On May 5, 2010, the Ninth Circuit Court of Appeal issued an Opinion, to be published, in the case titled Porter v. Winter (9th Cir. 07-171250). Attorney Charles L. Post prepared and submitted the briefs and attorney Lizbeth V. West appeared and argued before the Ninth Circuit on behalf of Appellant, Ronald Porter.
Continue Reading...On February 5, 2010, the EEOC issued a press release announcing the court approval of a $6.2 million settlement of its lawsuit against Sears, Roebuck & Company on behalf of 235 employees. The lawsuit maintained that Sears had an inflexible workers’ compensation leave exhaustion policy that terminated employees once they exhausted their workers’ compensation [leave] entitlement rather than engaging in the interactive process to determine if a reasonable accommodation existed to help return them to work. The settlement is the largest ADA settlement in a single case in EEOC history. Each of the 235 employees will receive approximately $26,300 in settlement funds.
Continue Reading...On September 25, 2008, the ADA Amendments Act of 2008 was signed into law by President Bush. It becomes effective January 1, 2009. This new law is designed to undo several Supreme Court decisions and thereby broaden the number of individuals who can seek protection under the Americans with Disabilities Act (ADA). The amendments include the following highlights:
a. Employers must assess whether an individual is disabled without considering corrective measures, i.e. medical supplies or equipment (except for glasses or contacts); use of assistive technology; auxiliary aids or services; and learned behavioral or adaptive neurological modifications.
b. An impairment that is episodic or in remission constitutes a disability if it would substantially limit a major life activity while active.
c. An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
d. The list of "major life activities" is expanded to include, but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working; as well as “major bodily functions” such as the function of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
e. The "regarded as disabled" standard is lowered to prohibit an action prohibited under the ADA because of an actual or perceived physical or mental impairment, whether or not such impairment is perceived to limit, or actually limits, a major life activity. The “regarded as disabled” standard does not apply to impairments that are transitory and minor. A “transitory” impairment is one with an actual or expected duration of 6 months or less.
f. Employers may not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the employer, is known to be related to the position and is consistent with business necessity.
Because the ADA Amendment Act brings the ADA more in line with California’s disability laws under the Fair Employment and Housing Act (FEHA), California employers can expect to experience few changes in their administration of disability accommodation policies. Employers should continue to comply with the requirements of FEHA.
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