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Signing of the Genetic Information Nondiscrimination Act of 2008
- In September, Congress passed and President George W. Bush signed the ADA Amendments Act of 2008 (ADAAA), to become effective Jan. 1, 2009. In the ADAAA, Congress rejected the holdings of two Supreme Court decisions that narrowed the definition of "disability" (Sutton v. United Airlines, Inc., 527 US 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 US 184 (2002)), thus eliminating protection for many individuals with disabilities whom Congress had intended to protect.
- The ADAAA expanded coverage and protection in several ways: First, the act lists bodily functions, which the courts should now take into account when determining whether an individual has an impairment of a major life activity. Second, the act additionally makes clear that individuals with even temporary disabilities may assert coverage if their disability is severe enough. Finally, the ADAAA states that the evaluation of whether an individual's impairment substantially limits a major life activity should be made without regard to mitigating measures (except for ordinary eyeglasses and contact lenses).
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Wynton Marsalis PSAs
- In December, headquarters and Washington Field Office staff moved to a new building, One NoMa Station, 131 M Street, N.E. in a developing part of Washington, D.C. The move to a lower cost area and for less space, was projected to save $800,000 annually. The EEOC has a 10-year lease for this space, which is filled with iconic photographs documenting the civil rights movement.
Notable Supreme Court Decisions
- The Supreme Court issued four decisions affecting different aspects of the ADEA: what constitutes a charge-filing; clarifying that federal employees are protected from retaliation under the ADEA; the employer bears the burdens of both production and persuasion in a disparate impact claim; and a disability retirement plan discriminating on the basis of pension eligibility does not violate the ADEA.
Significant Appellate Decisions
- In EEOC v. Federal Express Corp., 558 F.3d 842 (9th Cir. 2009), the Ninth Circuit, affirmed a district court order enforcing an EEOC subpoena, stating that as long as jurisdiction is not "plainly lacking," a subpoena should be enforced. Applying that standard, and rejecting a contrary decision by the Fifth Circuit in EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997), the court held that the EEOC retains the authority to issue a subpoena on a charge even after the charging party has instituted a private action based on the charge.
Notable EEOC Trial Victories
- In EEOC v. Lake Ridge Academy (N.D. Ohio Nov. 7, 2008), a jury awarded $600,000 to a former employee who was fired after he questioned whether female teachers were being paid less than male teachers -- a violation of Title VII and the EPA. While the jury was deliberating on punitive damages, the parties settled the case for $950,000, including $40,000 in costs to the EEOC.
Notable EEOC Resolutions
- The Commission resolved EEOC v. Walgreen Co. (S.D. Ill. Mar. 24, 2008), a nationwide race discrimination lawsuit, for over $24.5 million for a class of thousands of African American employees who were denied promotion, compensation and assignment because of their race. This was one of the largest-ever monetary settlements in a race case by the EEOC.
- EEOC v. University of Phoenix, Inc., and Apollo Group, Inc. (D. Ariz. Nov. 7, 2008) settled for $1.875 million for 52 current and former enrollment counselors who were discriminated against because of their religion (non-members of the Church of Jesus Christ of Latter Day Saints [LDS] known also as Mormons). The EEOC alleged that defendant provided LDS counselors better leads on potential students, promoted LDS counselors over more qualified non-LDS counselors, granted LDS counselors tuition waivers and retaliated against non-LDS counselors who complained of religious discrimination by transferring them or discharging them.
- EEOC v. Kovacevich "5" Farms, A Partnership (E.D. Cal. Dec. 1, 2008) settled for $1.68 million for a class of female farmworker applicants who were denied hire because of their gender. The EEOC alleged that from 1998 to 2003, the company hired approximately 300 farmworkers each year, all of whom were men. In addition to the monetary relief, the defendant agreed to set goals for hiring females in all available positions during the harvest season and to make reasonable efforts to ensure that females comprised at least one-third of the workforce over the course of the season.
Significant EEOC Guidance
- In support of President Bush's New Freedom Initiative, the EEOC published several documents to help individuals with disabilities enter and remain in the workforce:
- technical assistance documents, Q&A: Promoting Employment of Individuals with Disabilities in the Federal Workforce; Understanding Your Employment Rights Under the Americans with Disabilities Act (ADA): A Guide for Veterans; and Veterans and the ADA: A Guide for Employers
- a fact sheet, The ADA: Applying Performance and Conduct Standards to Employees with Disabilities."
- Compliance Manual Section 12: Religious Discrimination, along with two, plain-English companion documents, Best Practices for Eradicating Religious Discrimination in the Workplace and Questions and Answers: Religious Discrimination in the Workplace.
- The Commission issued a report by the Federal Hispanic Work Group examining barriers in federal sector employment for Hispanic applicants and employees and offering recommendations with respect to these barriers.
- The agency also issued a comprehensive report addressing strategies to reverse the declining participation rate of federal employees with targeted disabilities.
- In light of the Supreme Court's holding in Smith v. City of Jackson, the EEOC published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to update the ADEA regulations.