EEOC ENFORCEMENT OF AMERICANS WITH DISABILITIES ACT

Mike King
January 17, 2012 — 1,515 views  
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All private, state, and local government employers with 15 or more employees must comply with the U.S. Equal Employment Opportunity Commission (EEOC) "final rule" implementing the Americans with Disabilities Act Amendments Act (ADA Amendment).  Your business needs to comply with the ADA Amendment and the EEOC "final rule" to avoid being sued for discrimination! 

So What is the Purpose of the ADA Amendment?  One purpose is to expand the definition of the term "disability."  Now it is "much easier" for people to show that they are "disabled" (according to the EEOC and they should know). 

The ADA Amendment defines "disability" in three ways: 

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

2.         as having a record of some physical or mental impairment substantially limiting a major life activity; or

3.         as an action prohibited by the ADA because of actual or perceived impairment that is "not both transitory and minor." 

A claim of failure to hire or promote, or to terminate, or of harassment of a disabled employee might be sustained under any of the three parts of the definition of disability.  An aggrieved employee only needs to meet one of the three prongs of the definition of disability in order to state a claim against the employer. 

But What is a "Physical or Mental Impairment"?  A physical or mental impairment is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss that affects one or more body systems.  These terms include mental or psychological disorders and specific learning disabilities, among other things.

Can We Get Any Guidance as to Specific Impairments That Will Be Determined to Substantially Limit a Major Life Activity?  The new regulations provide some examples of disabilities impairing major life activities.  Deafness, blindness, intellectual disability, missing limbs, mobility impairments, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia are impairments that will be considered disabilities. 

What Do the Regulations Require? 

In general—(1) It is unlawful for a covered entity to discriminate on the basis of disability against a qualified individual in regard to: (i) Recruitment, advertising, and job application procedures; (ii) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring; (iii) Rates of pay or any other form of compensation and changes in compensation; (iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists; (v) Leaves of absence, sick leave, or any other leave; (vi) Fringe benefits available by virtue of employment, whether or not administered by the covered entity; (vii) Selection and financial support or training, including: apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training; (viii) Activities sponsored by a covered entity, including social and recreational programs; and (ix) Any other term, condition, or privilege of employment.

The Federal Register has the EEOC "Regulations to Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended" printed on many pages of fine print.  As with any federal regulations, compliance will be tricky and the consequences of noncompliance will be painful.  Update your policies and procedures now and make sure that all of your managers are well-informed as to the proper guidelines for dealing with employees with disabilities. 

To prevent your business from being disabled by noncompliance with the ADA, seek legal advice!  Please let me know if you need any assistance in preventing discrimination in your workforce. 

Best regards,

GAMMAGE & BURNHAM P.L.C.

By   

Michael R. King

Mike King

Gammage & Burnham PLC

Michael R. King is a founding partner of Gammage & Burnham, P.L.C., a Phoenix law firm with diverse areas of emphasis. His practice primarily centers around bankruptcy and creditors' rights, commercial litigation, including uniform commercial code cases, and real estate and business law. Mr. King is a former of the Creditor/Debtor Rights Committee and is a current member of the Bankruptcy, Real Estate and Construction Law Sections of the State Bar of Arizona. He is the past chair of the Board of Trustees of the Maricopa County Bar Foundation. Mr. King is an active alumnus of The University of Arizona, where he received his B.A. and J.D. degrees, with distinction and high distinction.