Usually I like to focus on current issues, but just as I emphasize to clients to be proactive, so, too, it's good for lawyers to think proactively about issues that might affect people in the future. One of those increasingly likely concerns are classes of employees that will receive protection under the law.
ADA Amendments
On September 23, 2009, the Equal Employment Opportunity Commission issued proposed regulations under the ADA Amendments Act of 2008 (ADAAA) which was effective January 1, 2009. The period for submitting comments to the proposed regulations has expired. The proposed regulations leave no doubt that vast numbers of heretofore "non-disabled" employees and applicants will now fall under the protection of the ADAAA. An individual is now disabled if any one of an expansive number of "major life activities" is limited or restricted – and not necessarily "significantly" limited. "Mitigating measures" such as medication which controls high blood pressure, high cholesterol or diabetes or prosthetic devices or hearing aids can no longer be considered when making this determination. Further, the proposed regulations clarify that individuals claiming to be protected because they were "regarded as" being disabled no longer have to prove that an employer regarded them as substantially limited in a major life activity. The foregoing major changes to federal disability law will greatly increase the number of employees (and applicants for employment) entitled
to protection under the ADAAA.
GINA
The employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) became effective on November 21, 2009. Employers with 15 or more employees now are prohibited from discriminating against employees or applicants based upon genetics or genetic information. Under GINA, employers are prohibited from using genetic information in making employment decisions, intentionally acquiring genetic information or disclosing genetic information. "Genetic information" is defi ned expansively under GINA and includes not only information about an employee's genetic tests and genetic tests of family members, but also includes information related
to family medical history. Therefore, information that is routinely shared at some workplaces by employees regarding family member illnesses/medical conditions may subsequently give rise to a claim of genetic discrimination should the employee subsequently be laid off or terminated. These claims will no doubt be included in employment discrimination lawsuits.
Sexual Orientation and Gender Identity
Federal legislation prohibiting discrimination on the basis of sexual orientation and gender identity likely will pass this year. Proposed federal legislation would add sexual orientation and gender identity or expression to the list of protected
classes under Title VII of the Civil Rights Act of 1964, as amended, and would apply to employers with 15 or more employees.
Breastfeeders
Proposed federal legislation, dubbed the Breastfeeding Promotion Act of 2009, would add lactating mothers to the list of protected classes under Title VII of the Civil Rights Act of 1964, as amended. The proposed legislation would make breastfeeding
and expressing breast milk protected activities. Additionally, the proposed legislation requires employers to provide lactating mothers reasonable break times to express milk and a private place, other than a bathroom, to express milk. Versions of proposed federal health care also contain language requiring
breaks for lactating mothers. Similarly, about half of the states have passed or proposed legislation encouraging or requiring employers to provide breaks to lactating mothers.
With so many protected classes, it may be increasingly difficult to find somebody who isn't protected in some manner. From a practical policy perspective, I think this moves us closer and closer to a 'just cause' standard when considering discharging an employee, and an increasingly 'inflexible' labor market.
