Exactly What is a Disability?

December 13, 2010

(Published in New Hampshire Business Review, December 2010)

EEOC is Busy at Work Enforcing Discrimination Laws and Broadening its Reach

Diane is the Human Resource Director for a medium sized company with about two hundred employees.  Since she is an HR department of one, she doesn’t always have time to stay up to date on changes in the law and is very wary about making decisions that might impact employees in protected classes—especially the disabled.  Are there any recent developments in this area about which Diane should be concerned? 

Two administrative agencies investigate employment discrimination claims involving New Hampshire employees.  The Equal Employment Opportunity Commission (“EEOC”) addresses discrimination complaints under federal law based on race, national origin, gender, disability, genetic information and other protected classes.  The New Hampshire Commission for Human Rights (“HRC”) responds to claims of discrimination under RSA 354-A, the New Hampshire Law against Discrimination. 

There has been a recent upswing in discrimination claims filed with both agencies.  The EEOC reported that although discrimination charges were slightly down in 2009 over 2008, last year was still the second busiest in EEOC history with 93,277 charges filed.  Retaliation charges along with those based on disability, national origin and religion are all up.  Locally, the New Hampshire Commission for Human Rights (“HRC”) received 323 employment based charges of discrimination in fiscal year 2009.  The number one basis was sex, including harassment and pregnancy (118) followed by retaliation (71) disability (69) and then age (40).

Recent cases in the area of disability discrimination should be of interest to Diane. The EEOC filed suit on behalf of an employee alleging that she was fired because of obesity. The employee, Lisa Harrison, worked for a Pennsylvania-based non-profit organization.  There she counseled the children of mothers undergoing addiction treatment with the New Orleans office of Resources for Human Development. 
The suit claims Harrison was able to perform all the essential functions of her job, but her employer perceived her as being limited in major life activities, such as walking. The suit claims a violation of the Americans with Disabilities Act (“ADA”) alleging “a classic case of disability bias, based on myths and stereotypes.”
Although lawsuits alleging discrimination based on weight are increasing, this is the first significant action taken by the EEOC under the ADA.  Most plaintiffs have instead relied on human rights ordinances that are in effect in a handful of jurisdictions throughout the United States such as Michigan, New Jersey, Washington, D.C., and the California cities of San Francisco and Santa Cruz.

A federal district court in Indiana ruled in August that cancer in remission is a disability under the ADA regardless of whether the illness impacts a major life activity of the employee.  The plaintiff was employed as a service technician supplying patients with home medical devices.  He suffered from Stage III renal cancer and took a significant amount of time out of work for treatment.  He returned to work with no restrictions; but approximately one year later his supervisor informed him that all service technicians were required to work overtime which could be up to 70 hours per week.  He produced a note from his doctor saying that he could work no more than 40 hours per week.  Although the employer agreed to limit his hours to 40, Hoffman was required to work at a site that would require an extra 2-3 hours per day.  He was ultimately terminated and sued claiming an ADA violation.  The court referred to recent amendments to the ADA in confirming that an impairment that is episodic or in remission is a disability if it would limit a major life activity when active. 

The EEOC has also fired a warning shot against employers who use background checks, credit checks and criminal record histories in making hiring decisions.  The EEOC filed suit against a nationwide marketing company claiming that it engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black, Hispanic and male applicants based on their credit histories or one or more criminal charges or convictions.  This practice was seen to have a discriminatory impact based on race, national origin and gender and as not job-related and justified by business necessity.  Information which disqualified employees included defaulting on credit cards, prior bankruptcies and foreclosures and a conviction for shoplifting.  Also of concern was the fact that no consideration was given to the age of the conviction or negative event. 

Employers often cut back on their training budgets and their human resources staff in a soft economy.  Managers are juggling many responsibilities, and time is precious.  It is, however, critical that people like Diane with significant responsibility for compliance with employment laws pay careful attention to making sure the company’s first level managers are properly trained in how to avoid discrimination complaints.  Diane should take advantage of membership in local human resources organizations such as her local chapter of the Society for Human Resource Management.  These organizations offer online training and monthly meetings at which changes in the law are discussed.  Diane should also work closely with her company’s employment counsel to make sure that complaints are handled appropriately, and retaliation is avoided at all costs. 
Charla Bizios Stevens is a Director and Shareholder in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A.  She is Director-Elect and Legislative Affairs Director for the New Hampshire State Council of the Society for Human Resource Management.  Charla can be reached at 603-628-1363 or charla.stevens@mclane.com. The McLane Law Firm is the largest  in New Hampshire, with offices in Concord, Manchester, Portsmouth and Woburn, Massachusetts.