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Issue #50 - 7.22.08
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Major Developments In Anti-Discrimination Law
We address here two pieces of legislation in Congress that presage major new responsibilities for employers: the Americans with Disabilities Act Restoration Act and the Employment Non-Discrimination Act (ENDA).
As we reported several months ago, both the House and Senate this year saw theintroduction of legislation intended to overturn a number of United States Supreme Court decisions that virtually eviscerated the Americans with Disabilities Act. Although federal anti-discrimination law applies to employers of 15 or more employees, almost every employer will be affected by any federal change, because the states will fall in line with the new federal legislation.
Last week, with stunning speed, a compromise bill—H.R. 3195, which retains the most dramatic provisions—blew through the House committees and then the House . The Senate will now take up the bill. Spokespersons for the coalition of groups that joined to drive the bill say they expect it to pass the Senate and become law by the end of the year.
The bill’s four key provisions:
- It rebukes the Supreme Court’s reasoning in key cases decided in the 1990s and directs the courts to broaden employee protections.
- It requires courts to assess disability without regard to medications or assistive devices, such as prostheses, etc.
- It requires courts to judge permanent medical conditions with episodic effects—such as epilepsy, MS, etc.—as if the condition’s impact is full-blown, even though it might be in remission when the employer takes adverse action.
- It orders courts to reject a demanding standard for assessing whether or not a condition substantially impacts the employee’s daily life activities.
From a practical standpoint, trial courts now must, and will, give great deference to the evidence of disability and discrimination.
What does this mean for your practice?
First, in the absence of a review of your human relations policies and procedures, you may be exposed to disability claims, which can cost you up to $75,000.00 to defend even if you win. The review should address particularly your hiring policies—from the advertising you use, to the questions you may not ask in interviewing.
The best defense to any discrimination claim is a thoroughly documented, consistently applied policy of corrective action. As long as you can produce the documents that show any adverse action was taken for legitimate business needs and did not single out any individual, you are well along in avoiding a legal claim.
As we have discussed in other writings, a major difference between the ADA and other laws is that, in addition to prohibiting discrimination, it requires “reasonable accommodation” for any employee who notifies you of a condition that constitutes a disability. “Reasonable accommodation” is admittedly vague and thus subject to a range of interpretations—many of which will not be favorable to employers. Nonetheless, there are limits on what you must do. The question of accommodation is a cost-benefit analysis. If the cost is too great, accommodation need not be offered. If the only accommodation is one that allows the employee not to do essential functions of a position, you need not offer that accommodation. If the accommodation would displace other workers or cause substantial changes in the office operations that need not be offered.
However, given the attention that lawyers for employees will be paying this area, you should seek advice and assistance whenever you are confronted with a request for accommodation.
Second, be aware that the law does specifically establish the length of a condition that constitutes a disability. Impairment with an actual or expected duration of six months or less categorically cannot be a disability covered by the law. Hence, any condition you know, or reasonably believe, to be temporary may not be the basis of a legal claim. You may discipline or terminate such an employee without concern of a claim.
The second piece of legislation that is moving rapidly through Congress is the Employment Non-Discrimination Act, the ENDA. The bill is a supplement to Title VII of the Civil Rights Act of 1964—the law that prohibits discrimination on the basis of gender, race, national origin or religion. The new bill includes sexual orientation as a class of protected individuals.
So although the framework of the law has been in place for decades, the addition of this new class of individuals protected against discrimination and harassment is significant. Up to this time, the laws prohibiting discrimination against gay and lesbian workers have been a patchwork of state and local ordinances. When the ENDA becomes law, there will be swift action by all states to outlaw discrimination in most workplaces. Hence, virtually every dental practice will be affected.
The passage will require no major changes in those offices that have written anti-discrimination and corrective action policies. By hewing to the policies consistently, the practice need have little concern that a claim will be made—or if made, be successful.
However, this should be a wake-up call for those offices that have neglected the area of employment relations. The reason is simple. In my practice as a plaintiff’s lawyer, I have been consulted many times by gay and lesbian employees who were clearly being subjected to hostile work environments, both by managers and co-workers. There was nothing the law could do for them, but it became apparent that these folks were extremely sensitive to slights and indignities. Much of the sensitivity I found justified.
Given this history of discrimination, and the heightened sensitivity to it, I predict that as soon as the laws pass, there will be a flood of claims against employers. Because many employers will be ignorant of the new law until it is too late to remedy the situation, at least for the first couple years, many will be exposed to substantial liability.
For this reason, it would be wise for any practitioner to audit his or her policies and office procedures and make sure that there is no possibility of exposure.
Mike Moore is ranked among the best in employment law and named one of the top 10 lawyers in Ohio. As Director of McKenzie’s HRSolutions, Mike is the creator of the Employment Policy and Handbook, geared to providing dentists who are unsophisticated in the legal arena with a step-by-step policy manual.
Click here to hear Mike present “7 Elements of an Effective Employment Policy.”
Email Mike at mike@thedentistsnetwork.net.
Interested in having Mike speak to your dental society or study club? Click here