Impact of Gross on ADEA Claims

I cautioned earlier that the Supreme Court's decision in Gross v. FBL Financial shouldn't be taken by employers as dramatically making it harder for employees to prove age discrimination.  I have also said that newspaper reports saying Gross requires employees to prove age was the "sole" cause are dead wrong.

A recent decision by the  federal court of appeals in Atlanta (deciding appeals from Florida, Georgia and Alabama) illustrates that Gross doesn't  immunize an employer from its stupid mistakes and loose statements nor does it require employees to prove age was the sole cause of their firing.

A non-profit employed an older worker as a fundraiser.  She was moved to a different job for poor performance (instead of being fired - no good deed goes unpunished).  She was shortly later fired for poor performance in the new job.  The employee fought back by putting on evidence that her boss made the following age statements:

• “I need someone younger I can pay less"
• "you are very old, you are very inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.”
• “[Plaintiff] is too old to be working here anyway.”

The employer tried to argue that under Gross, it should win because it would have fired the employee for poor performance, even if the decision had age issues (he denied making the statements).  The court didn't buy it, saying the jury had to decide whether age was the reason for the firing.

EEOC Proposes Definition of "Reasonable Factor Other Than Age"

In light of recent Supreme Court decisions construing disparate impact liability under the ADEA, the EEOC has issued a proposed rule meant to define what is a "reasonable factor other than age" or RFOA.  (This is one of the potential rules I mentioned in December.)

The EEOC's definition won't have a significant impact on the routine age discrimination claim most employers face.  It could, however, result in an increase in the number of disparate impact claims asserted in ADEA lawsuits, particularly in IRIF claims.

The RFOA defense only applies when the proof establishes that the employer has engaged in conduct that is "otherwise prohibited" by the ADEA.  In an intentional discrimination claim it will be unusual (but not theoretically impossible) for an employer to be able to show that its conduct is intentionally discriminatory but yet reasonable.  (Some "reasonable" factors are hard wired  into the ADEA and implementing regulations, most relate to employment benefits, allowing employers to "discriminate" against older workers in end result where the cost of providing the benefit is equal to what it costs for a younger employee).

So, the RFOA defense will appear most in disparate impact claims, where the employer has a facially neutral practice that adversely affects older workers.

The EEOC says that "a reasonable factor is one that an employer exercising reasonable care to avoid limiting the employment opportunities of older persons would use."  To decide this you look to various criteria.  I won't go deep into these criteria here.  They can be summed up as follows: An employer taking action that adversely affects employees should (1) make sure it is aware of the effect of the decision on older workers (indeed, on all classes), (2) evaluate the severity of the impact on older workers, (3) consider whether there is some other, less harmful, means of achieving the same goal, and (4) conduct training of managers on how to avoid age-stereotyping.

I said at the outset that the RFOA defense will apply primarily in disparate impact cases.  But as I was reading through the EEOC's comments, what struck me was that this rule will have a significant impact on reduction in force litigation when older employees are disproportionately laid off.

Employers need to realize that disparate impact age claims can be brought (in the same complaint that alleges intentional age discrimination) to challenge the result of any "practice" the employer adopts, including "practices" the employer does not "officially" adopt.   If there is a statistical disparity, it won't be too hard for an employee to argue that there is a  "practice" that causes the skewed statistics.  (One practice can be, the EEOC says, where the employer gives "supervisors unchecked discretion to engage in subjective decision making.")

At that point, the employer will need to be able to show, in an IRIF case, that the criteria used to select employees to be laid off were  "reasonable" and based on some factor other than age.  While the employer does not have to adopt an employment practice that has the least severe impact on older workers,ignoring ways to lessen the impact will not look good.  Employers must also remember that under existing EEOC regulations (not modified by this proposed rule): "A differentiation based on the average cost of employing older employees as a group is unlawful" (with certain exceptions for benefit issues).

Pending Tennessee Legislation Permitting Mandatory Direct Deposit - Debit Cards

Earlier this week, the Tennessee Senate Commerce, Labor & Agriculture Committee passed a bill (SB2633/HB 3095) that would amend Tenn. Code Ann. 50-2-103 so that employers could require employees to be paid by direct deposit or, if the employee does not want direct deposit, by a prepaid debit card.

 If a debit card is issued, it must permit the employee to make one no cost withdrawal from it (such as at an ATM within the network) for up to the full amount on the debit card.  That could pose problems for ATM withdrawals where there are daily limits on the amount that can be withdrawn.  The employee would then have to go into a bank and obtain the funds from a teller.

There would also be certain disclosure requirements for debit card use, namely, the employer must explain any fees the employee would have to pay for using the debit card.

Employers can do this now with the consent of the employee.  This bill - if it passes - would permit employers to require employees chose between direct deposit or debit cards instead of, as now, cash or checks.

The bill is being promoted by Visa.  Visa's lobbyist explained (the video of the committee meeting can be seen here) that over 20 other states have passed laws or adopted regulations of this nature.  Visa's interest, obviously, is in increasing the use of debit cards as they get a percentage (from the merchant) of every dollar spent.  I'm told by at least one bank that they do not charge an additional fee for obtaining a debit card over and above the fees charged for making direct deposits.

Must an Employer Provide Lodging as a Reasonable Accommodation

I'm always looking for unusual legal precedents.  I shouldn't be surprised when they come from unusual sources. I receive emails from the Government Accountability Office listing the Comptroller General decisions they issue.  The Comptroller General of the U.S. GAO issues legal decisions and legal opinions on appropriations law, bid protests, and other issues of federal law.  Agencies can ask the Comptroller General for advice on whether federal law permits a specific expenditure. 

Today's e-mail from the GAO addressed whether the Department of Housing and Urban Development, Office of Inspector General, could us appropriated funds to pay for a reasonable accommodation for an employee who wanted the IG's office to provide her with lodging closer to where she would be performing audits.  

The Comptroller General decision addresses an unusual accommodation request.  Federal employees, by statute, are paid lodging expenses when they are "away from the employee's designated post of duty."  The employee's need for lodging, however, was not away from her post of duty.  There was, in other words, no authorization for paying the employees lodging for these trips. 

The Comptroller then addressed whether the appropriated funds could be spent nonetheless, as part of a reasonable accommodation, and concluded they could not because the requested accommodation was not reasonable:

An employer, however, is not required to provide for accommodations that fall outside the scope of employment, like commuting. Laresca v. American Telephone and Telegraph, 161 F. Supp. 2d. 323 (D.N.J. 2001). In this case the employee's drive is akin to a commute, traveling from the employee's home to the work site. Reasonable accommodations are directed at enabling an employee to perform the essential functions of the job itself, 29 C.F.R. sect. 1630.2(o)(1)(ii), and federal courts have held that activities like commuting to and from the workplace fall outside the scope of a job. Consequently, an employer is not obligated to provide a reasonable accommodation for such activities.

The Comptroller General encouraged the IG's office to find some other accommodation that would be effective.

Sixth Circuit Clarifies Reduction in Force Standards

Today's decisions from the Sixth Circuit included a reduction in force age discrimination case, Harriet Schoonmaker v. Spartan Graphics Leasing, LLC, that helps to clarify the legal standards for RIFs and addresses other issues that commonly arise in RIF litigation.  The employer had between 50 and 75 employees and, as is not uncommon for employers of that size, did not have detailed RIF procedures.  When the employer decided to cut two employees because work was slow, they made a "consensus" decision to cut from the third shift because it was the least productive. One employee (not the plaintiff) was cut because she had been giving the job as a favor and was retiring soon. As to the 58 year old plaintiff, the employer chose a 29 year old because, as the decision says, plaintiff "was sometimes hard to work with" and the other employee was "the better team player." Both were equally qualified but the employer felt the other employee was "more productive" even though there were no work records to support this one way or the other.


Several parts of the decision are significant.  

• First, the court clarified that, in a RIF, the retaining a younger employee and laying off an older employee is not by itself enough to establish a prima facie case.  There had been some doubt about this because of loose language in a prior decision.
• Second, the court re-emphasized that an employee cannot show an employer's decision is discriminatory by arguing that she was more qualified or more productive than the employee retained.
• Third, the decision shows that minor discrepancies during a RIF do not necessarily amount to proof of discrimination.

Tennessee Court of Appeals Upholds Breach of Employment Contract Claims

Yesterday the Tennessee Court of Appeals issued a decision involving two physicians who sued Methodist Healthcare-Memphis Hospitals when the hospital decided that the doctors had "voluntarily relinquished" their medical staff privileges.  The physicians argued this decision breached their contract with the hospital and tortiously interfered with their patient relationships (at least those patients who had insurance through the hospital).  The hospital took the action it did because the physicians failed to obtain malpractice insurance coverage that satisfied the requirements in the hospital's bylaws (which the court assumed amounted to a contract of employment).

The decision isn't a remarkable one in the traditional HR sense.  It is a reminder that employment relationships are contractual, albeit usually a contract for at will employment.  Employers, however, must take care to observe  any contractual terms when they take action involving a contract employee.  The doctors were not, of course, employees in the strict sense but the same basic rules apply nonetheless.

In the world of contract law, a party that breaches the contract can't complain when the other party later refuses to perform the contract. Here, the court held the physicians could not complain when the hospital "fired" them because they failed to maintain a contractually required condition (insurance).  The lesson here is that any contract of employment should be clear in stating what is a condition the employee must maintain.  If driving is required, then the contract should say so.  Don't leave conditions of employment to chance.  Of course, being specific about the job prerequisites is a good practice even when there is no employment contract.

Ricci v DeStefano - Clarifying What it Means for Affirmative Action

This is for the federal government contractors.  The Office of Federal Contract Compliance Programs (OFCCP) enforces certain obligations contractually imposed on larger companies that contract with the government.   The rules OFCCP enforce require contractors to, among other things, have affirmative action plans. 

Ricci v. DeStefano raised some questions about these affirmative action plans but only if they were being relied upon to fullfil a quota, something genuine affirmative action eschews.

The OFCCP looks to remedy systemic discrimination, however, so it is only natural for the OFCCP to clarify that Ricci does not significantly (if at all) change the agency's procedures or a contractor's obligations.  Some highlights:

• Ricci does not affect how OFCCP examines the use and impact of selection procedures, such as tests.
• Ricci does not change a contractor's affirmative action obligations under the mandates enforced by OFCCP.
• Ricci indicates that an employer's failure to conduct an appropriate job analysis, or to validate a test or other selection procedure prior to its implementation, places an employer in a position that may be difficult to defend should the test be found to have an adverse impact after it is used.

Seventh Circuit holds ADA Does not Adopt Mixed Motives Damages Provision from Title VII

When I previoulsy wrote about the age discrimination decision in Gross v. FBL Services, which held the mixed motives analysis doesn't apply to age discrimination claims, I deliberately avoided explaining what was meant by mixed motives analysis.  I simply said that in a Title VII mixed motives claim, "the employee can partially win."

Today's Americans with Disabilities Act decision from the Seventh Circuit requires me to more fully explain what I meant. 

Because of amendments to Title VII in 1991, if a jury finds that the employer's motives were not entirely pure but that it would have nevertheless made the same decision, the court may award the employee limited relief.  The employee cannot get damages (including backpay) nor can the court order the employee be  reinstated.  The employee can get other injunctive relief (i.e. an order prohibiting future discrimination) and can recover attorney fees (which can add up to a lot).

The 1991 amendments, however, divided up this into two different statutes.  One statute (42 U.S.C. 2000e-2(m) states (essentially) that if the employer had an illegal motive but would made the same decision nonetheless, the employer is nevertheless liable to the employee (the "liablity" provision).  The other statute (2000e-5(g)(2)(B)) limits the relief the employee can obtain in such a situation (the "remedy" provision).

Just a year before the Title VII amendments, Congress enacted the ADA.  Instead of establishing new procedures within the ADA itself, Congress simply invoked by reference the Title VII procedures (several statutes were invoked but the one we are currently concerned with is section 2000e-5).  This is why employees must file charges of discrimination with the EEOC in ADA claims.  The ADA does not, however, invoke 2000e-2, which is, to repeat, where Congress, a year later, inserted a provision making employers liable (but with limited relief) if race, sex, religion or national origin actually motivated the decision even if the decision would have been the same without that illegal motive.

In the Seventh Circuit ADA claim, the jury found that the employer (Rockwell) terminated the employee because of her perceived disability.  The jury also found, however, that Rockwell would have terminated the employee even if it did not believe she had a disability.  The district court granted the employee injunctive relief (requiring Rockwell to put a copy of the judgment in the employee's personnel file) and her attorney fees (which the court reduced from $153,290.54 to $30,658.11, because of the jury's finding).

The Seventh Circuit decision wiped out even this "limited" relief by holding that because Congress did not expressly invoke the mixed motives liability provision (2000e-2) in the ADA, its invocation of the mixed motives remedy provision (2000e-5) was not enough after the Supreme Court's decision in Gross.

I don't ordinarily discuss here questions of statutory interpretation.  This decision is important because it further demonstrates the impact of the Supreme Court's decision in Gross.  It makes trying or briefing an ADA claim simpler.  Of course, it doesn't mean employers should be less cautious or more sloppy in making decisions, especially now that the ADA has been amended to vastly increase the number of folks who have "protected" disabilities.  It is far better to convince a jury (or judge) that the decision was completely free from bias. 

DOL Prepares COBRA Premium Assistance Extension Notices

My prior post covered the December 2009 extension of premium assistance for employees involuntarily terminated and extending the assistance to those employees who lost their job between December 2009 and February 2010.  One of the requirements was that Plan Administrators send notices to affected employees.  The DOL has now prepared notices and these can be found at http://www.dol.gov/ebsa/COBRAmodelnotice.html

Because Congress waited until December to extend the notice, there will be COBRA participants who lost their job more than nine months before Congress extended the assistance period to 15 months.  As the DOL explained, “In addition, individuals who had reached the end of the reduced premium period before the legislation extended it to 15 months will have an extension of their grace period to pay the reduced premium. To continue their coverage they must pay the 35 percent of premium costs by February 17, 2010, or, if later, 30 days after notice of the extension is provided by their plan administrator.”

The DOL explains that these "transition period" individuals:

• must be provided this notice within 60 days of the first day of the transition period. An individual's "transition period" is the period that begins immediately after the end of the maximum number of months (generally nine) of premium reduction available under ARRA prior to its amendment. An individual is in a transition period only if the premium reduction provisions would continue to apply due to the extension from nine to 15 months and they otherwise remain eligible for the premium reduction.

Suppose, for example, a former employee's nine month assistance expired 12/1/2009.  The notice must be sent to the former employee before the end of January 2010.  The employee would have until February 17, 2010 in which to pay the December premium.  (If the full premium was paid, the employee is entitled to a refund.)

Calculating when the COBRA premium payment is due requires some thought.  I read the extension provision as saying that any premium (for a transition period former employee) that would be due January 1, 2010, need not be made until February 17, 2010 (instead of being due January 30, 2010, as it would under the 30 day grace period).  A premium payment due February 1, 2010, must be received no later than March 2 (i.e., 30 days later).  Fortunately, the DOL interprets the December extension as extending the grace period rather than the due date.

Reminder: COBRA Extension in 2010 Defense Budget

Today's Federal Register included the following notice relating to the extension of premium reductions for COBRA benefits when an employee is involuntarily terminated. It is worth passing on the information as a reminder:

• On December 19, 2009, President Obama signed the Department of Defense Appropriations Act of 2010 (Pub. L. 111–118), which extends the availability of the health care continuation coverage premium reduction provided for COBRA and other health care continuation coverage as required by the American Recovery and Reinvestment Act (ARRA) of 2009 (Pub. L. 111–5). Assistance eligible individuals now can be eligible for the subsidy if they incur an involuntary termination of employment triggering a COBRA election opportunity by February 28, 2010. Before the extension, Assistance Eligible Individuals had to experience an involuntary termination of employment by December 31, 2009. The length of the premium assistance period also is extended from 9 months to 15 months.

Additional information on the extension can be found at this DOL website: http://www.dol.gov/ebsa/cobra.html. The link on this page to the IRS website (COBRA Health Insurance Continuation Premium Subsidy) is particularly helpful because the IRS goes into considerable detail for employers wanting to claim the tax credit that funds the COBRA subsidy.

The old model notice (not yet updated to account for the new dates in the COBRA extension) along with other notices can be found here: http://www.dol.gov/ebsa/COBRAmodelnotice.html

New Regulations to Look for From the EEOC

On Monday, December 7, 2009, a number of federal agencies issued their "regulatory plans." A law called the Regulatory Flexibility Act requires agencies publish semiannual regulatory agendas in the Federal Register describing regulatory actions they are developing that may have a significant economic impact on a substantial number of small entities. These take two forms, a Regulatory Plan and a Regulatory Agenda, with the Regulatory Plan being a list of the most significant regulations the agency expects to issue in some form at some point in the future. The Regulatory Agenda/Plan are not used for announcing new rules (or pending rules). Rather, it is a complete list of what to expect from the agency.

The Agenda and Plan for each federal agency can be found at reginfo.gov. The site then links to the "Regulation Identifier Number" or "RIN" for the regulatory action.

The EEOC doesn't issue a great number of regulations. Half of the regulations under consideration are intended to modify existing regulations to conform to or clarify the effect of Supreme Court decisions. The other half implement new Acts of Congress.

One proposed rule the EEOC expects to issue will address "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act." The EEOC describes the rule it is considering as:

On March 31, 2008, the EEOC published a Notice of Proposed Rulemaking (NPRM) concerning disparate impact under the Age Discrimination in Employment Act. 73 FR 16807 (March 31, 2008). In addition to requesting public comment on the proposed rule, the Commission asked whether regulations should provide more information on the meaning of "reasonable factors other than age" (RFOA) and, if so, what the regulations should say. After consideration of the public comments, and in light of the Supreme Court decisions in Smith v. City of Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Lab., 554 U.S. ___, 128 S. Ct. 2395 (2008), the Commission believes it is appropriate to issue a new NPRM to address the scope of the RFOA defense. Accordingly, before finalizing its regulations concerning disparate impact under the ADEA, the Commission intends to publish a new NPRM proposing to amend its regulations concerning RFOA.

On a related matter, the EEOC also expects to issue a final rule addressing the "Disparate Impact Burden of Proof Under the Age Discrimination in Employment Act." The EEOC explained:

the EEOC is revising this regulation [29 CFR 1625.7(d)] to conform to both Smith and Meacham. In the March 2008 NPRM, the Commission also asked whether its ADEA regulation should provide more information on the meaning of RFOA and, if so, what the regulations should say. After consideration of the public comments, and in light of the Supreme Court decisions in Smith and Meacham, the Commission believes it is appropriate to issue a separate NPRM to address the scope of the RFOA defense. This new NPRM will be titled "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act." A Final Rule to be issued in October 2010, will cover the issues addressed in both NPRMs.

The EEOC expects to issue the RFOA and Disparate Impact rules in October. It will first, however, issue a proposed rule on the RFOA.

Turning to the ADA Amendments, I posted in September that the EEOC had issued a proposed rule on the new definition of "disability" added by the 2008 Amendments. The EEOC describes the regulatory action as:

The Americans With Disabilities Act Amendments Act of 2008 ("the Amendments Act") was signed into law on September 25, 2008, with a statutory effective date of January 1, 2009. EEOC proposes to revise its Americans With Disabilities Act (ADA) regulations and accompanying interpretative guidance (29 CFR part 1630 and accompanying appendix) in order to implement the ADA Amendments Act of 2008. Pursuant to the 2008 amendments, the definition of disability under the ADA shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA, and the determination of whether an individual has a disability should not demand extensive analysis. The Amendments Act rejects the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The EEOC expects to issue the final rule in July.

Finally, the other significant regulation to look for will concern the Genetic Information Nondiscrimination Act ("GINA"). The EEOC issued a proposed rule in March but unfortunately failed to issue a final rule before GINA took effect on November 21, 2009. According to the agenda, the final rule should be issued this month.

I will try to cover the DOL's Regulatory Agenda/Plan in a later post.

Why Evaluations Must be Consistent

When I give talks and write about conducting reductions in force, I emphasize that current evaluations of an employee's performance (assuming performance is a factor in the layoff decision) must be consistent with the employee's past evaluations. No doubt, even good employees are laid off in a RIF but when the reason for the RIF evaluation is inconsistent with the prior evaluations, the employee has a much easier time in showing the RIF selection is pretextual.

An age discrimination decision involving the former Boeing commercial aircraft assembly plant in Kansas provides an example of the problem. Boeing sold the commercial manufacturing plant to a company that became known as Spirit Aerosystems. Spirit didn't have its own employees and didn't want to hire wholesale the existing crop of Boeing employees so it relied upon performance evaluations by Boeing managers. One of the employees ("Woods") who wasn't hired by Spirit sued Boeing and Spirit.

In his last annual performance evaluation before the sale, Woods received "met all expectations" ratings in all categories. The supervisor noted there had been few errors in Wood's work areas and that he had "performed well." In comparison to the others within Woods' group, his rating was the same as two workers, but not as good as two other workers.

Before Spirit took over, it asked the Boeing managers to review the employees and make recommendations regarding who should be hired. Woods was not hired but three employees in his job classification were (this is why it is significant that Woods rating was the same as two others workers, one of whom was hired by Spirit). This time, Woods' performance was described as "limited skills/low quality/ low productivity/marginal teaming abilities." Explaining this, the manager said that Woods didn't know how to use the software as well as the others and that he rated Woods quality as low because of Woods' failure to detect several errors in products he had checked. Of course, Woods was the oldest of the three employees (Woods included) who had scored "met all expectations" on the annual evaluation and Spirit hired the youngest of these three.

This was a close case. Whether or the decision is correct, the reason the court of appeals held a trial was necessary was because of the inconsistencies between the ratings on the annual evaluation and the evaluation prepared for Spirit.

And, to echo what I said in a prior post, employers need to realize, whatever is said by the ill-informed news media, that Gross v. FBL Financial doesn't make it easier to discriminate against older workers.

Sixth Circuit Rejects ADA Suit by Employee who Refused a Valid Request for a Medical Examination

The Goodyear plant in West Tennessee had an employee with progressive multiple sclerosis. He worked for 10 years without issue but then his symptoms worsened, in part, by his medications. The employee insisted he could perform his job safely despite his condition. Management learned, however, that the employee was holding onto machinery for support and that his co-workers were helping him perform tasks that required him to climb stairs or ladders. A safety issue also arose regarding forklifts but this was not clearly explained by the decision.

Union representatives met with the employee to tell him Goodyear was going to require him to take a functional capacity examination ("FCE") to determine whether he could safely continue in his job with or without accommodation. The union also advised him that if he "failed" the FCE, Goodyear would likely terminate him but that he had the option to take a medical retirement and receive temporary disability benefits. He took the Union's advice, retired, and sued the company.

Because the employee retired in order to avoid the FCE he had to prove that Goodyear's FCE demand itself constituted an adverse employment action. Citing one of its decisions from 10 years ago, the court held that a "valid FCE demand cannot constitute an adverse action" in a disability discrimination claim (the court left it open whether it could be adverse in a retaliation claim but it would be a stretch there too). The employee argued the examination was not valid, i.e., that the FCE was not job-related nor consistent with business necessity, but (and this is the interesting part of the decision), the Sixth Circuit held that because the employee retired without undergoing the FCE, he could not establish that the examination would have been invalid. An employee, it seems, cannot assume the worst about an employer's demand to submit to a medical examination.

The Sixth Circuit's decision reinforces the employer's right to require an employee to provide accurate medical information. These demands are not to be taken lightly, however. The court stressed that Goodyear required the FCE for valid and specific reasons, job safety concerns, that were "position-specific" and clearly articulated. The EEOC has published Enforcement Guidance which helps to describe when Medical Examinations will be job-related and consistent with business necessity.

Suppose, for the sake of argument, the employee had refused the valid FCE demand? What remedy would the employer have had? Refusal to obey a clear (and legitimate) job requirement is insubordination. Smart employers, however, will not summarily fire an employee upon the employee's initial refusal. Instead, they should write the employee a memo explaining why the employer believes the medical examination is necessary (citing the specific facts) and leaves no room for doubt about what is being required. This memo (or a follow up memo) should unambiguously state that the refusal to undergo the FCE will be regarded as insubordination and will be dealt with pursuant to the employer's disciplinary policies. The discipline imposed for a continued refusal should, of course, be consistent with past disciplinary decisions.

Also remember that the ADA does not permit a medical examination whenever an employee's performance lags. Generally, the EEOC says, "[a]n employer must have objective evidence suggesting that a medical reason is a likely cause of the problem to justify seeking medical information or ordering a medical examination." In the Goodyear case, the medical reason was obvious. That is not always the case and some courts have held that an employee's refusal to undergo a medical examination that fails the ADA requirements is protected activity for which the employee cannot be fired. In that situation, the employer's reason for firing would be per se illegitimate. Thus, smart employers make sure there is no doubt that the examination is authorized by the ADA before imposing discipline.