity.
In the ADA, however, "such" is an unmistakeable reference to the requirement in the first two definitions that an impairment must substantially limit a major life activity. The amendment, however, then defines a definition (remember that “regarded as” already defines what is a “disability”) to make the “such” in the “regarded as” definition superfluous:
(A) An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
The stated reason for this change is to legislatively overrule that part of Sutton which had held that being disqualified from a single job is insufficient and that to meet the regarded as standard the individual must show that they were perceived as unable to perform a broad range of jobs utilizing the same skills. At the same time, Congress requires the impairment to be substantial enough to last at least 6 months or more.
Whether the legislation, read literally, accomplishes its goal is doubtful beause the definition of a definition is circular. To be “regarded as” having a disability the individual must also establish she has been “subjected to an action prohibited” by the ADA. How exactly does one establish that an action is prohibited by the ADA without establishing that on has a disability in the first place?
The House report explains that the regarded as definition of disability “was meant to express the Committee’s understanding that unfounded concerns, mistaken beliefs, fear, myths, or prejudice about disabilities are often just as disabling as actual impairments, and its corresponding desire to prohibit discrimination founded on such perceptions.”
In keeping with this goal, what Congress meant to say was that one is regarded as having a disability “if the individual shows that an action (e.g., disqualification from a job, program, or service) was taken because of an actual or perceived impairment, whether or not that impairment actually limits or is believed to limit a major life activity.”
As a practical matter, the new definition will no longer examine what the employer believed about the limitation to a major life activity but ask, whether the employer, at the time it took the adverse employment action, believed the employee had a non-transitory mental or physical impairment. Some might read this to say that an employer cannot take an employment action based upon the actual mental or physical impairment. But because Congress retained the myths and prejudice explanation in the legislative history, any “regarded as” claim will still examine whether or not the employer’s action was based upon myths and prejudices instead of sound medical judgment.
That is, as many courts have explained, to show one is “regarded as” having a disability, one must show the employer “entertained misperceptions” about his abilities. Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 665 (6th Cir. 2008); citing Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002) (defendant "was not wrongly viewing [the employee] through a stereotype of disability, 'but rather follow[ed] the specific recommendations of [a] treating physician'" (quoting Cannon v. Levi Strauss & Co., 29 F. App'x 331, 336 (6th Cir. 2001)).
On other points, Congress resolved one debate in the courts by specifying that it is not a discriminatory act for an employer to not provide a reasonable accommodation when someone is “regarded as” having an impairment. This recognizes that the only realistic accommodation in this situation was to not regard the individual as having an impairment. After all, how does one accommodate a myths or a prejudice short of eliminating it?
There are other provisions in the ADA amendments worth mentioning. The Amendments prohibit “reverse” ADA claims, i.e., claims which allege discrimination on account of not having a disability. As far as I knew, reverse ADA claims were exceptionally rare to non-existent. And employers who are also places of public accommodation should remember that the broader definitions of “disability” will also affect the employer’s public accommodation obligations.
Wednesday, October 1, 2008
The ADA Amendments Act of 2008
Perhaps it was lost in the news about the Wall Street bailout but there has been little noted about the September 25, 2008, passage of substantial revisions to the Americans with Disabilities Act.
The "ADA Amendments Act of 2008," which takes effect on January 1, 2009, has as its primary purpose the goal of legislatively overturning almost every Supreme Court decision that had interpreted the ADA as it was originally enacted. Congress and the Courts like to play a game - Congress writes an ambiguous statute, a court interprets the ambiguity in a way Congress decides it doesn't like, and then Congress rewrites the ambiguous statute by blaming the court's interpretation of the ambiguous provisions. (If the Civil Rights Amendments Act of 1991 is any indicator, the "corrective" amendments usually create even more ambiguities.)
Third branch politics aside, what changes are in store for Tennessee employers?
The primary focus of the amendment was to change the definition of disability. As most know, the ADA defines disability in three ways. While Congress did not change the first two definitions of "disability," it codified additional terms so it could significantly broaden who has an impairment that substantially limits a major life activity.
First, with limited exceptions, Congress decreed that "mitigating measures" are not to be considered in the disability determination. That is, medications, other medical devices, or behavioral modifications are not to be considered in determining whether an impairment substantially limits a major life activity. The same is true of impairments that are episodic or in remission, so long as the limitations would be substantially limiting when active. These changes are designed to legislatively overrule Sutton v. United Airlines Inc., and other cases which had held mitigating measures should be considered. The lone exception is for "ordinary eyeglasses or contact lenses."
Second, Congress codified the EEOC's list of illustrative "major life activities," adding several others, including reading, concentrating, thinking and communicating." Working, which is in the EEOC regulation, was also added as was a separation category for "major bodily functions" such as the immune systems and the "reproductive functions."
Third, Congress said that the phrase "substantially limits" is not to be interpreted as held in Toyota Motor Manuf. v. Williams, that the phrase means the impairment must "prevent or severely restrict" the major life activity. Congress did not say what degree of substantial limitation" is used, specifying that the EEOC should revise its regulations to meet Congress' intent.
What is not addressed in this legislation is the statement in Sutton (relying on the EEOC regulations) that the major life activity of "working" is to be considered a "residual life activity, considered, as a last resort, only 'if an individual is not substantially limited with respect to any other major life activity.'" In fact, because Congress gave the EEOC the right to define what is a "disability" its definition of "working" as a major life activity, with the House report stating Congress did not mean to change the EEOC’s regulation as it applies to “working” as a major life activity. Thus, the requirement that the court must examine a broad range of jobs or a class of jobs rather than a solitary job will have even greater legal force.
Nor did Congress overrule the holding in Williams that in determining whether someone is substantially limited in manual tasks, a court must look at all the manual tasks, not just those used on the job.
Congress also amended the third definition of disability, which provides that an individual is disabled if they are regarded as having a substantially limiting impairment. This post is long enough, however, so I will address this change, its ambiguous language, its practical effect and any remaining changes in my next post.
The "ADA Amendments Act of 2008," which takes effect on January 1, 2009, has as its primary purpose the goal of legislatively overturning almost every Supreme Court decision that had interpreted the ADA as it was originally enacted. Congress and the Courts like to play a game - Congress writes an ambiguous statute, a court interprets the ambiguity in a way Congress decides it doesn't like, and then Congress rewrites the ambiguous statute by blaming the court's interpretation of the ambiguous provisions. (If the Civil Rights Amendments Act of 1991 is any indicator, the "corrective" amendments usually create even more ambiguities.)
Third branch politics aside, what changes are in store for Tennessee employers?
The primary focus of the amendment was to change the definition of disability. As most know, the ADA defines disability in three ways. While Congress did not change the first two definitions of "disability," it codified additional terms so it could significantly broaden who has an impairment that substantially limits a major life activity.
First, with limited exceptions, Congress decreed that "mitigating measures" are not to be considered in the disability determination. That is, medications, other medical devices, or behavioral modifications are not to be considered in determining whether an impairment substantially limits a major life activity. The same is true of impairments that are episodic or in remission, so long as the limitations would be substantially limiting when active. These changes are designed to legislatively overrule Sutton v. United Airlines Inc., and other cases which had held mitigating measures should be considered. The lone exception is for "ordinary eyeglasses or contact lenses."
Second, Congress codified the EEOC's list of illustrative "major life activities," adding several others, including reading, concentrating, thinking and communicating." Working, which is in the EEOC regulation, was also added as was a separation category for "major bodily functions" such as the immune systems and the "reproductive functions."
Third, Congress said that the phrase "substantially limits" is not to be interpreted as held in Toyota Motor Manuf. v. Williams, that the phrase means the impairment must "prevent or severely restrict" the major life activity. Congress did not say what degree of substantial limitation" is used, specifying that the EEOC should revise its regulations to meet Congress' intent.
What is not addressed in this legislation is the statement in Sutton (relying on the EEOC regulations) that the major life activity of "working" is to be considered a "residual life activity, considered, as a last resort, only 'if an individual is not substantially limited with respect to any other major life activity.'" In fact, because Congress gave the EEOC the right to define what is a "disability" its definition of "working" as a major life activity, with the House report stating Congress did not mean to change the EEOC’s regulation as it applies to “working” as a major life activity. Thus, the requirement that the court must examine a broad range of jobs or a class of jobs rather than a solitary job will have even greater legal force.
Nor did Congress overrule the holding in Williams that in determining whether someone is substantially limited in manual tasks, a court must look at all the manual tasks, not just those used on the job.
Congress also amended the third definition of disability, which provides that an individual is disabled if they are regarded as having a substantially limiting impairment. This post is long enough, however, so I will address this change, its ambiguous language, its practical effect and any remaining changes in my next post.
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