• Time for a Change in the Employment Litigation Arena
  • January 9, 2009 | Author: Carly E. Chu
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • On January 20, 2009, Barack Obama (D) will be inaugurated as the forty-fourth President of the United States. During his campaign, President-elect Obama stressed that it was “time for a change” and indeed there will be change with his presidency, especially in the employment litigation arena. Several new acts affecting current employment laws have already passed and will become effective during President-elect Obama’s first year. Additionally, President-elect Obama has indicated support for other controversial legislative bills that, if passed, could have a substantial impact on the laws that govern our workplace.

    Both the 2008 Americans with Disabilities Act Amendments Act and the Genetic Information Nondiscrimination Act have already been approved and will become effective in 2009.

    • The 2008 Americans with Disabilities Act Amendments Act (“ADAAA”) significantly amends the Americans with Disabilities Act of 1990. According to the legislative findings, the purpose of the ADAAA is “to restore the intent and protections of the Americans with Disabilities Act of 1990.” The ADAAA will broaden the meaning of being “disabled,” including an expanded definition of “regarded as” and “substantially limits.” Further, the ADAAA does not allow courts to consider mitigating measures, except for eyeglasses or contact lenses, when determining whether an impairment substantially limits a major life activity. Finally, among other changes, the ADAAA annunciates a list of “major life activities” which include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” The ADAAA will become effective January 1, 2009.
    • The Genetic Information Nondiscrimination Act (“GINA”) makes it an unlawful employment practice for an employer to discriminate against an employee based on the employee’s genetic information. Specifically, GINA makes it unlawful for an employer to take an adverse employment action against an applicant or employee because of information about the individual’s genetic tests, the genetic tests of family members of the individual, or the manifestation of a disease or disorder in family members of such individual. Additionally, employers may not request, require, or purchase genetic information with respect to an employee or an employee’s family member, except in limited circumstances. Regulations interpreting GINA will be available May, 2009 and the employment portion of the law will take effect November, 2009.

    Although not currently law, President-elect Obama has indicated he would approve both the Healthy Families Act and the Lilly Ledbetter Fair Pay Act if passed by Congress.

    • The Healthy Families Act (“HFA”) would require employers with 15 or more employees to provide 7 paid sick leave days to full-time employees working 30 hours or more per week. Additionally, employers would be required to provide a pro-rata amount of paid sick leave days to part-time employees working less than 30 hours per week on a year round basis or 1,500 hours throughout the year. Any paid sick leave accrued during a year would carry over from one year to the next. Employers would be required to provide this leave in addition to their current paid sick leave policies. This benefit could be used for an employee’s sickness, or the sickness of a child, parent, family member, or anyone “whose close association with the employee is the equivalent of a family relationship.” The HFA was introduced March 15, 2007 and has been referred to the Committee on Health, Education, Labor, and Pensions, but there has been no recent activity. Ohio recently proposed similar legislation, the Ohio Healthy Families Act, slated to be on the ballot this past November, 2008. However, on September 4, 2008 Ohio’s HFA was removed from the ballot because, after negotiations, Governor Strickland and Senator Sherrod Brown have agreed to work towards the HFA at the federal level rather than campaign for Ohio’s HFA.
    • The Lilly Ledbetter Fair Pay Act (“Ledbetter Act”) would nullify a 2007 Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., in which the Court strictly enforced the 180 day statute of limitations for equal pay claims brought pursuant to Title VII. In Ledbetter, the plaintiff attempted to argue that, although the discriminatory decisions that affected her pay were made more than 180 days prior, Goodyear’s act of paying her during those 180 days was itself an act of discrimination. However, the U.S. Supreme Court rejected this argument, holding that “[s]tatutes of limitations serve a policy of repose” for employers and holding employers liable for allegedly discriminatory decisions, which could potentially date back many years, destroys the effectiveness of the 180 day statute of limitations. If enacted, the Ledbetter Act would overturn Ledbetter by amending Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act to impose a new “paycheck rule” where each paycheck reflecting a discriminatory decision restarts the statute of limitations. In other words, a discriminatory compensation decision occurs each time compensation is paid pursuant to the discriminatory compensation decision, effectively eliminating the statute of limitations. Further, the Act would expand the class of people who could sue by allowing anyone who was “affected” by the alleged improper action to sue, meaning children or heirs would have standing.

    While neither of these bills is currently enacted, if the bills do become the law, there could be a large impact on your workplace.