Tag Archives: Employment

Good News for Employers-Amendments to Oklahoma’s Anti-Discrimination Law go into Effect November 1

12 Wednesday Oct 2011

Posted by in Discrimination

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Amendments to Oklahoma’s Anti-Discrimination Act (OADA), many of which are favorable to employers, are set to go into effect November 1, 2011. The OADA amendments, will, most significantly, abrogate common law tort liability for discrimination claims, allowed by the Oklahoma Supreme Court under the Burk tort theory. This should help reduce exposure and uncertainty on the part of employers in defending discrimination claims. Although some types of employment discrimination claims brought under federal law may still carry the potential for compensatory and punitive damages, the amendments will preclude plaintiffs from engrafting on their claims allegations seeking compensatory and punitive damages under Oklahoma common law.

The amendments will also change the law in a number of other respects, including:

  • The OADA’s statutory remedies are exclusive, and all common law remedies are abrogated and replaced with the specific statutory remedies.
  • Discrimination on the basis of “genetic information” has been added.
  • The definition of “employer” exclude individuals and allows suits only against legal entities, institutions or organizations.
  • The definition of “employee” excludes independent contractors.
  • Applicants for employment who are discriminated against are given a cause of action.
  • Employers of any size are be subject suit.
  • Employers are entitled to raise all defenses available under the applicable federal statutes.
  • Aggrieved parties must file a charge of discrimination within 180 days from the last date of alleged discrimination and exhaust available administrative remedies, and must file suit within 90 days of receiving a notice of right to sue.
  • Remedies are limited to injunctive relief, such as an order of reinstatement of a discharged employee or requiring the hiring of the applicant, back pay, and “an additional amount as liquidated damages”.
  • Interim earnings or “amounts earnable with reasonable diligence” will reduce back pay.
  • If there are “legitimate reasons” other than discrimination for the action taken by the employer, the individual is not entitled to any relief.
  • The court “may” allow either a prevailing plaintiff or defendant a “reasonable attorney” fee.”

As noted, most of the amendments are helpful to employers, particularly the abrogation of common law remedies. The effect may be for aggrieved individuals to go back to exclusively pursuing federal statutory remedies for various types of employment discrimination.

EEOC Issues Final Regulations to Implement ADA Amendments Act of 2008

04 Monday Apr 2011

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On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the ADA Amendments Act of 2008 (ADAAA). The final regulations are published in the Federal Register and will become effective on May 24, 2011.

Background
The ADAAA was signed into law by President George W. Bush on September 25, 2008, and went into effect January 1, 2009. The EEOC issued a Notice of Proposed Rulemaking (“NPRM”) in September 2009, to issue regulations interpreting the ADAAA. The EEOC thereafter received more than 600 comments to the NPRM. The final regulations are the EEOC’s official interpretation and guide to the ADAAA amendments after considering the public comments received on the NPRM.

The goal of the ADAAA, as confirmed by the final regulations, expands the definition of “disability” to be construed “to the maximum extent permitted by the terms of the ADA.” The ADAAA alters the current legal landscape of interpreting the ADA by rejecting the holdings of several U.S. Supreme Court decisions and rejecting portions of the EEOC’s prior ADA regulations. “The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”

Although certainly not an exhaustive list, here is a brief overview of a few points covered by the final regulations:

Expanded Coverage of Disabled Individuals
The ADAAA retains the ADA’s basic definition of “disability”-(1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment. However, the final regulations state that “[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.” Thus, the EEOC believes the primary focus of an ADA claim should be on the employer’s conduct, and not in determining whether the employee is “disabled.”

Moreover, although an individual could be covered by the ADA under one or more of the above-stated prongs, the final regulations clarify that the “regarded as” prong should be the primary means of establishing coverage in ADA cases that do not involve a claim for lack of reasonable accommodations. Accordingly, the final regulations specifically state that where an employee does not require reasonable accommodations, claims can only proceed under the “regarded as” prong of the definition of “disability.”

Impairment
In an attempt to clarify the definition of “disability” and provide guidance to employers, employees, and the courts, the NPRM contained a list of impairments that would “consistently meet” the definition of “disability,” along with a list that might meet the definition, and a third list that would not likely meet the definition. The EEOC was inundated with negative comments regarding the lists because of the ADA’s prior approach of individualized assessments.

In response, the final regulations retained only the first list-disabilities that will “consistently meet” the definition of disabled under the ADA. The non-exhaustive list of disorders that “will, at a minimum, substantially limit the major life activities” includes: deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, Human Immunodeficiency Virus (HIV), multiple sclerosis, muscular dystrophy, bipolar disorder, post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD), major depressive disorder, and schizophrenia. Although not exhaustive, the inclusion of this list means that virtually every individual suffering from an above-stated illness is “disabled” under the ADA.

Major Life Activities
The NPRM sought to expand the definition of “major life activities” through two non-exhaustive lists. The first list included activities such as caring for oneself, seeing, hearing, eating, sleeping, walking, sitting, standing, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, interacting with others, and working. The second list included major bodily functions of the immune system, special sense organs, normal cell growth, digestive, bladder, and musculoskeletal functions. Both lists were adopted in the final regulations and contain additional activities not listed here, but can be found in Section 1630.2(i) of the ADA.

Moreover, the final regulations adopted language that effectively overrules Toyota Mfg. Inc. v. Williams, 534 U.S. 184 (2002). In Toyota, the United States Supreme Court held that when determining whether an activity qualified as a “major life activity,” the activity must have been of “central importance to most people’s daily lives.” Id. at 187. The ADA no longer requires such a finding before determining whether an activity by an individual qualifies as a “major life activity.” Although a new limitation is not espoused, this language broadens what will be considered a “major life activity.”

Substantially Limits-Nine Rules of Construction
The NPRM sought to define “substantially limits” and lower the threshold for meeting the requirement. Following the notice and comment period, the final regulations do not define the term “substantially limits,” but the comments indicate that it should be a low threshold to meet. The final regulations state that “’substantially limits’ is a lower threshold than ‘prevents’ or ‘severely or significantly restricts,’ as prior Supreme Court decisions and the EEOC regulations had defined the term.” Thus the threshold for meeting “substantially limits” has been lowered.

The final regulations include nine rules of construction to be applied when determining whether an impairment “substantially limits” a major life activity:

1. The definition of “‘substantially limits’” shall be construed broadly in favor of ‘expansive coverage.’”

2. An impairment does not need to prevent, or significant or severely restrict, the individual from performing a major life function to be considered significantly limiting. Nonetheless, not every impairment is substantially limiting.

3. “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations, not whether an individual’s impairment ‘substantially limits’ a major life activity.”

4. An individualized assessment is required for each individual-however, the standard should be lower than has previously been applied.

5. “The comparison of an individual’s performance of a major life activity to the performance of the same…activity by most people in the general population” should not ordinarily require scientific, medical, or statistical analysis.

6. The ameliorative effects of mitigating measures (other than glasses or contacts) should not be considered when determining whether an impairment substantially limits a major life activity.

7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

8. “An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.”

9. Short-term impairments (lasting less than six months), can be considered “substantially limiting.”

Although these factors may guide courts in their assessment of “substantially limits,” in light of the rules of construction explained by the final regulations, such an assessment may “often be unnecessary” when analyzing “whether an impairment ‘substantially limits’ a major life activity.”

Conclusion
The final regulations alter the current landscape of the ADA and ultimately allow for more individuals to qualify as “disabled” under the ADA. Employers should be aware of the changes made by the ADAAA to better accommodate employees who are disabled. Although this is not an exhaustive review, we will keep you posted on any major court decisions interpreting the amended ADA.

Court of Appeals finds violation of conflict of interest policy insufficient to deny unemployment compensation

21 Monday Mar 2011

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The Oklahoma Court of Appeals very recently decided the case of Evans v. Oklahoma Employment Security Commission, 2011 OK CIV APP 9, in which it found that the Chief of the Consumer Health Service for the state Department of Health, who was terminated for a conflict of interest, was not terminated for “misconduct” and was therefore entitled to unemployment compensation benefits.

In Evans, the claimant was responsible for, among other things, overseeing the Oklahoma tattoo industry. His son happened to own a tattoo business. While the claimant testified that he disclosed this fact to his former supervisor, he had not told his current supervisor. The new supervisor testified that the claimant was terminated pursuant to the Department’s conflict of interest policy. The evidence showed, among other things, that the claimant ordered an employee to inspect his son’s establishment on the day that Oklahoma started regulating the tattoo industry, so his son’s business could be the first licensed tattoo parlor in Oklahoma. On another occasion, the claimant directed that one of his employees verify that one of his son’s competitors was in compliance with state regulations, because one of his son’s employees complained that the competitor’s business was not more than 1,000 feet from a school. This was after the employee had already once measured the distance and the claimant directed her to measure again. On another occasion, after a complaint by one of his son’s employees, the claimant directed one of his employees to investigate whether one of his son’s competitors was operating illegally on the weekend. When this complaint could not be verified, the claimant went to the business and told the owner he could not obtain a license because he was located too close to a church and that he could also be fined.

There was also evidence that the claimant’s supervisor discussed conflicts of interest in a meeting attended by the claimant and even discussed the form to be filled out, and that the claimant filled the form out without disclosing any conflict, claiming it was simply a “big mistake.” Based upon the evidence, the OESC denied benefits. The Board of Review affirmed this denial on appeal. The claimant appealed to the district court, which reversed, finding the evidence insufficient to establish that the claimant had engaged in “misconduct” associated with his work so as to disqualify him from receiving unemployment compensation. On appeal, the Court of Appeals affirmed the district court.

The Court found that the conflict of interest policy discussed in the testimony before the OESC was not in the record, and so the Court could not determine whether it was reasonable, since, “An employer may not, merely by passing a rule, disqualify as misconduct actions which, absent the rule, would not meet the statutory definition. “ Accordingly, the Court found the OESC failed to meet its burden to establish that the violation of the policy alone could disqualify the claimant. The Court further held that the claimant was not otherwise guilty of misconduct, which “may be found where an employee manifests an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” The Court found that the evidence established that the claimant’s failure to disclose the conflict was out of “oversight or error” and that he assumed everyone knew his son was a tattoo artist. The Court also found that after the employer brought the issues to the claimant’s attention and began to investigate, the claimant took a “hands off” approach and did not involve himself in duties relating to tattoo businesses. The Court further found that the actions that had been taken by the claimant toward tattoo businesses were consistent with his duties, and that there was no evidence that he acted unfairly toward any business. The Court noted that the OESC did actually prove a conflict, but only an appearance of a conflict, which was insufficient to establish misconduct. The Court also seemed to be influenced by the fact that the claimant’s supervisor had been unaware of the claimant’s activities (which apparently caused the Court to conclude there was a lack of diligence or supervision on his part) and that it took the supervisor several weeks to complete an investigation into the claimant’s activities and terminate his employment.

This case is a good reminder that employers should be prepared with all available documentation and evidence when defending unemployment compensation proceedings, as they are often handled much like trials, with the proffered testimony and evidence admitted much like trial evidence. If evidence is not admitted or included in the record, it could lead to a bad result. Also, employers should clearly articulate and document their employment policies, ensure that employees are aware of such policies by having them acknowledge in writing their receipt of the policies, enforce and follow their policies, and take prompt and appropriate action in the case of violations. A well documented file may avoid the type of result that occurred in Evans.

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