Rosen Law Office

The Equal Employment Opportunity Commission plans to clarify the standards for defending against age discrimination claims.   The new standards are being proposed to respond to the Supreme Court’s decision in Smith v. City of Jackson, 544 U.S. 228 (2005).

Before Smith, a plaintiff had to show that the employer intentionally treated him differently from other workers due to his age.   Smith made it clear that an employer’s action could be discriminatory even if it merely had a disparate impact on older workers.

If Smith made the employee’s case easier to prove, it also lightened the employer’s burden.   The Court said employers no longer need to show that their action was justified by a business necessity.  They simply need to demonstrate that the action was reasonable and was based on something other than age.

The EEOC’s regulations haven’t kept up with that change.  They still say an employment practice that has an adverse impact on older workers “can only be justified as a business necessity.”  The proposed rule gets rid of that requirement.  It says,  “whether a particular employment practice is based on reasonable factors other than age turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts.”

The proposed rule sets up standards for determining whether the practice is reasonable.  Those factors include: whether the employer took steps to assess the adverse impact of its employment practices on older workers; the extent to which older workers may be harmed by the policy; and whether “other options” were available to the employer.

When an employer has to show that “other options” weren’t available, it sounds suspiciously like the old “business necessity” standard.  But the EEOC  indicates the employer isn’t required to use the other options.   Their availability is one factor to consider in deciding whether the action was reasonable.

It was just a year ago that the ADA Amendments Act (P.L. 110-325) became effective.  If you’re already pretty familiar with the Americans with Disabilities Act, you may find that the ADA Amendments Act changes what you think you know about disability. The ADAAA was intended to:

1. Increase the number of Americans protected by the ADA.
2. Shift the focus from “Who is Disabled?” to “Was there reasonable accommodation?”

So, who counts as a “person with a disability” now? It starts with the same definition you may be familiar with: A person who has, or is regarded as having, an impairment that substantially limits one or more major life activities. But, that definition has become broader:

1. The words, “substantially limits one or more major life activities” can refer to the effects of almost any medical condition on the body. Bodily functions, for example, are major life activities in the act.  An individual may appear to be healthy and able-bodied, but may still have impaired bodily or organ function.
2. “Mitigating measures,” except for ordinary eyeglasses and contact lenses, will NOT be considered in determining whether someone is disabled.  If someone has a condition which is controlled by medication, use of devices, or other therapies –even if they are symptom-free— they may still have a disability.
3. Disabilities can come and go. The act says that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” So, people who have chronic medical conditions that only occasionally ‘flare up,’ may have a disability.

What does this mean to an employer?

Shift your focus to accommodation.  If someone claims to be disabled, it is dangerous for you to decide whether or not that’s true.  There is no list of medical conditions that are “disabilities.” A condition which may be disabling in one individual may not be in another. “Disabilities” now include conditions that are in remission, mitigated by medication or therapy, and conditions that do not outwardly affect an individual’s ability to function. You may wish to develop a procedure for addressing and documenting requests for reasonable accommodation.

–Nora Adukonis

The Two Minutes Series provides a broad overview of a legal issue, and is not intended to be a substitute for legal advice.  If you need advice regarding ADA compliance, let us know.