The recent Supreme Court opinion of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553 (Jan. 11, 2012), held that the First Amendment’s Free Exercise Clause and Establishment Clause bar employment discrimination suits brought by ministers against their churches.  A unanimous Court recognized the “ministerial exception” is broad, extending it to workers whose duties are secular, as well as religious.

The case involved a Michigan parochial school teacher who alleged that she was fired in violation of the Americans with Disabilities Act.  While the teacher’s job entailed religious instruction of her students, as well as leading chapel services several times a year, the majority of her work involved teaching secular subjects.

While declining to provide a set formula for determining whether an employee is a minister, and thus barred from bringing a discrimination suit, the Court nonetheless found the facts of the teacher’s case to be sufficient to trigger the exception.  Specifically, the teacher was given a formal ministerial title by the Church, received extensive religious instruction prior to receiving her position, represented herself as a member of the ministry in order to claim certain tax benefits, and performed what the Court deemed “important religious functions” for the Church.

The Court was unswayed by the assertion that Hosanna-Tabor’s religious rationale for the firing was pretextual.  Firings coming under the purview of the ministerial exception do not have to be justified on religious grounds, the opinion stated, but rather need only concern a church selecting who will or will not be one of its ministers. 

The opinion stated that the ministerial exception was an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.  Accordingly, in the wake of this decision, district courts have power to consider employment discrimination claims in this context and to determine whether the ministerial exception serves to bar the claim.

The Court distinguished its decision in Hosanna-Tabor from its decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).  In the latter case, the Court held that Oregon’s denial of unemployment benefits of two members of the Native American Church, fired after ingesting peyote in a religious ritual, did not violate the Free Exercise Clause.  There was no First Amendment protection, the Court stated, from an obligation to comply with neutral, generally applicable laws.  While the Hosanna-Tabor opinion acknowledged that the ADA’s prohibition against retaliatory firing was also a valid and neutral law of general applicability, it noted that the regulation in Smith concerned only outward physical acts, while the challenged ADA regulation interfered with internal church decisions affecting “the faith and mission of the church itself,” allowing the government to insert itself into matters of controversy over religious authority.

The opinion made clear that it only considered the issue of a discrimination suit being brought by a minister.  It offered no opinion on the ministerial exception’s applicability to other claims, such as breach of contract or tortuous conduct by a religious employer.

In a concurring opinion, Justice Thomas advocated against a bright-line or multi-factor test for whether an employee is a minister, stating rather that the courts should defer to a religious organization’s good-faith understanding of who qualifies.  Similarly, Justice Alito’s concurrence, joined by Justice Kagan, stated that referring to someone as a “minister” or requiring ordination is too restrictive, as both phenomena occur principally in Christian denominations, and have few counterparts in other religions.  Instead, the Justices wrote, the ministerial exception should apply “to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”  And a religious group’s ability to fire such a person should be protected if it believes the person’s ability to perform these tasks is compromised.

Arkansas state courts have already applied this doctrine to state law causes of action as well.  In El-Farra v. Sayyed, 365 Ark. 209 (2006), the Supreme Court of Arkansas held that, pursuant to the First Amendment, state circuit courts lacked subject matter jurisdiction to review an Islamic minister’s breach of contract and tort claims against his employer, an Islamic center.

 Several states have adopted “workplace protection” gun statutes that allow concealed handgun licensees to keep a handgun in their personal vehicle on their employer’s parking lot.  The statutory language varies greatly, but the laws essentially “prohibit both public and private employers from restricting their employees’ possession of firearms.”  States that have enacted workplace protection laws include Maine, Florida, Georgia, Kentucky, Mississippi, Utah, Minnesota, Kansas, North Dakota, Oklahoma, Texas, Indiana, Idaho, Arizona, Louisiana.
 
 A similar bill was introduced in Arkansas during the last legislative session. Representative John Catlett (D-Rover) proposed House Bill 1873, which passed the House with 69 votes.  However, the bill died in the Senate Committee at sine die adjournment.  While the bill failed during the past legislative session, it is very likely that a similar bill will reappear in the next legislative session.  Arkansas employers should be aware of the growing possibility that a workplace protection gun law could be enacted in Arkansas and prepare for the implications of such a new law.

 Supporters of these laws argue that employees should be permitted to keep guns in their vehicles at work so that they can protect themselves while traveling to and from work and during their personal breaks away from work, such as lunch.  Opponents argue, however, that allowing employees to keep guns in their cars will increase both the instances of workplace violence and the associated costs.  Opponents also argue that, should an employee lose his or her temper at work, there is no real “cooling off period” when the employee can simply obtain a gun from his or her vehicle.

 Some states provide that an employee can bring a civil action to enforce the workplace protection gun law if the employer refuses to comply with the law.  Some statutes also award damages and attorneys fees for violation of the laws.  Most of the workplace protection statutes, however, provide that employers cannot be held civilly liable for not complying with the statutes. 
 
 As for an employer’s civil liability resulting from the use of a firearm at work, some of the statutes provide immunity to employers, but not all do.  Thus, employers in workplace protection states must consider their potential legal liability for acts of violence arising from employees’ access to guns.  Few courts have so far addressed employer liability and immunity under these statutes, issues that will largely depend upon the specific language of the various statutes and the particular facts of each case.  Potential theories of employer liability might include respondeat superior (liability for the actions of an employee acting within the scope of employment), negligence in breach of a duty to protect employees, and negligence in hiring and retaining dangerous employees. 

Moreover, the Tenth Circuit held that Oklahoma’s workplace protection law does not conflict with any OSHA regulations.  But OSHA has also previously addressed guns at work on several occasions.
 
 There are many exemptions to the various workplace protection gun statutes.  Employers who want to ban handguns on their premises should carefully review all applicable state laws to determine whether or not they are exempt.  Covered employers, however, should consider redefining any workplace firearm ban so that it does not include parking lots and devising firearm policies that comply with applicable state laws.  Workplace protection gun laws are usually limited to locked vehicles on employee parking lots.  Thus, covered employers can often prohibit guns from company buildings and other areas.  Some statutes allow the employer to ban handguns from a secured or gated parking lot.  Under some statutes, employers can also designate certain parking lots for concealed handgun licensees, so long as the parking lot is reasonably close to the main parking lot.  Further, it is unclear to whether or not these statutes would require an employer to allow an employee to store (or travel with) a gun in a company-owned vehicle as opposed to the employee’s personal vehicle.  

 Covered employers should also train supervisors to prevent discrimination against employees who are concealed handgun licensees and teach managers to refrain from inquiring about gun ownership, including during the application process.  Employers should also educate managers and employees on how to recognize warning signs of workplace violence and how to handle violent workplace situations.

 If you have questions about workplace protection gun statutes or workplace violence in general, please contact our firm.

Beginning November 14, 2011, the National Labor Relations Board (NLRB) will now require most private employers to add a notice to the slew of other notices employers are already required to post by federal and state laws.  The problem is, most of the other required notices are required by the statute.  But the NLRB enacted this agency rule 76 years after the National Labor Relations Act (NLRA) was passed in 1935.

Yes, non-union private employers are subject to this new rule. The limited exceptions are generally for retail employers with less than $500,000 gross annual volume and non-retail employers who neither provide nor purchase goods or services above $50,000 per year.  Other miscellaneous and industry specific exceptions to this rule have varying gross annual volume requirements, e.g., private colleges and universities ($1 million), nursing homes ($100,000), health care facilities ($250,000), law firms ($250,000), and restaurants ($500,000).

The text of the notice is available here.  In short, it summarizes the rights of employees under the NLRA and what employers and unions may not do under the NLRA.  Failure to post this notice will be considered an unfair labor practice.  The NLRB expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a NLRB agent.  The NLRB also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.  If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.  But the NLRB has no authority to levy a fine against an employer for failing to post the notice.

The NLRB will have the notice available for employers to use by November 1st, which employers can request in writing or obtain from the NLRB’s website.  The NLRB also has published a fact sheet with additional information about this rule.

Employers can thank the NLRB for another required notice and more government regulation.  Critics of the rule argue that the NLRB does not have the authority to enact this rule and that the rule is, in essence, government-sponsored advertising that encourages employees to organize a union. 

If you have any questions about this new NLRB rule, please contact our firm.

A “cat’s paw” case, in the context of employment law, is a case in which the plaintiff argues that an individual – maybe an immediate supervisor – exerted discriminatory influence on the process that ultimately resulted in his or her termination.  In other words, the plaintiff claims that the ultimate decision-maker did not act with a discriminatory motive, but the decision-making was tainted by the discriminatory motive of someone else.

In Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the U.S. Supreme Court reviewed a “cat’s paw” case filed pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).  Staub, a member of the U.S. Army Reserve, claimed that his immediate supervisor was fairly open regarding her disdain for Staub’s military drill schedule that caused him to miss work.  She scheduled the plaintiff for additional shifts without notice to “pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves.” 

In January 2004, Staub’s supervisor placed him on a Corrective Action for purportedly violating a company rule requiring him to stay in his work area whenever he was not working with a patient.  In April 2004, Proctor Hospital’s vice president of human resources received complaints that Staub was frequently unavailable while at work.  The vice president of human resources subsequently terminated Staub’s employment, citing his violation of the Corrective Action. 

Staub sued the hospital for violation of USERRA’s anti-retaliation provision.  Staub’s lawsuit did not allege hostility on the part of the vice president of human resources, but instead on the part of his supervisor and others he claimed influenced the termination decision.

The U.S. Supreme Court concluded that the Court of Appeals erred in reversing a jury verdict in favor of Stab.  The Court noted that the vice president of human resources did not conduct a complete investigation of the allegations against Staub, and the only reason cited for his termination was violation of the Corrective Action that was put in place by his supervisor.

The Court explained that an employer is not liable for discrimination if it conducts a complete investigation, and reaches a termination decision unrelated to the discriminatory motive of the supervisor or other person who is not the final decision-maker.  It is thus important for the final decision-maker to conduct a complete and full investigation of each and every reason supporting, or leading to, an employee’s termination.

On Wednesday, June 22, 2011, the National Labor Relations Board (NLRB) published a series of proposed amendments to its rules and regulations governing employee representation during collective bargaining with their employer.  The proposals impact representation cases – cases initiated by employees, labor organizations, and employers petitioning the NLRB to conduct secret ballot elections to determine if employees wish to be represented for purposes of collective bargaining.  The Board investigates such petitions to determine if a question of representation exists and, if so, conducts secret ballot elections in order to answer the question. In cases where parties do not agree on terms of the election, the Board’s regional offices will conduct a pre-election hearing in order to determine if a question of representation exists, supervise the election, and, if necessary, conduct a post-election hearing to resolve objections. 

 The NLRB claims that, in furthering its “mission to establish procedures and safeguards necessary to insure the fair and free choice of representatives by employees,” the proposals will “remove unnecessary barriers to the fair and expeditious resolution of questions regarding representation.”  The proposed amendments are allegedly designed to “simplify representation-case procedures, create transparency and uniformity across regions, eliminate unnecessary litigation, and consolidate requests for Board review of pre- and post-election determinations.” 

 The proposed amendments are as follows:

 • Allow NLRB regional offices to deliver election petitions, election notices, and voter lists to employees via  email (or other electronic transmissions).  Previously, parties or the Board could not file or transmit  representation-case documents electronically.

 • Along with a copy of the petition, parties will receive: (1) a description of the NLRB representation case  procedures, (2) their rights and obligations, (3) and a “Statement of Position” form in order to assist the party  with identifying issues they may want to raise at the pre-election hearing.  Previously, the parties received little  compliance assistance.

 • The Regional Director may permit parties to complete the “Statement of Position” form at the pre-election  hearing with the assistance of the hearing officer.  Previously, the parties received little compliance assistance.

 • Pre-election hearings will be set to begin seven (7) days after a hearing notice is served.  Post-election   hearings will be set fourteen (14) days after the tally of the ballots, or as soon as practicable.  The Regional   Director will schedule the hearings.  Practices currently vary by Region, but those practices have longer   timeframes.

 • No later than the start of the hearing, before any other evidence is accepted, the parties must state their  positions.  Current procedures lack this stipulation, sometimes making it difficult for the parties to determine the  true nature of the dispute.

 • Parties challenging voter-eligibility can use a challenge procedure during the election as opposed to raising the  issue at the pre-election hearing.  Voter-eligibility issues involving less than twenty percent (20%) of the  bargaining unit are to be deferred until after the election.  Current procedures allow pre-election litigation to  resolve the eligibility issues.

 • No later than the opening of the pre-election hearing, the non-petitioning party (generally the employer) will  produce a preliminary voter list including (1) name, (2) work location, (3) shift, and (4) classification.   Currently, a list of voters is not provided to the petitioner (generally the union) and this change would make it  easier for unions to (among other things) identify and address eligibility issues before the election.

 • Parties will now be able to seek a review of all the Regional Director rulings through a single request after the  election and any pre-election request for review would be eliminated.  Previously, the parties had to request  Board review before the election or waive their right.  Such requests were rare and often led to a 25-30 day  delay in elections.

 • The Board has discretion to deny review of post-election rulings, allowing Regional Directors to make  prompt, final decisions.  Previously, the Board was required to decide most post-elections disputes.

 • Final voter lists will be produced in electronic form – when possible – within two days and include (1) names,  (2) home addresses, (3) phone numbers, and (4) email addresses.  Previous lists only included names and  home addresses and took up to seven days to be produced in paper form.

 • Representation-case procedures are consolidated into a single part of the regulations.  Previously,  procedures were described in three (3) different parts.

 Critics of the proposed amendments argue that the new measures are the NLRB’s attempt to favor unions after the unions lost a campaign to push “card check” legislation – the Employee Free Choice Act – through Congress in recent years.  Critics contend the new regulations will shorten the timeframe for unions to organize a workplace, expediting the organization process and elections.  Such a shortened timeframe may make it much more difficult for employers to effectively combat a union organizing campaign.   

 Those wishing to submit comments regarding the proposed amendments can do so by submitting them no later than August 22, 2011, at www.regulations.gov or by mail to:  Lester A. Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington D.C., 20570.

The full text of the proposed amendments can be found here.  The NLRB’s press release can be found here.  Employers with questions regarding the proposed amendments should contact our firm.

The long-awaited U.S. Supreme Court opinion of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011) was issued this week.  Justice Scalia delivered the opinion, which reversed the class certification of over 1.5 million current and former female employees of Wal-Mart Stores, Inc.  The class was certified based on claims that Wal-Mart discriminated against the plaintiffs on the basis of their sex by denying them equal pay and promotions in violation of Title VII of the Civil Rights Act of 1964. 

The Supreme Court’s main rationale for reversal of the Court of Appeals decision was that the claims among the class members did not share questions of law or fact common to the entire class.  The Court stated that the central inquiry in any employment discrimination claim is the reason why a particular employment decision was made.  As a class action, the case at hand constituted an attempt to sue regarding millions of employment decisions in one action. 

The Court noted, however, that the class may have still been properly certified if the plaintiffs succeeded in showing by significant proof that Wal-Mart operated under a general policy of discrimination.  Wal-Mart’s policy expressly forbids sexual discrimination.  Wal-Mart also imposes penalties for denials of equal employment opportunities.  The plaintiffs offered evidence through testimony by a sociological expert that Wal-Mart’s strong corporate culture made them vulnerable to gender bias, but he was unable to estimate whether 0.5 percent or 95 percent of employment decisions were made as a result of stereotyped thinking.  The Court found this proof insufficient to satisfy the “significant proof” requirement that Wal-Mart operated under a general policy of discrimination.

The plaintiffs also provided evidence of a corporate-wide policy utilized by Wal-Mart whereby discretionary authority over employment decisions is delegated to local supervisors and managers.  The Court discussed its holding in Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988), where it recognized that, in appropriate cases, giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory.  The disparate-impact theory results when a company has hiring and promotion criteria that are used by many different superiors which has a disparate impact on a particular class of people.  However, the plaintiffs merely showed the bare existence of delegated discretion among local supervisors, and failed to identify a specific employment practice that ties all of their 1.5 million claims together.  

The Court further held that the class claims for backpay were improperly certified as a Rule 23(b)(2) class.  Because backpay is an individualized claim for money damages that is specific to the claimant, the claims should have been certified as a Rule 23(b)(3) class.  Rule 23(b)(2) is reserved for situations when a single injunction or declaratory judgment would provide relief to every member of the class.  The Court rejected the Court of Appeals suggestion that these individual proceedings could be replaced with a “Trial by Formula.”  Certifying these claims for an entire class causes the damages sought for backpay to be incidental to the classwide injunction. 

Justices Ginsburg, Breyer, Sotomayor, and Kagan joined in an opinion, concurring in part and dissenting in part.  This opinion agreed that the class should not have been certified as a Rule 23(b)(2) class.  The opinion also stated the class could be certified as a 23(b)(3) class if the plaintiffs were able to show that the common class questions predominate over issues affecting individual members of the class and that a class action is superior to other types of adjudication.  These Justices wrote that the District Court’s identification of a common question among the class members should not have been disturbed and that the evidence presented properly gave rise to an inference of discrimination.  

In light of this opinion, employers should, similar to Wal-Mart, adopt and implement company policies and procedures that clearly prohibit unlawful discrimination.  Employers should also be cautious of company policies that delegate too much discretionary authority to local managers because these policies may inadvertently result in a disparate impact claim as a result of unconscious bias in employment decisions on the part of managers and supervisors.  Employers with questions about this decision should contact our firm.

On January 24, 2011, the U.S. Supreme Court issued its opinion in Thompson v. North American Stainless, L.P., 131 S.Ct. 863 (2011), concluding that a third-party retaliation claim may be brought under Title VII.

In 2003, North American Stainless (NAS) fired Eric Thompson three weeks after his fiancé, a co-worker at NAS, filed a sexual discrimination claim against NAS with the EEOC.  Thompson filed suit against NAS claiming that the company fired him in retaliation for his fiancé filing the charge.  The U.S. District Court granted NAS’s motion for summary judgment, concluding that Title VII protects only those who engage in protected activity.  The Sixth Circuit ultimately upheld the District Court’s ruling.  The Sixth Circuit determined that Thompson was not included in any class of persons who could assert a retaliation claim. 

The Supreme Court agreed to review the case.  Justice Scalia, writing for the Court, explained that Title VII’s anti-retaliation provision covered a broad range of conduct and prohibits any employer action that might dissuade a reasonable worker from supporting a charge of discrimination.  The Court thus departed from existing law in some of the Circuit Courts of Appeal and determined that Thompson was entitled to maintain a Title VII claim. 

NAS argued that recognizing third-party retaliation claims would lead to almost impossible employment decisions—an employer would be at risk any time it fires or demotes an employee with any connection to a co-worker who has engaged in some form of protected activity.  In addressing NAS’s argument, the Court declined to identify a fixed-class of relationships for which third-party reprisals would be unlawful, but opined that firing a close family member would likely always be unlawful, but “a milder reprisal on a mere acquaintance [would] almost never [be].”  The Court, in its reluctance to adopt bright line rules, concluded that acts of alleged retaliation must be considered based on the particular circumstances.

NAS was correct that the Court’s decision expands the ever-expanding gray area for employers.  An employer’s safety lies in three areas: (1) was the decision-maker aware of the protected activity?  (2) was the decision-maker aware of the relationship between the employees?  (3) are the reasons for the demotion or termination substantiated and well-documented?

On May 26th, the U.S. Supreme Court issued its opinion in Chamber of Commerce of the U.S. v. Whiting, 563 U.S. ___ (2011), upholding the Legal Arizona Workers Act.  The Act requires employers doing business in the state of Arizona to use the federal government’s E-Verify system to determine the work authorization of employees.  The Act also instructs courts to suspend or revoke the business license—including articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in Arizona—of employers in Arizona who knowingly or willingly employ unauthorized aliens.
 
The U.S. Chamber of Commerce and other business and civil right organizations challenged the Act, arguing that the provisions were preempted by federal law.  The Court found Arizona’s law was crafted to closely track the federal Immigration Reform and Control Act (IRCA) by (1) using the federal government’s definitions of “unauthorized alien” and “knowingly,” (2) providing that state investigators must verify the work authorization of an allegedly unauthorized alien with the federal government and consider only the federal government’s determination, (3) providing an employer with the same affirmative defense for a good-faith compliance with the I-9 process as does the federal law, and (4) according an employer with a rebuttable presumption of compliance when they use the E-Verify system.  The Supreme Court, in a 5-3 ruling, found the Arizona law was not preempted by federal law and upheld the Act.

In light of recent legislative activity to implement similar measures in Arkansas (HB2009), this case should be of particular interest to Arkansas employers.  The Arkansas bill mirrored the Arizona statute and would have required the suspension or revocation of a business license for any Arkansas employer who knowingly employs an unauthorized alien.  The bill also mandated the use of the E-Verify system.  Although the bill died in committee, Arkansas state lawmakers may reintroduce it in the next legislative session given the Supreme Court’s approval of the Arizona statute.

Some employers oppose such state statutes, arguing they lead to additional government regulation and increase the probability of national origin discrimination complaints.  Other employers oppose such state statutes because they desire to play fast and loose with IRCA’s requirements.  Some employers, however, support such state statutes, arguing that such mandates level the playing field for all employers.  Either way, Arkansas employers should watch for this controversial bill to reappear.  Employers with questions about this decision should contact our firm.

On May 9th, the U.S. Department of Labor announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed.  Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers.  Glossary, contact information and materials about wage laws are easily accessible through links to the Web pages of the department’s Wage and Hour Division.  Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.  According to the DOL, this new technology “is significant because, instead of relying on their employers’ records, workers now can keep their own records.  This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.”  The free app is currently compatible with the iPhone and iPod Touch.  The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

From an employer’s perspective, this application can be very problematic.  An employer certainly does not want an alternative set of records documenting different hours worked by the employee.  Rather, an employer should be proactive and communicate to its employees that the employer desires accurate time records, it is the employee’s responsibility to accurately create his or her time records for the employer, and the employee should immediately notify the employer if the employee believes that there is any discrepancy in his or her time records.  Moreover, if the employee’s smartphone is company-owned, and the company has previously banned personal applications, then the company may be able to also prohibit this app.  On the other hand, if the company has never before regulated the employee’s use of the company-owned smartphone, then disciplining an employee for using this app could be construed as retaliation. 

The DOL’s press release about its new app can be found here:  http://www.dol.gov/opa/media/press/whd/WHD20110686.htm

Employers should consult legal counsel when necessary regarding this application and other wage and hour concerns.

On March 24th, the EEOC’s final regulations for the ADA Amendments Act (“ADAAA”) were made public. The EEOC originally proposed its implementing regulations (the Notice of Proposed Rulemaking or “NPRM”) for the ADAAA on September 23, 2009.  After receiving hundreds of comments and conducting several public meetings, the EEOC revised its regulations. According to the EEOC, the“final regulations modify or remove language that groups representing employer or disability interests had found confusing or had interpreted in a manner not intended by the EEOC.”  The EEOC provides the following examples of how the final regulations differ from the NPRM:   

• Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities (as had been done in the NPRM), the final regulations provide the nine rules of construction to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability. The regulations also provide examples of impairments that should easily be concluded to be disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.

• Language in the NPRM describing how to demonstrate that an individual is substantially limited in “working” has been deleted from the final regulations and moved to the appendix (consistent with how other major life activities are addressed). The final regulations also retain the existing familiar language of “class or broad range of jobs” rather than introducing a new term, and they provide examples of individuals who could be considered substantially limited in working.

• The final regulations retain the concepts of “condition, manner, or duration” that the NPRM had proposed to delete and explain that while consideration of these factors may be unnecessary to determine whether an impairment substantially limits a major life activity, they may be relevant in certain cases.

At first glance, many of the revisions contained in the ADAAA’s final regulations appear to be somewhat favorable to employers and the ADA’s other covered entities.  Nonetheless, there is little dispute that the ADAAA and its final regulations have made and will to continue to make defending ADA claims more difficult.  Employers and other covered entities under the ADA should review their policies and practices to ensure compliance with the ADAAA and its final regulations.   

The EEOC’s press release is available here:  http://www.eeoc.gov/eeoc/newsroom/release/3-24-11.cfm

The EEOC’s final regulations for the ADAAA and other documents relating to the ADAAA and its final regulations are available here:  http://www.eeoc.gov/laws/statutes/adaaa_info.cfm