The U.S. Equal Employment Opportunity Commission (EEOC) has announced that 93,277 workplace discrimination charges were filed in fiscal year 2009.  That’s the 2^nd highest total ever.

Over $376 million dollars were collected for discrimination victims. Discrimination charges based on disability (up 10%), religion (1% increase) or national origin (up 5%) hit record highs.

Age claims reached the 2^nd highest level ever.  A change last year in the ADA which, in effect, expanded the definition of disability may be driving some of the increase in ADA claims.

The most frequent types of charges continued to be those based on race (36%), retaliation (36%) and sex (30%).

Several types of discrimination can be included in a single claim. The high number of complaints may be due to a number of factors, including the economy, increased diversity, and demographic changes.

This posting is part two of two - See Monday, 9/22 for part one.

What’s Been Changed?
1.  The definition of “disability” must be broadly interpreted in the future.  The Amendments strongly state that “the Act shall be construed in favor of broad coverage of individuals…to the maximum extent permitted….”

2.  The definition of “major life activity” is expanded.  Before the Amendments the ADA did not specify examples of major life activities.  The Amendments define major life activities to include, but not limited to:  caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking ,standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Additionally, the Amendments add new major life activities that involve “major bodily functions.”  Those functions include such things as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.  Major life activities just got a whole lot more inclusive.

(more…)

This posting is part one of two – Check back on Wednesday, 9/24 for part two.

Congress has passed the The ADA Amendments Act of 2008.  The Act, which received final Congressional approval on September 17, will significantly expand coverage of the Americans with Disabilities Act.  President Bush has indicated that he will sign the bill which is effective on January 1, 2009.  The legislation was in response to criticism of court decisions that excluded many individuals who it was thought should be covered under the ADA.

The new law will undoubtedly increase the number of individuals protected under the ADA and likely spur more litigation.  It also will require changes by employers to ensure compliance and avoid time consuming and costly employee complaints and lawsuits.The ADA applies to organizations with 15 or more employees, including part time and temporary workers. You’ll remember that under the ADA an individual may be considered to have a “disability” if she,

1.       Has a physical or mental impairment that substantially limits one or more major life activities;

2.       Has a record of such impairment; or

3.       Is regarded as having such an impairment.

Among other things, the new law will change how these disability definitions will be interpreted and applied.

 Check back Wednesday to see specifically what’s been changed.

The Equal Employment Opportunity Commission (EEOC) has issued a new guidance addressing how the Americans With Disabilities Act (ADA) applies to a wide variety of performance and conduct issues, see:  http://www.eeoc.gov/facts/performance-conduct.html

 The EEOC says, “The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards.  At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.”

Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.   The Senate is considering (and the House has already passed) significant amendments to the ADA.  If passed, the new ADA is expected to dramatically increase the number of disability discrimination claims filed by employees.    

The ongoing debate about whether, how and how much to change the federal Americans With Disabilities Act has now moved on to the United States Senate.

Earlier this year, the House of Representatives voted to expand the ADA. The House bill seems to vaguely expand the current definition of disability – an impairment that substantially limits a major life activity – by stating that “substantially limits” means “materially restricts.” It also precludes employers from considering mitigating measures (e.g., drugs that control blood pressure) when deciding if an employee is disabled, although use of eyeglasses can be considered regarding alleged visual impairments.

The bill also attempts to exclude from the definition of disability minor and/or transitory impairments, e.g., the flu or a broken leg lasting less than six months. Sticking to more traditional ADA analysis on at least some points, the proposed Senate bill (S. 3406) defines “substantially limits” as an impairment that prevents or severely restricts an individual from doing activities that are of central importance. Otherwise, the Senate bill seems similar to the measure passed by the House.