In Part 1 of this series, we identified and reviewed three employer risk management areas that enable your organization to avoid liability and create work environments that support your employees and your organization’s commitments. Here are some additional “hot topics” for 2010:
Americans with Disabilities Act Amendments Act of 2008 (ADAAA)
The statutory definition of disability has been expanded and clarified with the issuance of the final regulations, implementing the ADAAA in late 2009. Consistent with the purpose of the ADAAA, it is now easier for employees and job applicants to establish that they are disabled and entitled to ADA protection. Mitigating measures, like medication or devices, are now not to be considered in determining whether a person has a disability. Also, because of the amendments to the ADA, impairments that are intermittent or in remission (such as cancer, epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia) are protected disabilities if they substantially limit a major life activity when active.
Retaliation Claims
At a recent legal conference during a meeting of the New York City chapter of the Society for Human Resource Management, it was reported that one type of EEOC lawsuit that is increasing is retaliation actions. Retaliation lawsuits have always been a challenge for management because even when the organization is successful at trial on the underlying discrimination lawsuit, the possibility of a retaliation lawsuit remains. And, retaliation lawsuits are not subject to Title VII damage caps based on the size of your organization.
The challenging aspect of retaliation claims is that the retaliation does not have to be intentional to give rise to a claim. For example, management may make a decision that seems to solve a problem and prevent a future one, but in reality, it only makes things worse. Suppose a minority race employee complains to management about a hostile environment, in which his fellow workers tell racially charged jokes and call him derogatory names. Management may decide to “protect” the employee by moving him to another location to work. Is the problem solved? No, this decision could actually be viewed as retaliation by the complaining employee for reporting racial harassment if the alternative work location is at a greater distance from the employee’s current work location or is otherwise less desirable.
Gender Stereotyping
Discrimination based on gender stereotyping is considered illegal sex discrimination under Title VII. Gender stereotyping turns on whether the decision-maker in the workplace has, for example, indiscriminately applied to an individual woman true or false attributes that might commonly be ascribed to women as a group. A common example of a gender-stereotyping interview question is whether a woman's children or her husband will take precedence over her work—an assumption based on the notion that women are the primary caretakers.
The Genetic Information Non-Disclosure Act (GINA)
On November 21, 2009, the Genetic Information Non-Disclosure Act (GINA) became effective. Discrimination is now illegal against employees and/or applicants on the basis of genetic information, which is defined broadly by the EEOC’s regulations. According to the EEOC, genetic information includes, for example, information about an individual’s genetic tests, genetic tests of a family member, and family medical history. Genetic information does not include that an individual currently has a disease or disorder. Genetic information also does not include tests for alcohol or drug use.
Although GINA does not directly address the issue of harassment, Congress adopted language similar to that used in Title VII of the Civil Rights Act of 1964 and other equal employment opportunity statutes. It is likely the courts would interpret this language choice as evidencing Congress’ intent to prohibit genetic discrimination with respect to a wide range of practices, including harassment.
Bottom Line:
For effective risk managers, the job is never done. Laws change, interpretations of the laws by courts evolve, and everyday situations to which the law can be applied widely vary. Make sure your managers receive regular and repeated training on new and emerging risk management topics to best reduce the liability risks your organization may face.
