On August 20, 2019, the Ninth Circuit dodged answering the question of whether morbid obesity is a disability under the Americans with Disabilities Act. In Valtierra v. Medtronic Inc., No. 17-15282, the Ninth Circuit affirmed the District Court’s grant of summary judgment in favor of the defendant, but came short of joining the Second, Sixth, Seventh and Eighth Circuits in explicitly holding that obesity cannot constitute a disability under applicable EEOC regulations unless there is evidence that the obesity is caused by an underlying physiological condition.
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The Equal Employment Opportunity Commission (EEOC) suffered a setback in its attempt to establish that the Americans With Disabilities Act (ADA) requires an employer to reassign an employee to an available position without having to compete with other candidates for that position.  In EEOC v. St. Joseph’s Hospital, the Eleventh Circuit Court of Appeals

On August 25, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues. In addition to outlining expanded definitions of “opposition” and “participation” activity with respect to retaliation claims, the EEOC also addressed section 503(b) of the ADA.  Section 503(b) makes it unlawful to “coerce, intimidate, threaten or interfere” with an individual who attempts to exercise ADA rights or one who assists or encourages others to do so.

What Makes ADA Interference Different

In its guidance, the EEOC notes the interference provisions of the ADA are broader than the statute’s anti-retaliation provisions. Specifically, actions that may not be materially adverse for a retaliation claim may suffice for an interference action.  Another distinguishing feature of an ADA interference claim, according to the agency, is that an individual pursuing relief need not be a qualified person with a disability.
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The EEOC reported a record number of private sector discrimination charges filed in FY 2010, nearly reaching the 100,000 mark.  99,922 charges were filed in FY 2010, an increase of 6,645 (7%) from FY 2009. The most frequently filed charges were retaliation (36%), race discrimination (35.9%), and sex discrimination (29.1%).

Disability discrimination charges increased more

 The "law" or "lore" requiring employers to accommodate employees by excusing absence has reshaped employer attendance and productivity expectations.  Some say the law, as interpreted by the Equal Employment Opportunity Commission, goes too far and creates an elusive and unworkable standard for managing employee attendance and productivity. 

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We posted recently about GINA’s prohibiting an employer from “actively” listening to conversations between colleagues in which they discuss their genetic information, including family medical history, and how it will limit an employer’s internet searches of applicants and employees. Add casual conversations, sometimes referred to as "water cooler" conversation, to the list of workplace activities curtailed by GINA.

 Talk about a reasonable accommodation challenge. What is an employer to do when its accommodation of one employee’s medical condition triggers another employee’s medical condition? The New York Times reported recently that the City of Indianapolis faced such a situation recently and is now facing an EEOC “failure to accommodate” charge. 

According to the Times