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.

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.

According to a survey by career publisher Vault, Inc., 89 percent of employers said they would watch a video résumé if they received one.  But others worry that vesumés provide clues to a candidate’s race, gender, national origin, age, or handicap.  Will watching these videos increase the risk of a discrimination suit?

If video resumes were required as part of the application process, certain groups might not have the funds or expertise to produce them and could effectively be excluded.   But we know of no employers who have such a requirement.   Rather, it is the candidate’s choice to supply a video resume and the candidate’s decision about what is said and how it is presented.  If a candidate sends you a video, he is in a poor position to complain that you watched it.

“No one has yet filed a major lawsuit for discrimination by video résumé,” Time.com reported in 2007, and we haven’t found any either.  That’s probably because whatever the video discloses about the job-seeker will be just as obvious in an interview.   Even a paper résumé will usually indicate something about the candidate’s gender, age, and ethnic background.   Naturally, these characteristics should never be part of the employment decision, and hiring procedures should include safeguards to prevent the appearance of discrimination.

According to the U.S. Equal Employment Opportunity Commission:

it is not illegal for an employer to learn the race, gender or ethnicity of an individual prior to an interview. Of course, Title VII requires that all individuals be provided equal, nondiscriminatory treatment throughout the hiring process. If an employer representative observes a job seeker in a video clip, and either learns or surmises the person’s gender, race, or ethnicity, such knowledge could increase the risk of discrimination or the appearance of discrimination. Employers need to take care in training hiring officials and human resources staff about the appropriate responses when gender, race, or ethnicity are disclosed during recruitment. Video clips might be analogized to information on a résumé that clearly tells an individual’s race, such as, “President, Black Law Students Association.” In this situation, as with the video clip, the employer needs to focus on the person’s qualifications for the job.

The fact that a resume is on video, rather than paper, should not subject an employer to an increased risk of suit.  In either case, the employer should be ready to show the hiring decision was based on the candidate’s qualifications and not on impermissible factors.

–Joel Rosen

Disclaimer—This office represents search firms, which may use or produce video resumes, and that relationship may affect our conclusion.  This posting does not constitute legal advice, and you should obtain an opinion from your own lawyer.

An employer said its employee could take off up to ten weeks if she had a caesarian section.  She required the caesarian procedure and stayed out nine weeks.  When she was ready to come back, there was no job for her, and she sued.  The employer’s defense was that the employee had been out longer than the eight weeks the statute permitted.

They employee relied on an guideline of the Mass. Commission Against Discrimination, which states that any employer who wants to offer more than eight weeks’ leave—but isn’t guarantying the job beyond that time—has to tell employees so in writing.  That guideline was binding on the employer.  The employee ended up with a judgment of nearly $1.2 million.

The case is on appeal.  According to the appellees’ brief, the question is whether employers “may rely on clear statutory provisions or whether they must instead abide by a vague, inconsistent, and poorly circulated “guideline” of the MCAD, which … does not have the force of law.”  Global NAPS v. Awiszus, et al., SJC-10586, DAR-18231.

–Joel Rosen

When a provision isn’t broad enough, competitors can get around it.  A full-service hair salon had a lease that prevented the landlord from leasing to other companies in the same business.  When another stylist moved into the plaza, the salon sued.  The Superior Court refused to prevent the new competitor from opening, because it was “only a limited service hair cutting salon.”  T.T.K., Inc. v. Columbia Speedway Plaza Member, LLC.   The original tenant, a “full-service” salon, could have protected itself by insisting on a provision barring any hair-cutting business from operating.

On the other hand, if a noncompetition provision is too broad, a court will enforce it to the extent reasonable.  A sales rep agreed not to compete with his employer in the U.S. or Europe.  After being trained and learning the employer’s secrets, he went to work for a competitor.  The employer sued.  The sales rep argued that he had mainly worked in Florida, so it wasn’t fair to restrict his activities worldwide.  The court agreed and narrowed the scope of the agreement to certain customers in Florida.

The salesman then said that—because the original provision had been too broad to enforce—he could not be liable for breaching it.  He couldn’t be liable for breaching the agreement until after the court modified it.  The First Circuit disagreed, saying the salesman wasn’t entitled to “one free breach.”   The proposition “would eviscerate all but the most narrowly tailored non-competition agreements, since a modification of any term of the provision would justify a breach of all its terms.”  Astro-Med, Inc. v. Nihon Kohden America, Inc., 2009 U.S. App. LEXIS 23298 (1st Cir. R.I. Oct. 22, 2009).

Courts are sensitive to the fact that employees don’t read these agreements carefully and aren’t usually in a position to negotiate them.  Employers should not abuse their bargaining power.  But within reason, it’s better for noncompetition agreements to be broad than narrow.

–Joel Rosen