Rights Legislation and the Civil Rights Act of 1991
Who is Covered under the Vocational Rehabilitation Act?
Any person who: - Has physical or mental impairment - Has record of such impairment - Is regarded as having such impairment AND - Is qualified for the job - Can perform the essential functions
Compensatory and Punitive Damages Caps for Civil Rights Act of 1991, ADA, and the Rehabilitation Act
Caps are placed on the maximum combined sum of compensatory and punitive damages that may be sought. The same caps are provided for under ADA and the Rehabilitation Act. Each plaintiff may receive up to the maximum award. - 15 to 100 employees --> $50,000 - 101 to 200 employees --> $100,000 - 201 to 500 employees --> $200,000 - More than 500 employees --> $300,000
Compensable Factors and the ADA/ADAAA
Compensable factors should be consistent with the essential function of the job. Take caution in not placing too much weight on physical or mental skills which are not essential functions of a job.
Genetic Information Nondiscrimination Act (GINA) Coverage
Coverage: 15 or more employees; state and local governments
Age Discrimination in Employment Act Coverage
Coverage: All employees and retirees at least 40 years of age who are with private employers engaged in industry affecting interstate commerce with 20 or more employees engaged in interstate commerce or who are with local and state governments
Americans with Disabilities Act Amendments Act Coverage
Coverage: Companies involved in interstate commerce (broadly interpreted) with 15 or more employees
Americans with Disabilities Act Coverage
Coverage: Companies involved in interstate commerce (broadly interpreted) with 15 or more employees for 20 weeks a year or more, plus state and local government, employment agencies and labor unions
Lily Ledbetter Fair Pay Act Coverage
Coverage: Companies involved in interstate commerce (broadly interpreted) with 15 or more employees for 20 weeks per year or more (same as Civil Rights Act). Law is retroactive to May 28, 2007.
Vocational Rehabilitation Act Coverage
Coverage: Employers with federal contracts over $10,000 and federal government
Executive Order 11246 Coverage
Coverage: Federal contractors and federally-assisted construction contractors and subcontractors with over $10,000 in government business in one year
Civil Rights Act of 1991 Coverage
Coverage: Same as Title VII Civil Rights Act of 1964 (companies affecting interstate commerce, employing 15 or more, 20 weeks a year)
Age Discrimination in Employment Act Enforcing Agency
Enforcing Agency: Equal Employment Opportunity Commission (EEOC)
Americans with Disabilities Act Amendments Act Enforcing Agency
Enforcing Agency: Equal Employment Opportunity Commission (EEOC)
Americans with Disabilities Act Enforcing Agency
Enforcing Agency: Equal Employment Opportunity Commission (EEOC)
Civil Rights Act of 1991 Enforcing Agency
Enforcing Agency: Equal Employment Opportunity Commission (EEOC)
Lily Ledbetter Fair Pay Act Enforcing Agency
Enforcing Agency: Equal Employment Opportunity Commission (EEOC)
Vocational Rehabilitation Act Enforcing Agency
Enforcing Agency: The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP)
Executive Order 11246 Enforcing Agency
Enforcing Agency: The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) is responsible for implementing the affirmative action requirements applicable to government contractors and subcontractors.
Genetic Information Nondiscrimination Act (GINA) Enforcing Agency
Enforcing Agency: The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment).
Uniformed Services Employment and Reemployment Rights Act (USERRA) Enforcing Agency
Enforcing Agency: US Department of Labor
Lily Ledbetter Fair Pay Act Impact on HR
If an alleged unfair act happened years ago, employees or their beneficiaries could have a timely claim as long as that unfair act continues to impact their pay or benefits (e.g., as long as employees or their beneficiaries receive employer-provided pension, life insurance, etc.)
Genetic Information Nondiscrimination Act (GINA) Impact on HR
If medical information is obtained, keep it separate from the employee's personnel file and treat as confidential.
Carlton v. Mystic Transportation, Inc., (2nd Cir. 2000)
Issue: Did the company violate the ADEA? Why or why not? Facts: A 56-year-old Director of Marketing had no documented performance problems and his delivery performance-related income increased during his tenure. However, he was terminated, along with 10 other employees, during a reduction-in-force. Three months later, the company rehired a 31-year-old former employee as the Director of Marketing. An offer for rehire was not extended to Carlton. Finding: Yes. The court found that the employer violated the ADEA for a variety of reasons including the fact that other employees were recalled following the reduction-in-force, but Carlton was not called back even though there were no documented performance concerns and delivery income increased during his tenure. Further, Carlton was replaced by a younger employee at a lower salary.
EEOC v. Governor Mifflin School District, 39 F.E.P. 1059 (EDPA 1985)
Issue: Did the employer violate the ADEA? Why or why not? Facts: The employer compressed a 28-step salary ladder to 24 steps. As a result, older employees above step 24 of the old system were denied step increases which younger employees received. All employees received equal merit increases. Finding: No. Although the employees affected by the salary ladder compaction were within the protected age group, the EEOC improperly focused on only one element of the compensation scheme — the step increases. Viewed as a whole, the system benefits older employees because they always receive the highest pay. Moreover, the plan was based on a reasonable factor other than age: the desire of the union and the company to limit the disparity between the highest paid and the lowest paid employees.
Age Discrimination in Employment Act Passage Date
This act was passed in 1967
Vocational Rehabilitation Act Passage Date
This act was passed in 1973
Uniformed Services Employment and Reemployment Rights Act (USERRA) Passage Date
This act was passed in 1994
Lily Ledbetter Fair Pay Act Passage Date
This act was passed in 2009
Americans with Disabilities Act Amendments Act Date
This amendment became effective January 1, 2009
Kersting v. Wal-Mart (7th Cir. 2001)
Issue: Did the employer violate the Americans with Disabilities Act? Why or why not? Facts: A Class II mechanic was injured, resulting in a permanent disability and was no longer able to perform all of the duties of a Class II mechanic. The company created a unique position and allowed him to retain his Class II status as well as maintain an equivalent wage and benefits. During several pay periods, the employee performed both Class II and Class III work allowing him to earn Class III pay for the entire pay period. (Wal-Mart has a "50 percent rule" that states if an employee performs Class III work over 50 percent of his time in a specific pay period, he/she is entitled to receive the higher pay for the entire pay period.) Because he was meeting the 50 percent rule often, Kersting requested a permanent transfer to the Class III pay rate. Wal-Mart denied the request because Kersting could not perform all of the essential functions of a Class III mechanic job and no Class III job was available. Finding: No. Kersting did not suffer an adverse employment action when he was denied a pay increase to the Class III rate. The court found that Kersting was not denied a normal and expected raise and he continues to be eligible for increased pay in those pay periods when he spends over 50 percent of his time doing Class III work. In addition, the company did not violate the ADA in denying him a promotion to the Class III position. Kersting is not a "qualified individual with a disability" due to the fact that he cannot perform the essential functions of the Class III position and further, he did not apply for an open Class III position.
Wright v. State of Calif., (9th Cir. 2000)
Issue: Did the state violate the ADEA? Why or why not? Facts: A 63-year-old retired State Traffic Lieutenant applied for reinstatement as a Lieutenant with the California Highway Patrol. Although he was determined to be physically capable of performing his job, he was denied reinstatement because he was over age 60. Under California law, CHP officers must retire at age 60. Finding: No. State and local governments are exempt from the ban on age discrimination with respect to firefighters and law enforcement personnel.
Tyler v. Ispat Inland, Inc. (7th Cir. 2001)
Issue: Was the transfer to Plant 7 a reasonable accommodation? Was the company's refusal to transfer Tyler back to Plant 2 a denial of a reasonable accommodation? Why or why not? Facts: The plaintiff was an electrician at Ispat's Plant 2 when he began to feel his coworkers were threatening him. The company was unable to substantiate the charges. Following a visit to a psychiatrist, Tyler was diagnosed with a depression and delusional disorder, and was taken off of work. Upon his release to return to work, Tyler agreed to a transfer to Plant 7 where he was paid the same wages and received the same benefits. After a period of time, Tyler began to believe that his new coworkers were harassing and attempting to harm him. He requested a transfer back to Plant 2 saying that his transfer to Plant 7 adversely impacted his employment. The company denied his request. Finding: Yes. The transfer to Plant 7 was a reasonable accommodation and the court found that Tyler suffered no adverse employment action because his wages and benefits remained the same. The company's refusal to transfer Tyler back to Plant 2 was not a violation of the ADA's requirement for reasonable accommodation because a medical reason for the transfer was not given and Tyler refused to supply the company with a medical reason or his medical records.
Supreme court ruling - Impairment
It need not prevent or severely restrict a major life activity to be considered "substantially limiting." The determination of disability should not require extensive analysis. Mitigating measures can be ignored when assessing whether an individual has a disability. The focus of the employer should be on whether the company can provide reasonable accommodation rather than on whether the individual has a disability.
Job Restructuring and the ADA/ADAAA
Job restructuring may include exchanging assignments or existing positions with other employees and redesigning procedures for completing tasks.
Evaluation and Promotion and the ADA/ADAAA
Limiting, segregating or classifying a job applicant or employee in such a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee is prohibited. Therefore, it is important to formulate objective performance and promotion standards which prove to be related to the job's essential function.
Reasonable Accommodation
Modifications or adjustments to a job or job application process that accommodate persons with disabilities but do not impose a disproportionate or undue burden on the employer.
Policies and Procedures and the ADA/ADAAA
Organizations are required to modify policies or procedures that discriminate against qualified employees with disabilities. These changes are not required if the essential function of a job is altered as a result of the changes.
Executive Order 11245 Provisions
Provisions: - Affirmative action - Affirmative action plans - federal contractors with 50 or more employees and $50,000 or more in federal contracts must develop written affirmative action plans for women and minorities if there is underrepresentation relative to qualified individuals, including two major pieces: a written narrative and quantitative analysis. - Applicant tracking - Compensation monitoring
Civil Rights Act of 1991 Provisions
Provisions: - Allows compensatory and punitive damages - Provides for trial by jury - Redefines guidelines for disparate impact cases - Affects mixed-motive discrimination cases - Lengthens timeframe for challenging seniority systems
Lily Ledbetter Fair Pay Act Provisions
Provisions: - A charge of discrimination must be filed within 180/300 day timeframe outlined in the Civil Rights Act but timeframe starts over each time an employee receives compensation (wages, benefits or other). - Remedies are the same as those specifically provided under the Civil Rights Act of 1964.
Americans with Disabilities Act Provisions
Provisions: - Prohibits discrimination in any aspect of the employment relationship - A charge of discrimination must be filed within 180 days of the alleged discriminatory act - Time limit may be extended up to 300 days if there is a state or local fair employment practices agency enforcing a law prohibiting the same alleged discriminatory practice. - Remedies are the same as those specifically provided under the Civil Rights Act of 1964.
Genetic Information Nondiscrimination Act (GINA) Provisions
Provisions: 180 days to file a charge; may be extended by state laws. Employer is prohibited from requesting, requiring, or purchasing genetic information and family medical history. Only exception is for wellness programs where information requested is voluntary and not disclosed to employer.
Americans with Disabilities Act Amendments Act Provisions
Provisions: A charge of discrimination must be filed within 180 days of the alleged discriminatory act. - Time limit may be extended up to 300 days if there is a state or local fair employment practices agency enforcing a law prohibiting the same alleged discriminatory practice. - Remedies are to put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never occurred. A victim of discrimination may be able to recover attorney's fees, expert witness fees, court costs as well as compensatory and punitive damages.
Vocational Rehabilitation Act Provisions
Provisions: Prohibit discrimination against physically or mentally disabled individuals - Amended in 1992 to be consistent with ADA in nondiscrimination standards, essential functions, qualification standards, direct threat, reasonable accommodation, undue hardship and pre-employment questions. - Key differentiator between the Vocational Rehabilitation Act and ADA is that government contractors are required to use affirmative action in employment of the disabled. - Employers only have to hire and retain qualified individuals who can perform the essential functions of the job.
Americans with Disabilities Act Amendments Act Purpose
Purpose: Eliminate discrimination by affirming the "broad scope of protection" through expanding the definition of "disability"
Vocational Rehabilitation Act Purpose
Purpose: Employ and advance individuals with disabilities
Americans with Disabilities Act Purpose
Purpose: Improve quality of life for the disabled and prevent discrimination in any aspect of the employment relationship. Prior to this only federal contractors and the federal government were covered by the similar Vocational Rehabilitation Act.
Age Discrimination in Employment Act Purpose
Purpose: Prohibit age discrimination with respect to compensation, terms, conditions or privileges of employment
Genetic Information Nondiscrimination Act (GINA) Purpose
Purpose: Prohibit discrimination against employees or applicants based on: - An individual's genetic tests - Tests of an individual's family members and - Information relating to an individual's family medical history
Civil Rights Act of 1991 Purpose
Purpose: Prohibit discrimination on the basis of the specific protected classifications under Title VII, ADA and ADEA. Creates new remedies and rights for plaintiffs in Title VII cases, partly to counteract three 1989 Supreme Court Cases perceived by congress as weakening protections under Title VII.
Uniformed Services Employment and Reemployment Rights Act (USERRA) Purpose
Purpose: Prohibits discrimination and protects uniformed services employees that fulfill military service and reserve responsibilities while employed as a civilian
Executive Order 11246 Purpose
Purpose: Prohibits discrimination in employment decisions on the basis of race, color, religion, sex, or national origin
Lily Ledbetter Fair Pay Act Purpose
Purpose: The new law creates a rolling or open timeframe for filing wage discrimination claims brought under Title VII, ADEA, ADA, ADAAA and the Vocational Rehabilitation Act.
USERRA Timely Reporting
Service Reporting deadline 1-30 days 1st regular work day after return travel + 8 hrs. 31-180 days 14 days >180 days 90 days
Dispute Resolution: Arbitration
Takes place in a more formal setting before an impartial third party. - Binding arbitration means that the decision of the arbitrator is final and both parties are bound by it. Binding arbitration must be voluntary. - Non-binding arbitration means just the opposite. If either side disagrees with the arbitrator's decision, they are not bound by it. This allows either side to file in court to go to trial. - Arbitration is often preferred by employers because it is usually faster and less expensive than going to trial. - Arbitration must provide for the same types and amounts of damages as available at trial.
Reasonable Accommodation Examples
- Acquiring or modifying equipment or devices - Job restructuring - Part-time or modified work schedules - Reassignment to a vacant position - Adjusting or modifying examinations, training materials or policies - Providing readers and interpreters - Making the workplace accessible and usable
USERRA Eligibility
- Advance notice - employee gave advance notice of intent to activate service in uniformed service. Verbal notice is sufficient. Not required to provide notice of intent to return to job at time of departure. - Service not exceeding five years - Timely reporting - Discharge honorable, medical or uncharacterized - Hold civilian job
Uniformed Services Employment and Reemployment Rights Act (USERRA) Coverage
- Any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment opportunities - Employers are required to honor reemployment rights for those employees that "are a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service" (Title 38 US Code section 4311).
Definition of Disability
- Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems which limit a major life activity. ADAAA changed law so that those with treatable impairments such as diabetes, epilepsy, cancer, and post-traumatic stress are covered. - "Major life activities" 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, and working.
Age Discrimination in Employment Act Exceptions
- Bona fide executives - Elected officials - Bona Fide Occupational Qualifications (BFOQs) - Reasonable factors other than age - Seniority system - Firefighters and law-enforcement officials - Bona fide benefits plan - Example: An organization may have different life insurance rate schedules for different age groups since the rates increase as the participants age.
Compensatory and Punitive Damages
- Compensatory damages compensate or reimburse the injured party for actual losses. The goal is to make the party whole and put him or her in the position they would have been had the injury or loss not occurred. - Punitive damages are designed to punish the wrongdoer and to deter others from similar wrong doing. Punitive damages arise when the behavior is particularly egregious.
Dispute Resolution: Court
- Dismissal - Only occurs if a defendant can prove the plaintiff is not entitled to recover under any applicable law - Courts reluctant to dismiss complaints - Summary judgment - Decision on the merits of a claim - Granted only when no dispute to any material fact and undisputed facts show one side or the other entitled to prevail - Summary judgment can be avoided by showing conflicting evidence about the material fact. - Trial
Possible Results of Disability Violations
- Hiring - Reinstatement - Promotion - Back pay - Reasonable accommodation - Compensatory and punitive damages
Compensation Issues Affected by the ADA and ADAAA
- Job descriptions - Job restructuring - Evaluation and promotion issues - Policies and procedures - Compensable factors
Dispute Resolutions
- Mediation - Arbitration - Court - Dismissal - Summary judgement - Trial
Enforcement of Executive Order 11246
- Random audits by OFCCP - Recommend Department of Justice enforcement - Recommend EEOC enforcement of Title VII - Cancel, terminate, suspend current contracts - Prevent any future federal government contracts - Secure compliance by conference or mediation
Reasonable Accommodation Criteria
- Size of the business - Number / type of facilities - Budget - Type of operation - Composition - Make-up of the workplace - Nature and cost of accommodation
Preemployment Medical Examinations
- Specifically prohibited under ADA - Allowed if all employees in job also must take exam - Drug testing excluded - Medical exam results must be kept confidential and maintained in separate medical files
Uniformed Services Employment and Reemployment Rights Act (USERRA) Provisions
- Those who serve in the uniformed services are entitled to the continuation of their position, seniority, status and pay rate as if there had not been a break in employment. - Health benefits and pension plans are protected by USERRA for 24 months on medical at COBRA costs. - Employer cannot require employees to use their accrued vacation and sick pay to offset pay during uniformed service. - USERRA does not supersede a local or federal law unless it provides better benefits for the employee (i.e., health premiums, pay continuation and other benefits). - USERRA establishes a five-year cumulative total of military service with a single employer.
Essential Functions of a Position Determining Factors
- Whether the reason the position exists is to perform the function - Number of other employees available to perform the function or among whom the performance of the function can be distributed - Degree of expertise or skill required to perform the function
Who is Covered under ADA/ADAAA?
-Any person who: - Has a physical or mental impairment - Has a record of such an impairment - Is regarded as having such impairment - Associates with the disabled - AND, is qualified for the job
Dispute Resolution: Mediation
A process whereby a trained facilitator attempts to bring the parties together. The mediator(s) may set ground rules, offer a non-threatening environment, facilitate communication, provide creative solutions and obtain consensus. The mediator, however, has no authority to mandate a solution.
1991 Amendments
Amendments to the Civil Rights Act of 1964: - Provides for trial by jury - Redefines guidelines for disparate impact cases - amends Title VII to require employers to prove (and not merely produce evidence) that practices having a disparate impact on protected classes are job-related and consistent with business necessity - Affects mixed motive discrimination cases - occurs when a Title VII plaintiff demonstrates that an employer's decision was partially motivated by discrimination, but the employer demonstrates that it would have made the same decision absent discrimination - Allows for compensatory and punitive damages (only non-public employers)
Timeframe for Challenging Seniority Systems Under Civil Rights Act of 1991
Violations occur: - When seniority systems are adopted - When an individual is subjected to the system - When a person is affected by the system This part of the legislation was a response to the U.S. Supreme Court case Lorance v. AT&T. In this case all women who transferred from one department to another department lost their seniority. Statute of limitations prevented women from suing for discriminatory seniority system because seniority rule was implemented far in advance of the women being subjected to or impacted by the rule change.
Job Descriptions and the ADA/ADAAA
Written job descriptions prepared prior to filling a position are considered evidence of essential functions. All job descriptions should be reviewed on a regular basis to ensure that they are complete and that they cover the critical or essential functions of the job.
Essential Functions Impact on Human Resources
Your judgment as to which functions are essential and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions.
