Has The Definition Of Disability Gone Too Far?

Discrimination is a stigmatized word, and most workplaces would prefer to sweep the entire topic under the rug. However, just like those awkward conversations at Sex Ed class in your preteen years, certain facts of life should be addressed—and the sooner the better. Whether based on gender, sexual orientation, race, or medical condition, discrimination in hiring practices or office behavior is commonplace. It only takes a quick look at the numbers published by the U.S. Equal Employment Opportunity Commission (EEOC) to see that workplace discrimination is rampant nationwide. Whether representing a claimant in such a suit or victim to one, law firms should be aware of a few legal developments in the area of employee discrimination.

Discrimination complaints have risen to a record high. For the 2010 fiscal year, the EEOC handled 99,922 workplace discrimination charges. Through various enforcement, mediation, and litigation programs, the EEOC recovered roughly $404 million as a result of these suits. Although racial discrimination continues to make up the vanguard of discrimination complaints filed with the EEOC, retaliation charges were actually number one in 2010, with 36,258 claims filed.[1] In light of this week’s changes to the definition of employee disability, however, it won’t take long for disability discrimination, currently at 25,165 claims, to take the lead. As of March 24, more employees qualified for disability benefits. The EEOC announced the final bipartisan regulations for the ADA Amendments Act, which broadens the scope of people who qualify for disability accommodation. HIV infection, diabetes, epilepsy, and bipolar disorder are among the additions to the definition. As such, “More disability lawsuits can be expected to be filed, and importantly, those lawsuits will become much harder to defend against at an early pleading stage,” according to Seyfarth attorney Condon McGlothlen.[2]

Even though these changes are recent, the Supreme Court is already facing momentous cases regarding discrimination and retaliation suits. For example, the Supreme Court will soon decide whether a Lutheran elementary school can be sued for retaliation by a narcoleptic teacher who was fired soon after returning from her disability leave. The controversy in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission surrounds the application of “ministerial exception”.[3] But, of equal note is the fact that narcolepsy, a sleep disorder, is considered a disability. It begs the question, how far must employers go to accommodate illness, medical conditions, or social disorders in their employees? Is a narcoleptic person—characterized by excessive drowsiness and daytime sleep attacks—an appropriate choice for a teacher responsible for the safety of students aged 10-14 years?

Only the Supreme Court can answer those questions. However, there are steps your firm can take to eschew retaliation and discrimination suits.

  1. Conduct employee training on discrimination and rights to disability accommodation. Ensure employees are accountable for attending training and reading and following your firm’s policy manual. The policy manual should contain procedures for discrimination avoidance and discrimination complaints.
  2. Keep up-to-date on the law. The law on discrimination and disability is fluid. As such, be sure your policy reflects these changes and send firm-wide updates on related legal developments.
  3. Good lawyers keep accurate and immediate records. Although lawyers are often trained to be weary of keeping written records of certain matters, discrimination is not one of them. Both employees who experience and employers who receive reports of discrimination based on gender, race, or disability should document all occurrences.    

The definition of disability will change over time. But when it comes to discrimination, the best policy is always the same—one of zero tolerance.

[1]http://www.employmentlawfirms.com/legal-advice/employment/discrimination/most-common-charges-filed.htm

[2]http://blogs.wsj.com/law/2011/03/25/whos-disabled-feds-expand-the-definition/

[3]http://www.abajournal.com/news/article/supreme_court_to_decide_whether_lutheran_school_teacher_can_sue_for_retalia/

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