On May 21, Congress passed and President George W. Bush signed the Genetic Information Nondiscrimination Act of 2008 (GINA) into law.
The act prohibits employers from using individuals' genetic information when making hiring, firing, job placement, or promotion decisions. Senator Ted Kennedy described the legislation as the "first major civil rights bill of the new century."
The EEOC was given responsibility for enforcing GINA's Title II, which covers employment.
- 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).
The Office of Communications and Legislative Affairs produced two PSAs featuring famed musician Wynton Marsalis. The PSAs played on numerous television stations and were used in outreach sessions for the next two years.
- 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:
- 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.
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