New Jersey Employment Lawyer Blog

Last week, I discussed the Equal Employment Opportunity Commission ("EEOC")'s new regulations regarding the Americans with Disabilities Act Amendments Act (ADAAA) which discuss the newly broadened scope of the ADA, and the terms "major life activity" and "substantially limited." In this article, I will focus on ADAAA regulations that cover the concept of "mitigating measures" for disabilities, and how to prove that an employee has a "record of" a disability or is "regarded as" having a disability.

What Are "Mitigating Measures," and When Can They Be Taken Into Consideration Under the ADAAA?

Under the ADAAA, most "mitigating measures" must be ignored when determining whether an individual is disabled include. A mitigating measure is something that reduces or minimizes the limitations caused by a disability. Examples of mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices, hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.

However, the new ADAAA regulations indicate that it is appropriate to consider the negative side effects of a mitigating measure when determining whether an individual is disabled. Similarly, it is proper to consider a mitigating measure when deciding whether an employee is qualified for his job, or is entitled to a reasonable accommodation for his disability.

What Does it Mean to Have a "Record of" a Disability?

In addition to protecting individuals who are actually disabled, the ADA protects individuals with a "record of" a disability. Under the new ADAAA regulations, someone has a record of a disability if he previously had an impairment that substantially limited him in a major life activity, or was misclassified as having an impairment that substantially limited a major life activity.

What Does it Mean to Be "Regarded as" Having a Disability?
The ADAAA also protects individuals who are "regarded as" being disabled. According to the new regulations, this includes any employee whose employer correctly or incorrectly believed he has an impairment, unless the employer reasonably believed the impairment was both minor and expected to last for six months or less. Unlike the previous ADA regulations, under the new regulations an employer does not have to believe the impairment substantially limited the employee's ability to perform a major life activity to regard an employee as disabled.

Continue reading "More About the EEOC's New Americans with Disabilities Act Regulations" »

As I previously discussed, protection for disabled employees was vastly expanded on January 1, 2009, when the Americans with Disabilities Act Amendments Act (ADAAA), a law expanding the scope of Americans with Disabilities Act (ADA), went into effect. On March 25, 2011, the United States Equal Employment Commission (EEOC) established its final regulations clarifying the ADAAA. Courts generally must follow these regulations unless they are inconsistent with the ADAAA.

Below, I discuss some of the regulations regarding the scope of the ADAAA, and the terms "major life activity" and "substantially limited." Next week, I will discus additional regulations that explain when an employer can consider "mitigating measures" for disabilities, and how to prove that someone is covered by the ADA because he has a "record of" a disability or is "regarded as" having a disability.

The Scope of the ADAAA
easier for employees to meet that definition. The ADA still covers individuals who have (1) an actual physical or mental impairment that "substantially limits" a "major life activity;" (2) a "record of" such an impairment, and (3) are "regarded as" having an impairment. However, the meanings of those terms have been broadened significantly.

What is a "Major Life Activity" Under the ADAAA
The regulations explain that the term "major life activity" includes 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.

Some impairments almost always are considered disabilities. Examples include deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

What Does it Mean to "Substantially Limit" a Major Life Activity?
The regulations say the term "substantially limits" should be interpreted broadly and does not necessarily require an individual to be severely or significantly limited. Generally, the focus should be on whether the employer discriminated against the employee, not on whether the employee meets the definition of disabled.

They also say that, when determining whether the impairment is a disability, you can consider the condition, duration, and manner in which an individual can perform a major life activity. They further clarify that an impairment can be covered by the ADAAA even if it lasts less than six months, is episodic, or is in remission. For example, episodic impairments like epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia, and cancer in remission, all can be impairments under the ADAAA.

Continue reading "EEOC Issues New Americans with Disabilities Act Regulations" »

A group of six female employees of Bayer HealthCare Pharmaceuticals recently filed a class action lawsuit claiming the company discriminated against them because of their gender. The case, which was filed in the United States District Court in Newark, New Jersey on March 21, 2011, seeks $100 million in damages.

The lawsuit claims Bayer discriminated against its female employees who hold Associate Director and higher level positions, in violation of the New Jersey Law Against Discrimination and Title VII of the Civil Rights Act of 1964. According to Katherine Kimpel, the employment lawyer who represents the plaintiffs in the lawsuit, "Bayer engages in systemic discrimination against its female employees - particularly those with family responsibilities - by paying them less than their counterparts, denying them promotions into better and higher paying positions, limiting their employment opportunities to lower and less desirable job classifications, and exposing them to different treatment and a hostile work environment."

According to a press release issued by the law firm representing the female employees, the lawsuit claims Bayer published articles describing women as being prone to "mood swings," "indecision," and "backstabbing," and concluding that "women with power are 'loose cannons' who often feel threatened by colleagues." The case further alleges that Bayer's managers made disparaging comments about working mothers, including saying the company "needed to stop hiring women of reproductive age."

According to a company spokesperson, "Bayer denies the allegations of gender discrimination and will vigorously defend itself against these charges." However, "Bayer will not comment further on pending litigation, other than to note that it is committed strongly to a policy of non-discrimination and equal treatment for all employees." Bayer HealthCase Pharmaceuticals, which is a subsidiary of Bayer Corporation, has its headquarters in Wayne, New Jersey.

Continue reading "Gender Discrimination Lawsuit Gives Bayer a Headache" »

On March 22, 2011, the United States Supreme Court ruled that the Fair Labor Standards Act of 1938 ("FLSA") prohibits employers from retaliating against employees who make oral complaints about violations of the FLSA. The FLSA is a federal law that sets minimum wages, maximum hours, and overtime pay requirements. It includes an antiretaliation provision which forbids employers from firing or otherwise discriminating against employees because they "filed any complaint" under the FLSA.

The case, Kasten v. Saint-Gobain Performance Plastics Corp., involves Kevin Kasten's lawsuit against his former employer, Saint-Gobain Performance Plastics Corporation. Mr. Kasten claimed Saint-Gobain fired him in retaliation for his verbal objections to the company's violation of the FLSA. Specifically, he repeatedly told his supervisor, several human resources representatives, and other Saint-Gobain officials that the company was violating the law by locating its time clocks in a place where employees could not get credit for the time they spent putting on and taking off their protective gear. In a separate lawsuit, Mr. Kasten proved that Saint-Gobain violated the FLSA because it was required to pay its employees for the time they spent "donning and doffing" their protective gear.

The Supreme Court found that Mr. Kasten is entitled to try to prove his retaliation case because "filing any complaint" under the FLSA can include making a verbal complaint to your employer. The Court noted that the word "filed" has different meanings in different contexts. Sometimes it implies something in writing, but in other contexts it can include verbal statements. It then considered that when Congress passed the FLSA, it recognized enforcement of the law was likely to depend on "information and complaints received from employees seeking to vindicate rights claimed to have been denied," and that the antiretaliation provision was intended to encourage employee to come forward by preventing employers from silencing them through "fear of economic retaliation." Accordingly, the Court concluded that Congress did not intend to limit the FLSA's antiretaliation protection to written complaints, since that would make it more difficult for illiterate, less educated, and overworked workers to complain. It also explained that limiting complaints to written complaints would prevent Government agencies from using hotlines, interviews, and other verbal complaint methods, and would discourage employees from using informal workplace grievance procedures.

However, the Supreme Court also recognized that it would not be fair to employers if the FLSA's antiretaliation provision applied when the employer did not have fair notice that the employee made a complaint that could subject the company to a retaliation claim. It therefore ruled that an oral complaint must have enough formality that the employer either understood or reasonably should have understood that the complaint was a business concern. In other words, a complaint is "filed" when a reasonable person would have understood that the employee put the employer on notice that he was asserting a right under the FLSA.

Continue reading "U.S. Supreme Court Rules FLSA Forbids Retaliation Against Employees Who Make Oral Complaints" »