|
|||||||||
|
EMPLOYER CLIENT ALERT: October 2008 Disability Discrimination Employers should be aware that on September 25, 2008, the House of Representatives approved the ADA Amendments Act, a major civil rights bill that expands protections against workplace discrimination put in place in 1990 under the Americans with Disabilities Act. The measure is expected to be signed by President Bush without delay. The legislation is intended to overturn four controversial United States Supreme Court decisions that narrowly construed the original ADA‘s definition of ‘disability.’ If signed, the new Act will prohibit consideration of measures taken to overcome the effects of a person’s condition (such as medication, prosthetic, and assistive devices) in the analysis of whether such a person is “substantially limited in a major life activity.” In addition, the ADA Amendments Act provides that in determining whether someone is “substantially limited in a major life activity,” a ‘major life activity’ would now include major bodily functions, such as brain and neurological functions. This requires consideration of activities that had previously been excluded from consideration by some courts. Finally, the new Act makes it clear that if treated adversely based on an actual or perceived impairment, an employee may sue regardless of whether the disability actually limits a major life activity or is the employee perceived to be limited in a major life activity. Claims based on impairments that are “transitory and minor,” however, will not be actionable. The Bottom Line: (1) Employers should document poor performance by all employees, especially disabled employees, so the Employer can prove that the termination was due to poor performance, and not due to a disability; (2) Employers should also attempt to reasonably accommodate an employee's disability (and document said attempts) -- especially if the disability was the cause of the poor job performance. If you have any questions about any of the issues raised in this Employer Alert, or any employment and labor issue or concern, please call Thomas Ryan, Esq. or Linda Day, Esq. of Laddey, Clark & Ryan’s Employment and Labor Practice Group at (973) 729-1880. If you do not wish to receive updates concerning developments in the law which could affect your business in the future, please indicate your preference below, and we will take you off our e-mail list. The Employment and Labor Practice Group
|
|||||||||
