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MARCH 2003 I. LEGISLATIVE/REGULATORY
UPDATE Pending Bills To Watch For
Federal job discrimination complaints filed by employees against private employers jumped more than 4% in 2002. The Equal Employment Opportunity Commission (“EEOC”) stated that complaints increased to 84,442 during 2002, up from 80,840 the previous year. Complaints in 2002 reached the highest level since 1995, when 87,529 were filed. Religious complaints increased 21%, age complaints were up 14.5%, and national origin complaints rose 13%. Allegations of race and gender discrimination accounted for the majority of the complaints, at 35% and 30%, respectively. The industries generating the most complaints were retail, food services, and manufacturing. The EEOC resolved 95,222 cases last year, a 5% increase from 2001. Complainants recovered $310.5 million in compensation. The average time to process a complaint declined 6% to 171 days. The backlog of complaints awaiting investigation dropped 10% to 29,041.
The Equal Employment Opportunity Commission (“EEOC”) has released a new Americans with Disabilities Act (“ADA”) guidance memorandum advising employers to, at a minimum, consider telecommuting as a reasonable accommodation option for certain individuals with disabilities, even if the employer does not have a telecommuting program in place for other employees. The ADA requires covered employers to provide a reasonable accommodation to qualified individuals with disabilities, unless such accommodation would cause an undue hardship, i.e., significant difficulty or expense. Whether this reasonable accommodation obligation requires an employer to permit an individual to telecommute is an issue that had not been previously addressed by the EEOC. The EEOC notes that the fact that adjustments
may have to be made in the way an employee is supervised, or that there
would be an increased burden
on communications
with co-workers or others is not, by itself, sufficient to justify failing
to consider telecommuting as an accommodation option. However, employers
are not
required to adopt telecommuting where an equally effective alternative
exists; if it would otherwise create an undue hardship or expense; or
if it would
necessitate the lowering of production standards. The EEOC’s full opinion may be found at http://www.eeoc.gov/facts/telework.html. II. JUDICIAL UPDATE State Disability Rules Upheld The California Supreme Court upheld California’s broad interpretation of what it means to be disabled and entitled to protection against discrimination at work; a ruling that could open thousands of legal cases for re-examination. The ruling in Colmenares v. Braemar Country Club Inc. affirms that California’s definition of disability goes far beyond federal guidelines, which require that an employee be substantially limited in a life activity. California’s statute omits that qualification, therefore, individuals with any condition that affects a life or work function can be considered disabled. The Colmenares decision now focuses the argument on whether an accommodation is reasonable and whether the employee can perform the job. Based upon the Supreme Court’s decision, Francisco Colmenares’ (the “Employee”) disability discrimination case will be reconsidered. Because of a 1981 back injury, the Employee’s physician stated he could perform only light work. In 1997, however, a supervisor reassigned the Employee to a job involving heavy labor, and when he was unable to do the work, the Braemar Country Club (“the Employer”) terminated him. The Employee – who worked for the Employer for 25 years – sued, claiming the Employer failed to accommodate his disability. A lower court ruled that the Employee was not disabled because he did not fit the federal definition of being “substantially limited in a major life activity.” The California Supreme Court ruled, however, that the Employee’s disability should have been considered under the less restrictive language of California’s Fair Housing and Employment Act, even though that language was not clear until a 2001 amendment. This case is important because the Supreme Court retroactively applied the 2001 amendment to a 1997 claim.
The U.S. Supreme Court agreed to consider whether employers that refuse to rehire rehabilitated drug addicts can be sued under the Americans With Disabilities Act (“ADA”). The case tests employment policies that make lifetime bans against employees who break rules, such as using drugs, then want a second chance at a job after receiving addiction treatment. In Raytheon Co. v. Hernandez,
the Court will review the treatment of a man who lost his job as a technician
working on missile systems after he tested positive for cocaine. Joel
Hernandez (the “Employee”) tried to get rehired at Hughes
Missile Systems, now part of Raytheon Co. (the “Employer”),
but was rejected because the Employer does not hire back employees terminated
for violation of misconduct rules. The Employee spent 25 years with the
Employer until the Employer told him he had to quit or have his employment
terminated because of positive drug test results. A divided panel of the
Ninth U.S. Circuit Court of Appeals ruled that the Employer’s policy
violated the ADA and held that the policy discriminates against employees
who have been successfully rehabilitated and are thus protected by the
ADA.
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