Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

If you have not experienced it already, the EEOC is very active under the Obama administration.  Proof of this heightened activity is evident in the most recent statistics released by the EEOC for the fiscal year ending September 20, 2011.

Here is a summary of some of the highlights from the EEOC FY 2010 statistics (the Commission's fiscal year ends September 30, 2011)

• Total Charges of Discrimination filed reaches all time high of 99,922 (an increase of 6,645).
• Cause findings of discrimination were up over 1,000 from last year (and the highest number in 5 years).
• Disability charges of discrimination increased by almost 5,000 totaling a full 25% of all charges filed (expect that percentage to increase under the ADAA).  Only race, retaliation and disability showed an increase in percentage of total charges over last year.
• EEOC's backlog of charges is decreasing indicating that the Commission is processing charges faster.
• Conducted or are conducting 580 systemic investigation and filed 23 lawsuits alleging systemic allegations of discrimination.

Unless a projected budget cut decreases the EEOC's ability to process charges and conduct investigations and litigation, it is expected that next year's charge filing statistics will meet or exceed this year's record numbers.

Follow me on Twitter @RussellCawyer.

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Next week is the deadline for all covered employers (i.e., those subject to Title VII and with 100 or more employees; or first tier or prime federal contractors with 50 or more employees or more than $50,000 in federal contracts) to file their federal EEO-1 surveys.  The EEOC has a FAQ page if you are new to or unfamiliar with the annual filing requirement.

Follow me on Twitter @RussellCawyer.

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The EEOC is reviewing whether the use of arrest and criminal conviction information acts as a hiring barrier and whether employers should be precluded from asking about criminal convictions.  The EEOC publicized the meeting in a press release titled  Striking a Balance Between Workplace Fairness and Workplace Safety.  Particularly troubling about this hearing is the fact that the EEOC appears to be looking at the issue as one of workplace fairness rather than discrimination.  Workplace fairness is admirable, however, the EEOC's mission and mandate is not to try and achieve workplace fairness.  The EEOC's mission is educate, investigate and enforce the protections put in place by Title VII and related laws.  Stated differently, the EEOC is charged with ensuring that individuals are not treated differently because of their race, sex, color, religion, national original, age, and disability; not to ensure that the workplace is fair.

In my experience, few (if any) employers ask for or rely on arrest information in making hiring decision.  I've never seen an employment application that stated that a criminal conviction would be an outright bar to employment.  Most employers that seek criminal conviction information consider the nature and severity of the offense, the length of time since the offense occurred and the position for which the applicant is applying.  Banning the box (i.e., prohibiting employers from asking about criminal convictions on applications) will result in employers needlessly interviewing applicants who, by the nature or severity of their crime, will not ultimately be hired.  This is a waste of employer time and resources.  Moreover, given the EEOC's limited resources, its time, effort and money would be better spent on core mission rather than trying to administratively expand the scope of Title VII to effectively make convicted felons a protected class.

Follow me on Twitter @RussellCawyer.

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Verizon agreed to pay $20 million dollars and ceasing using its no-fault attendance policy for  absences caused by impairments qualifying as disabilities under the ADAAA.  Whatever the size of Verizon's Human Resources Department, it looks like its going to need to be a lot larger.

As part of the settlement with the EEOC, Verizon agreed that before it would charge ANY absence against an employee under its no-fault attendance policy, it would determine whether:

• the employee has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA;
• the employee's absence was caused by a disability;
• the employee, or someone else on the employee's behalf, requested a period of time off from work due to a disability;
• the employee's absence have been unreasonably unpredictable, repeated, frequent or chronic;
• the employee's absences are expected to be unreasonably unpredictable, repeated, frequent or chronic;
• Verizon could determine, from the request by or on behalf of the employee or through an interactive reasonable accommodation process, a definite or reasonably certain period of time off that the employee would need because of a disability; and
• the employee's need for time off from work poses a significant difficulty or expense for the business.

Let me say this again; Verizon agreed that it would investigate every single absence before it applies that absence against the employee under its attendance policy.  Don't believe me, here is the link to the consent decree entered in the case.  (Consent Decree).

So, if you are a Human Resources professional in transition or looking for a transition, consider applying at Verizon; its going to need the additional help.

Follow me on Twitter @RussellCawyer

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There's an old saying in rural America that "pigs get fat and hogs get slaughtered."  We used the phrase to describe someone who, instead of being satisfied with what he has, gets greedy.  In the litigation context it can be used to describe a party that takes overly aggressive, unreasonable and untenable positions.  My fellow bloggers, Work Blawg and Employment and Labor Insider posts last week about the EEOC's apparent position that attendance is not an essential job function (or not working as Work Blawg refers to it) makes me think the EEOC might be getting a little Hog-like in its attack on employer leave of absence and attendance policies.  The issues comes up in discussions of Verizon's record-setting $20 million settlement with the EEOC over its no-fault attendance policy.  As Robin Shea points describes the dispute that was settled:

The case was about charging absences under a no-fault attendance policy to employees who missed work because of medial conditions that were 'disabilities' within the meaning of the ADA.  It does not appear that medical leaves were at issue.  Exempting ADA conditions from no-fault attendance policies is a huge deal.

With the Verizon settlement, the EEOC is apparently signaling that it believes an employer commits a violation of the ADA when it charges an employee absence against a no-fault attendance policy when the absence results from a medical condition that qualifies as a disability.  Because the ADAAA now renders everyone disabled, the EEOC's position is troubling.  It suggests that the EEOC believes that attendance is not an essential function of most jobs. 

The problem with the EEOC's position (and where it crosses the line from being piggish to hoggish) is that the ADAAA made no changes to what is considered an essential job function or the well-settled standard that an employer need not eliminate essential job functions in providing reasonable accommodation.   Certainly, the ADAAA has given the EEOC ample reason to be aggressive in litigating issues on what constitutes a disability or is a substantial limitation on a major life activity.  However, the ADAAA made no changes to the statute regarding what constitutes reasonable accommodation or essential job functions.  Most courts have held that attendance is an implicit, essential job function of most employment.  Consequently, the EEOC's position that attendance is not an essential job function and employees cannot consider absences caused by "disabilities" under no fault attendance policies is puzzling.  If accepted by the Courts, the EEOC's position would require employer's to investigate each and every absence to determine whether the employee is disabled and whether absence was caused by a disability. 

Follow me on Twitter @RussellCawyer.

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This week the EEOC held a hearing on whether new or updated regulations and enforcement guidance was needed with respect to providing leave of absence as a reasonable accommodation for disabled employees.  The EEOC has recently been very aggressive in bringing suit against employers that use maximum leave policies or "inflexible" policies that provide no exception for reasonable accommodation.  For example:

• EEOC v United Road Towing Inc., No. 10-cv-06259 (N.D. Ill.) (failure to provide reasonable accommodations by terminating disabled employees after exhausting 12 weeks of FMLA leave and refusing to re-hire employees after they were released to return to work);
• EEOC v. IPC Print Services, No. 10-886 (W.D. Mich.) (failure to provide reasonable accommodations by terminating an employee rather than granting him a part-time schedule because he had exceeded the maximum hours of leave under company policy);
• EEOC v. Princeton HealthCare System, No. 10-4216 (D.N.J.) (failure to provide reasonable accommodations by terminating employees after either seven days or 12 weeks, depending on eligibility for FMLA);
• EEOC v. UPS, Case No. 09-5291 (N.D. Ill) (failure to provide reasonable accommodations by terminating employee for exceeding 12-month leave policy);
• EEOC v. Denny’s, Inc., No. 06-2527 (D. Md.) (failure to provide reasonable accommodations by terminating a nationwide class of disabled employees at the end of the company’s pre-determined maximum leave limit).

And of course, the EEOC reached a $6.2M settlement with Sears over its use of a maximum leave policy. (See here).  I predicted the demise of "neutral absence control" or "maximum duration leave policies" over a year ago.  (Post here).  Moreover, I discussed how an employer's inability to rely on such policies will adversely affect an employer's ability to handle leaves of absence for employees needing leave for non-work-related injuries, workers' compensation leaves of absence and leaves caused by pregnancy.  

Hopefully the EEOC's proposed regulations on the use of leave of absence as a reasonable accommodation, optimistically (but probably unrealistically) slated for Fall 2011 publication, will provide employers with needed guidance that will preserve the ability for employer's to continue to use neutral or maximum duration leave of absence policies.   

What others are saying about this week's hearing:

EEOC and employers differ on the use of neutral maximum leave of absence policies

EEOC Meeting and Forthcoming Written Guidance Address Leave Policies and Reasonable Accommodations Under the ADA

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There has been a lot of ink spilled and kilobytes written about how the ADA Amendments Act has substantially expanded the rights of individuals with disabilities to seek and obtain reasonable workplace accommodations.  (See post, post, post, and post).  The increase in the number of applicants and employees who qualify for reasonable accommodations and the types of impairments that now qualify as disabilities has me thinking about the unintended consequences arising with such broad and encompassing changes to the ADA.  Today I read about a potential consequence I had not been able to imagine. 

Elie Mystal wrote yesterday at Above the Law about an employee in Brazil sued and won the right to watch pornography and masturbate because she suffers from "a chemical imbalance that triggers severe anxiety and hypersexuality."  This started me thinking, could the EEOC bring the same suit against a U.S. employer on behalf of an employee who wanted breaks to watch pornography and otherwise relieve his or her stress caused by severe anxiety or hypersexuality (i.e., to masturbate)?  I think the answer, despite what Congress intended, is probably "yes".

First, is hypersexuality or severe anxiety a disability?  The ADAAA regulations say that "depressive disorder, bipolar disorder, OCD, and schizophrenia" are presumptively disabling disorders.  Severe anxiety is a recognized psychological disorder listed in the current version of the DSM and hypersexuality is a proposed diagnosis for the the DSM-V.  (check) 

Second, does it substantially affect a major life activity?  The EEOC's regulations instruct that whether a major life activity is substantially limited is not a demanding standard and should be viewed expansively.  Furthermore the Commission regulations include concentrating, thinking and the operation of the major bodily systems including the reproductive system as major life activities. Therefore, it should not be hard to imagine evidence that these disorders cause the employee difficulty with thinking, concentrating or the normal operation of the reproductive systems.  Moreover, how would an employer challenge whether these impairments and the preoccupations it causes limits the employee's ability to think or concentrate?  (check)

Third, are reasonable break times to relieve stress reasonable?  Unless the employer can show undue hardship, probably so.  Employees are permitted reasonable break times for reasons caused by other physical impairments such as frequent restroom breaks for impairments affecting the urinary or digestive systems; and frequent meal or break times for diabetics who need to test their blood sugar and eat small meals.  Consequently, it would be up to the employer to show that the requested accommodation is not reasonable and/or it causes an undue hardship.  (check).

Having concluded that the EEOC could bring this lawsuit under the ADA on behalf of a employee or applicant, I recognize that the likelihood of it doing so is less than zero; the political fallout would be disastrous for the Commission.  Just because the EEOC would not bring the suit, however, would not prevent an employee from hiring private counsel and bringing the same claim against his or her employer.  This example demonstrates just how far the ADAAA has gone to expand what qualifies as a disability.  Did Congress go too far when it passed the ADAAA?

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In a suit you don't see filed everyday, the El Paso District Office of the EEOC recently filed a disability discrimination lawsuit against Starbucks over the termination of an employee suffering from dwarfism.  According to the EEOC's Complaint:

Charging Part has a physical impairment, dwarfism. . . [and] is substantially limited in the major life activities of, including but not limited to, reaching, lifting, and performing manual tasks.  Charging Party was hired by the [Starbucks] as a barista, a customer service position.  The job description for the barista position stated that no prior experience was required. . .  On or about July 30, 2009, Charging Party requested the use of a stool and/or small step-ladder as a reasonable accommodation to enable her to perform the essential functions of her job.  With reasonable accommodation, [she] would have been able to perform the essential functions of her job; to operate the cash register and prepare beverages.

After the Charging Party requested a reasonable accommodation, [Starbucks] failed or refused to engage in the interactive process and failed or refused to provide the Charging Party with a reasonable accommodation.  On or about July 30, 2009, [Starbucks] terminated Charging Party's employment, claiming that she would be a danger to customers and employees.

In my quick, and admittedly non-exhaustive research while writing this post, individuals suffering from achondroplastic dwarfism have not fared well in suits filed under the ADA.  However, with the relaxed standard for qualifying for "disabled" status under the Americans with Disabilities Amendments Act and its accompanying regulations (see post), the EEOC may have a stronger hand in this case if it can overcome Starbucks apparent "direct threat" defense.

You can review a copy of the EEOC's complaint here.

UPDATE:  On August 16, 2011, Starbuck entered a Consent Decree with the EEOC where it agreed to pay $75,000 to settle the charges of discrimination.  You can see all of the terms of the Consent Decree here.

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The EEOC published its final regulations interpreting the ADA Amendments Act on March 25, 2011.  Consequently, those regulations become effective on March 24, 2011.  The effect of the Act and these regulations is that large numbers of employees will qualify as disabled under the law thereby triggering an increased number of applicants and employees who may be eligible for reasonable accommodations.  Here are a summary of the regulations:

1. Defines "major life activities" broadly to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working and the operation of a major bodily functions such as the immune system, special sense organs and skin, normal cell growth and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive systems.
2. Clarifies that the term "substantially limits" is not to be a demanding standard; should be construed expansively; the impairment's limitations should be viewed in their active, rather than remissive, state; mitigating measures should not be considered; and the examination should not usually require scientific, medical or statistical analysis.
3. Identifies impairments that will almost always substantially limit a major life activity such as:  deafness, blindness, intellectual disability, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, depressive disorder, bipolar disorder, OCD, schizophrenia, muscular dystrophy. 
4. Confirms that temporary or episodic conditions (including those in remission) may qualify as disabilities and that it is appropriate to consider the additional time, effort or pain the employee experiences in performing a major life activity in determining whether it is substantially limited (i.e., the conditions under which the individuals performs the activity).
5. Confirms that individuals qualifying as "disabled" only under the "perceived as" prong are not entitled to reasonable accommodation but those who are disabled due to "actual disability" or a "record of disability" are entitled to reasonable accommodations that do not cause undue hardship.

 You can access a full copy of the regulations here.

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Last week the EEOC issued two Informal Discussion Letters addressing employment practices or policies that might create liability under a disparate impact theory of discrimination.  Since the discussion letters do not constitute official opinions or interpretations of the Commission, the significance of back-to-back letters on the same topic is not the content (the letters do not break any new legal ground or make any surprising pronouncements), but that it suggests the Commission might be interested in finding and bringing more disparate impact claims.  The following is a brief summary of the discussion letters.

The first letter dated February 19, 2010, discusses whether a proposed qualification standard that Public Health Directors possess a master's degree, without the possibility of substituting experience or other education, violates Title VII.  The Attorney-Advisor of the Office of Legal Counsel noted that if the master's requirement had a significant disparate effect on a protected group, it might be unlawful if the employer cannot justify that the requirement is "job related and consistent with business necessity" and there is no alternative practice "that would be equally effective in predicting job performance, but that would not disproportionately exclude the protected group."

The second letter dated March 9, 2010, discusses employers' use of credit checks to screen job applicants.  While acknowledging that the EEOC has no authority to enact legislation to prohibit employer credit checks, its authority does extend to circumstances where an employer's use of credit information disproportionately excludes minority candidates and the employer was unable to show that the practice was needed to operate safely or efficiently.  The Commission's Assistant Legal Counsel also noted that in May 2007, an attorney who primarily represents class action plaintiffs against employers testified that "credit checks have not been shown to be a valid measure of job performance."  Including a reference in the discussion letter to testimony opining that credit checks do not effectively predict job performance (and then posting the letter on the Commission's website) suggests that some at the Commission may share a similar view about the use of credit checks to screen applicants.   

While these Informal Discussion letters do not constitute a written opinion or interpretation of the EEOC they are instructive in that they highlight an issue that the EEOC is focusing at least some of its resources.

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I wrote about an unusual dispute between the EEOC and a San Antonio law firm where the EEOC sought enforcement of an administrative subpoena seeking law firm records in connection with a charge of discrimination filed by a former employee of the firm.  You can read that post here.

Well, like Spring itself that blows in like a lion and out like a lamb, the law firm has provided the information sought by the EEOC subpoena and the EEOC has requested dismissal of its application to enforce the administrative subpoena (which has been granted).  Much ado about nothing after all.  You can review the EEOC's Motion to Dismiss here.

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When investigating a charge of discrimination, the EEOC has the authority to issue administrative subpoenas requiring employers to produce relevant information.  This power, however, is rarely used because most employers voluntarily comply with the EEOC's reasonable requests for information. 

In San Antonio, a law firm respondent is testing the EEOC's powers to require information be produced via administrative subpoena.  In EEOC v. Malaise law firm, the EEOC is seeking the names and addresses of employees working for the law firm as potential witnesses.  The request was made in connection with the Commission's investigation of a claim of sexual harassment.   The firm responded that this information was not relevant, constituted a fishing expedition, and invaded the privacy rights of nonparties   The EEOC persisted in its efforts to obtain the information and ultimately issued an administrative subpoena to the firm.  The law firm filed objections to the subpoena which the EEOC overruled (Yes, the EEOC gets to make the rulings on objections made to its subpoenas).  The law firm still failed to comply with the subpoena and the EEOC filed a Petition to Enforce the subpoena in the U.S. District Court. 

The interesting part about the fact the EEOC had to go to court to get this information is that the Commission's court filing shows some insight into how it goes about investigating charges of discrimination. You can read the EEOC's Petition to Enforce here and the affidavit in support of the petition (with all of the fun-to-read exhibits containing the charge and letters between the firm and EEOC)  here.

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On February 18, 2010, the EEOC published a proposed rule defining the employer's "reasonable factors other than age" (RFOA) defense to a claim of disparate impact age discrimination.  A disparate impact theory of age discrimination argues that while the policy or practice challenged does not directly discriminate on the basis of age; it affects older workers in greater numbers.  When a plaintiff can show that an age-neutral employment policy or practice has an adverse impact on workers 40 and over, the burden shifts to the employer to show that the challenged policy or practice is based on RFOA.

The proposed rule defines a RFOA as "one that is objectively reasonable when viewed from the position of a reasonable employer (i.e., a prudent employer mindful of its responsibilities under the ADEA) under like circumstances."  The proposed rule goes on to provide that "to establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known to the employer."

The proposed rule identifies the following non-exhaustive list of factors that may be relevant when examining whether an employment policy or practice is based on a reasonable factor other than age:  

• Whether the employment practice and the manner of its implementation are common business practices;
• The extent to which the factor is related to the employer's stated business goal;
• The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
• The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
• The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the number of persons adversely affected, and the extent to which he employer took preventive or corrective steps to minimize the severity of harm, in light of the burden of undertaking such steps; and
• Whether other options were available and the reasons the employer selected its chosen option.

An employer is not required to adopt an employment practice that has the least severe impact on the older workers; however, the availability of other options is one factor relevant in determining whether the practice was reasonable. Of course, the RFOA defense only applies to those employment practices that are facially age-neutral.  The proposed rule explains that its analysis will most often apply when the practice is based on an objective non-age factor and the only question is the reasonableness of the factor.  However, in considering whether the practice is based on a "factor other than age", the EEOC suggests analyzing:

• The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;
• The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and
• The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

Following a sixty (60) day public comment period, the EEOC will review comments and potentially make revisions to the proposed rule before publishing a final rule that would go into effect ninety (90) days after publication.   A copy of the proposed rule and the EEOC's preamble can be accessed here.

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For more than 15 years Texas employers have used the application of uniformly enforced neutral absence control policies setting a maximum duration an employee can be away from work as a defense to workers' compensation retaliation claims.  The defense was first solidified by the Supreme Court of Texas in in its 1996 Continental Coffee Prod. v. Casarez case.  See 944 S.W.2d  (Tex. 1996).  Employers who end the employment relationship with a worker's compensation claimant for violating reasonable absence control rule will not normally be liable for workers' compensation retaliatory discharge claims if rule is uniformly enforced (i.e., it is applied to all types of absences and not just those arising from on-the-job injuries).  Following Casarez Texas employers routinely included neutral policies setting forth neutral absence control policies that set maximum durations of time for employees to be away from work (excepting from the maximum duration certain types of statutory protected leaves like FMLA and USERRA leave).

The continuing viability of the neutral absence control policy is in jeopardy with the passage of the ADA Amendments Act.  The ADA Amendments Act substantially expanded the number of employees who can claim disabled status and are therefore entitled to reasonable accommodation.  Reasonable accommodation may include modification of employer policies that might enable the employee to be able to return to work --including, perhaps, an extension of a leave of absence past the maximum set forth in the employer's written policies.

The EEOC has been targeting inflexible leave of absence policies as violating the ADA with greater frequency.  Last September the EEOC sued UPS challenging the company's policy of allowing a maximum 12 months of medical leave claiming that the policy does not adequately accommodate employees with disabilities.   The EEOC also sued Supervalue, Inc./Jewel-Osco over their leave of absence policies that limited the amount of leave an employee could take and challenged another policy that limited participation in the employer's light duty program to only those employees recovering from a work-related injury --something court's had previously held was permissible.  The EEOC also challenged another leave of absence policy it characterized as "inflexible" on behalf of a pregnant employee against D.R. Horton by using the ADA rather than the Pregnancy Discrimination Act.  Indicating that the EEOC's efforts are having some success, the EEOC recently obtained a consent degree against Sears and a $6.2 million settlement of ADA claims arising from Sear's use of an inflexible workers' compensation leave of absence policy that terminated the 235 employees upon the exhaustion of the leave of absence period. Clearly, inflexible neutral leave policies having setting forth maximum durations for leaves of absence are in the cross-hairs of the EEOC.

The ADA Amendments Act and challenges to neutral absence control and maximum duration of leave policies put Texas employers to a Hobson's choice.  The uniform, mechanical application of such policies provide an employer a defense to a Texas workers' compensation retaliation claim.  Now, however, the policy might give rise to a claim of failure to reasonably accommodate an employee with a disability who needs an extension of the maximum leave period to return to work.  Employers should reevaluate their leave of absence policies to make sure they are sufficiently flexible as to provide reasonable accommodation to qualified individuals with disabilities.  By making exceptions to neutral absence control or maximum duration of leave policies, the exceptions may dilute the protections those policies once provided against workers' compensation retaliation claims.  

Photo courtesy of Sharon Ellman, Ellman Photography.

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The EEOC has released its FY 2009 Charge Statistics and they show a surprising decrease in the number of charges filed with the agency (although FY 2009 is compared against the highest charge filing fiscal year ever).  The total number of charges in FY 2009 dropped from 95,402 in FY 2008 to 93,277 in FY 2009.  While there was a drop in the overall number of charges filed, FY 2009 still recorded the second highest number of charges ever filed.  

The breakdown of the FY 2009 statistics shows that there were small increases in the number of charges alleging national origin, religious discrimination and retaliation.  There was a nearly 2,000 charge increase in disability-related charges.  The categories all saw record high filings.  All other charge categories saw a decrease in charge filings. 

Prediction for FY 2010 numbers --Expect to see continued increase in the number of disability and religious discrimination filings with other categories remaining relatively constant.  You can find full detail on the number of charge filings here.

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The EEOC recently brought suit against the country's largest home builder on behalf of a pregnant employee who was denied a period of unpaid leave in addition to the maximum permitted under the employer's policies.  What is unique about this suit is that the EEOC brought the suit under the Americans with Disabilities Act rather than the Pregnancy Discrimination Act.

According to the Commission's press release, D.R. Horton, 

denied [the plaintiff] additional unpaid leave time after her doctor placed her on bed rest for over seven months as a result of pregnancy-related complications. Although the company initially provided some leave time, it finally stated it was against company policy to provide the employee any more leave time, even if it was unpaid, and then fired her.

Prior to the passage of the ADA Amendments Act, it is unlikely that the EEOC would have brought this case under the ADA because most courts were reluctant to conclude that pregnancy was a disability.  Instead, the Commission would have had to show under the Pregnancy Discrimination Act that the pregnant employee was treated differently than other nonpregnant employees who were similar in their ability and inability to work (i.e., similar work restrictions).  However, the EEOC is targeting employer leave policies that are perceived by the Commission as rigid.  An example of such policy is one that provides a maximum leave duration of six or twelve months.

One aspect of this tactic that should be troubling to Texas employers is the fact that Texas law uses the enforcement of a neutral absence control policy as a defense to a workers' compensation claim.  Where an employer uniformly and consistently applies a leave of absence policy with a maximum duration, an employee who is separated from employment for exhausting the available leave of absence, even if the absence is caused by an on-the-job injury, will have no workers' compensation retaliation claim.  Suits like the EEOC's suit against D.R. Horton may have the effect of requiring employers to make more frequent exceptions to these neutral absence control policies that might weaken their effectiveness as a defense in Texas workers' compensation retaliation cases.

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The EEOC issued a new poster that incorporates provisions of the Genetic Information Nondiscrimination Act (GINA).  The new poster also includes updates from the Department of Labor.  A copy of the poster can be printed here.  Covered entities are required to post GINA notices not later than November 21, 2009.   Covered entities include, among others, employers with 15 or more employees.  

According to the EEOC, there are several ways to comply with the new posting requirement by November 21, 2009.

• Print the supplement (download here) and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.
• Print and post the EEOC’s November 2009 version of the “EEO is the Law” poster.  (here)
• Order a new poster through the EEOC Clearinghouse.  The new posters is currently on backorder and will be shipped when available. 

Of course, employers can also order new posters from their vendor that provides multiple required employer posters in a single poster. 

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The EEOC recently published proposed regulations designed to implement provisions of the ADA Amendments Act (ADAAA). The proposed regulations incorporate significant changes to the law and provide numerous illustrative examples. A full copy of the proposed regulations can be accessed here.  The following sections summarize some of the significant points.

Presumptively Disabling Impairments

The proposed regulations provide a list of impairments that the EEOC believes will consistently qualify as disabilities. These include: deafness, blindness, intellectual disability (formerly termed mental retardation), partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy HIV or AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, or schizophrenia. 

Conversely, the proposed regulations also identify several impairments that, when temporary or of short duration and having little residual effects, will not normally constitute disabilities. These include: common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely).

Substantially Limiting Impairments

The regulations suggest that whether an individual has a disability should not demand extensive analysis. In determining whether a physical or mental impairment substantially limits a major life activity, the proposed regulations direct that ameliorative or other mitigating measures (e.g., medication, medical supplies, learned behaviors, assistive technologies, surgical interventions or reasonable accommodations) should not be considered in determining whether the impairment is substantially limiting. Furthermore, for episodic or impairments in remission, the inquiry is whether the impairment would limit a major life activity when active.

Major Life Activities

The proposed regulations expand the definition of “major life activities” through two non-exclusive lists. The first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.

The second list focuses on the body systems and functions and includes functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.

With respect to working as a major life activity, the proposed regulations jettison the concept that an individual must be substantially limited in the ability to perform a broad range and class of jobs for working to constitute a major life activity. Instead, the proposed regulations direct that the ability of the individual to meet the qualifications for the type of work at issue is the proper inquiry.

Regarded As Disabled and Reasonable Accommodations

The proposed regulation eliminate the requirement that an individual demonstrate the employer regarded the individual as disabled. Rather, if the individual is subjected to an action prohibited by the ADA because of an actual or perceived impairment, that alone will be sufficient to establish the individual is regarded as disabled. 

The proposed regulations also clarify that individuals who are solely disabled under the “regarded as” prong are not entitled to reasonable accommodations.

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A federal appellate court with jurisdiction over Texas held that chronic fatigue syndrome (CFS) may qualify as a disability under the Americans with Disabilities Act. According to the Centers for Disease Control, CFS is characterized by symptoms including weakness, muscle pain, impaired memory and/or mental concentration, insomnia, and post-exertional fatigue lasting more than 24 hours.  There is no known diagnostic test for CFS and physicians are left to rely on forensically unreliable self-reports of the patient to make this diagnosis.   Notwithstanding this inability to test for or confirm the existence of this "syndrome," the federal court of appeals covering Texas held that CFS might qualify as a disability that an employer must reasonably accommodate. 

In EEOC v. Chevron Phillips Chemical Co., L.P., the Fifth Circuit Court of Appeals reversed a summary judgment in favor of Chevron on an employee's claim that she was discriminated against and denied reasonable accommodation for her chronic fatigue syndrome.

The employee, Lorin Netterville, was first diagnosed with CFS in 1987 while attending school and caring for her children at home.  She received a six-week course of treatment and her symptoms disappeared.  In late-2000 Netterville applied for employment with Chevron and was eventually hired.  As part of the employment process Netterville completed a medical history questionnaire, where she failed to disclose a history of excessive fatigue with work or exercise.

Several years later Netterville was required to work long hours of overtime that included manually packing boxes and moving supplies as part of Chevron's office relocation. Netterville claims she begin to suffer sleep disruptions that included getting no more than 1-2 hours of sleep per night for 6-7 days at a time.  Once a month she claimed she would sleep 17 hours straight.  She also claims she "began to run low-grade fevers and to suffer from headaches, disorientation, pain in her temples, stiff joints, pain in her arms and legs, and numbness in her legs, as well as aphasia and problems with memory, concentration and decision-making at times she was unable to remember even her own son's name."  She became unable to sit or walk for more than thirty minutes at a time, was hypersensitive to light and sound, and experienced episodic crying spells and feelings of social isolation.  Approximately 1 year after her symptoms reoccurred Netterville was living with her sister who assisted her with daily living tasks like shopping, cooking, washing, showering, drying, dressing, and using the bathroom.  This assistance was primarily needed because of excruciating pain in Netterville's arms and morning nausea she experienced.

Netterville's physician suggested that she take a month off from work.  Because Netterville could not afford a month off without pay, she got her doctor to write a note advising for a two week break from work.  When Netterville presented her request to Chevron for the 2 weeks of time off, she inaccurately reported that her symptoms had reappeared 2 years earlier.  Because Netterville was hired by Chevron less than 2 years earlier, the company also began investigating whether Netterville had falsified her medical history questionnaire in addition to considering her leave request.  Ultimately Netterville was given her two weeks of leave.

Netterville's physician conditioned her release to return to work on additional accommodations.  He recommended that she be relocated to an office closer to her home.  Additionally, due to her alleged hand pain and concentration difficulties, the doctor also advised that Netterville needed to be in a job that allowed for alternate typing and reading rather than reading and typing for extended periods of time.  She also needed to be able to take a short nap during her lunch break.  When Netterville made these requests to her supervisor, he remained silent.  She was allowed, however, to return to work, and she was provided the accommodations she requested during her final 4 days at work.  Ultimately, Netterville was terminated for falsifying information on her medical questionnaire.

The EEOC filed a lawsuit on Netterville's behalf.  Relying heavily on EEOC-promulgated regulations and its compliance manual (the EEOC is one of the governmental agency litigants that gets to write the authority it then asks a court to rely on to find in its favor --something no private employer is allowed to do), the court of appeals held that Netterville was entitled to a jury trial on her claims because there were fact issues as to whether Netterville had a disability; whether she was terminated for a disability; and whether Chevron provided reasonable accommodation.

This case is an important reminder that any physical or mental impairment may qualify as a disability if it substantially limits a major life activity. Moreover, the major life activity substantially limited need have no bearing on an employee’s employment or performance of his or her job duties. With the passage of the ADA Amendments Act that substantially broadens the coverage of individuals with disabilities, expect more denials of and reversals of employer summary judgments in ADA cases.

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For several years the EEOC has enhanced its education and enforcement efforts using existing laws to protect employees with caregiving responsibilities (i.e., caring for children and ill family members).  This week the Commission issued guidance for employers it describes as "Best Practices" to assist employees in balancing work and family responsibilities.  Best Practices are proactive measures going beyond federal nondiscrimination requirements to help employees achieve a satisfactory work-life balance.

Acting EEOC Chairman Stuart J. Ishimari remarked that "Today we take another step forward, articulating not just the bare minimum required to avoid unlawful discrimination, but also thinking broadly about the ways in which family-friendly workplace policies can improve workers' ability to balance caregiving responsibilities with work."

The new guidance supplements the EEOC's 2007 guidance on Unlawful Treatment of Workers with Caregiving Responsibilities.  In addition to some common sense recommendations (e.g., train managers; develop, disseminate and enforce a strong EEO policy; investigate complaints), the most interesting suggestions to me are those related to flexible work arrangements. Some of the alternative work arrangements suggested include:

• Flexible work hours (i.e., permit a varying starting and stopping time within a certain range);
• Flexible week opportunities (e.g., work week consisting of four 10-hour days);
• Allowing for voluntary rather than mandatory overtime and allowing overtime to be scheduled in advance;
• Telecommuting, work-at-home or flexplace programs;
• Reduced-time options (i.e., part time work or job sharing programs).

EEOC's guidance provides a useful reference for any employer desiring to become more family-friendly and better assist its employees in achieving a balance between family and work. 

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The EEOC recently released the latest statistics detailing the number of charges of discrimination filed in 2008.  Last year marked the largest number of charges filed in a single year totaling 95,402 charges of discrimination.  While every category of charges increased (and the total increased 15.2 percent over 2007), charges of age discrimination and retaliation increased the most at 28.6 and 22.6 percent respectively. 

Disability discrimination claims saw the least amount of growth at 9.6 percent.  However, with the passage of the ADA Amendments Act in 2008, I expect 2009 disability discrimination claims to be up sharply during 2009.  Equal Pay Act claims were also up 16.6 percent and with the passage of the Lilly Ledbetter Fair Pay Act, claims arising under that statute will also likely increase in 2009 and beyond.  With escalating unemployment, the deepening recession, and an increase in the EEOC’s budget, I expect charge filings for 2009 will again set an all-time record for charge filings across all categories and an uptick in resulting civil rights litigation against employers.

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