United States: Chapter 3 Discrimination

Because this chapter is written for human resources professionals, we pose the following question: How much does HR really need to know about employment discrimination law? We assume that HR knows the "First Commandment": Thou shalt not treat employees differently on the basis of legally protected characteristics. In addition to this knowledge, HR almost always has access to legal counsel when administrative charges (e.g., claims brought before the Equal Employment Opportunity Commission (EEOC) or a state or local agency) or lawsuits come through the company's door. Isn't this enough?

The premise of this chapter is that the answer to the foregoing question is "No, it isn't enough." In today's challenging economy, unnecessary calls from HR to legal counsel bring a financial cost that those responsible for the company's financial health undoubtedly prefer to avoid. Equally true, however, is the risk that the failure to act when such a call is necessary might have adverse consequences (for example, a charge or lawsuit down the road that might otherwise have been avoided).

The challenges to HR, then, are manifold. How does HR recognize latent dangers when a business manager calls to bring a situation to HR's attention? What steps can HR take on its own to educate company management? How does HR identify high-risk situations? How likely is a bad outcome absent aggressive HR intervention? Does HR have sufficient internal authority to persuade business managers to take the steps that HR believes are necessary? Having done an initial assessment, when can HR appropriately decide to manage the situation on its own, and when is the call to legal counsel warranted? What are the best and worst possible outcomes for a particular factual situation?

This chapter presents the basics of employment discrimination concepts in plain English, with the hope that the reader, having finished the chapter, will be better positioned to answer these questions. We have organized the chapter from the most familiar set of challenges to most HR professionals — the single-employee disparate treatment (intentional discrimination) claim — to consideration of more complex group situations. What must the individual employee prove to sustain her claim? What defenses can the employer assert? Perhaps most importantly, what can HR do, before it is too late, to best position the company to prevail in such a claim, or even avoid it altogether?

The emphasized text merits some initial elaboration. Most employment law attorneys function as both litigators and counselors. Litigators function in one sense as historians: they reconstruct events that have already occurred and advance arguments on behalf of their clients based on historically closed events. As counselors, attorneys are sometimes able to influence those facts before the historical record is closed. Even in that role, however, attorneys usually function by suggesting to company officials how they should act. Often, it is HR who implements these suggestions and creates the factual record that, for better or worse, the litigator inherits, and on which the company's defense succeeds or fails. This is one reason why HR professionals who understand employment law concepts are their attorneys' best friends!

These considerations apply with equal — or perhaps greater — force in situations where many employees are involved. Again, recognizing the challenges of the current economy, we offer the reduction-in-force (RIF) as one example of these situations. What is HR's role in a RIF? What legal requirements limit the company's options? How should the RIF be designed? Should designing the RIF be a top-down process, bottom-up, or one that contains input from both directions? If bottom-up, are there particular managers (or other decision-makers) who warrant special concern? How can the company's business objectives be harmonized with applicable legal rules?

To ask these questions establishes the critical role of HR, regardless of a particular company's answers to them. While there are notable exceptions, as a rule, outside counsel is unlikely to know the company — including its financial, managerial, and personnel strengths and weaknesses — in sufficient detail to make these decisions without substantial assistance. This assistance usually comes from HR, who will bring greater value to the process with a better understanding of applicable legal rules.

In connection with group employment decisions like RIFs, this understanding must include not only disparate treatment theories, but also adverse impact (also called disparate impact) theories. Adverse impact is sometimes referred to as "accidental" discrimination (as opposed to intentional discrimination), and looks heavily to statistical analyses for support. The Supreme Court has told us that adverse impact analysis does not require employers to impose quotas. Harmonizing this statement with adverse impact analysis is not always easy, as we shall see. The benefits to HR in understanding these concepts cannot be overstated.

We pause for an important caveat on the limits of this chapter. We are concerned with discrimination, but there are many other factors that HR must consider in connection with group employment actions. One example, in connection with large RIFs, is the Worker Adjustment and Retraining Notification Act (WARN), which is beyond the purview of this chapter.

Finally, we will highlight some of the issues in the discrimination area that, as of this writing, are very much in play as possible legal developments, whether through new legislation or evolving judicial doctrine. But, as promised, we begin with the basics: the single-employee intentional discrimination paradigm.

Understanding Employment Discrimination —
The Basics

Employment discrimination statutes prohibit employers from treating people differently on the basis of a legally protected characteristic. The statutes protect employees, as well as persons who are seeking employment and, in some cases, former employees. Major protected characteristics include: race, color, national origin, sex, age, disability, religion, and military service. Each of these distinct types of discrimination is discussed later in the chapter, but first we provide a discussion of certain basic concepts that apply to all of them.

Adverse Employment Action

In general, employment discrimination occurs when an employer subjects an employee to an adverse employment action because of the employee's protected characteristic. An employer's conduct will only qualify as an adverse employment action if it is serious enough to alter the employee's compensation or other terms, conditions, or privileges of employment. Courts generally hold that, to be "materially adverse," a change in working conditions must be more than a mere inconvenience or an alteration of job responsibilities. It must have a serious detrimental impact on the employee's current employment or opportunities to secure future employment.

Courts have articulated three general categories of actionable, materially adverse employment actions:

Because there are no bright-line rules for determining when an employment action is "materially adverse," the determination in each particular case can be very fact sensitive.

Examples of the type of action that could indicate a materially adverse change are:

• A demotion accompanied or evidenced by a decrease in wage or salary;
  
• A change in job title;
  
• A material loss of benefits;
  
• Significantly diminished job responsibilities; and
  
• A loss of supervisory responsibility.
  

A loss of prestige may constitute an "adverse employment action" if it affects opportunities for professional advancement. This issue often arises when an employee has been demoted, has had a change in job title or reporting responsibilities, has been transferred, or has been denied a transfer. Although a change in job title may constitute an adverse employment action under some circumstances, where the change is just a matter of semantics with no negative consequences to the employee, most likely no adverse action will be found.

Disparate Treatment

There are two broad categories of discrimination claims, "disparate treatment" and "disparate impact." Disparate treatment is the simpler and more common of the two. Disparate treatment occurs when an employer intentionally discriminates against someone because of a protected characteristic such as race, sex, or age. Examples include outright bias (such as refusing to hire members of a particular religion because of the employer's dislike for them), preferential treatment (such as favoring members of a particular ethnic group to the disadvantage of non-members), and acting on the basis of stereotypes (such as regarding older job applicants as too out of touch with current office technology). Reverse discrimination and harassment of an individual because of a protected trait also constitute intentional discrimination. We will discuss disparate impact thoroughly later in this chapter.

Proof of Intentional Discrimination

A claim of intentional discrimination requires proof that the employer treated the employee differently than others because of the employee's protected characteristic. There are two methods by which the employee can prove the company's motivation. The first is with direct evidence of the company's discriminatory motive. An example of direct evidence would be if a supervisor told an employee that he was terminating her because he thought she was too old to perform the job.

Not surprisingly, employees in disparate treatment cases often lack direct evidence of discrimination because employers generally will not engage in conduct or make statements that constitute direct evidence. For this reason, the courts have developed a means through which an employee can prove intentional discrimination through indirect or circumstantial evidence. Under this approach, the employee must initially establish a prima facie case of intentional discrimination by showing:

• Membership in a protected class (race, sex, age, etc.);
  
• Qualification for the job in question;
  
• An adverse employment action; and
  
• Circumstances that support an inference of discrimination.
  

If the employee does so, the company is then required to articulate a legitimate, nondiscriminatory reason for the adverse employment action that the employee claims was discriminatory. In other words, the company must explain why it took the adverse action. After the company provides this explanation, the employee can present evidence showing that the company's stated reasons for its actions are untrue and are offered merely as a pretext for discrimination.

Pretext and the Importance of Being Truthful

The burden-shifting formula described above enables an employee to succeed on a claim of intentional discrimination without any direct evidence of such discrimination. If the employee can persuade the trier of fact (typically a jury) that the explanation offered by the company is not true, the jury is permitted to infer or presume that the employer's real reason for the adverse employment action is unlawful discrimination and that the false explanation being offered is pretextual; i.e., it is intended to hide the discrimination that is actually taking place.

Technically, the burden of proof in such cases remains with the employee at all times. The company is not required to prove that its explanation for the adverse employment action is true. The employee must prove that the explanation is false. As a practical matter, however, an employer confronted with such a claim often will proceed as if it bears the burden of persuasion and will make every effort to persuade the trier of fact that its explanation for the adverse employment action is true. The employer will be in the best position to do so if its explanation is, in fact, truthful. Thus, when making personnel decisions, especially those involving hiring, terminations, and promotions, it is important that the employer have a clear and full understanding of the reasons for its decisions, that it document the decision-making process, and that it not take any actions or make any statements that are inconsistent with its actual reasons for the decision.

Courts and juries are supposed to respect the business judgment of the employer. Their role is to determine whether the reasons offered by an employer for an adverse employment action are true, not whether the action constituted a good business decision. Thus, an employee cannot establish pretext merely by challenging the employer's business judgment or showing that the employer's decision was wrong or mistaken. It is sometimes said that it is not the court's or the jury's role to second-guess an employer's business judgment and to act as a "super-personnel department." Rather, their role is limited to determining whether an employment decision is discriminatory.

Under limited circumstances, an employer may be allowed to consider attributes in a manner that, under other circumstances, would be considered discriminatory. For example, a manufacturer of men's clothing may lawfully select a male model for advertising purposes. In this example, being male is a bona fide occupational qualification (BFOQ) for the position. There is no BFOQ for racial distinctions.

Retaliation

Retaliation cases present many of the same issues as disparate treatment discrimination cases. The elements of a retaliation case are similar:

• Participation in protected conduct (e.g., complaining of illegal discrimination) of which the employer was aware;
  
• Qualification for the job in question;
  
• An adverse employment action; and
  
• Circumstances that support an inference of retaliation.
  

A key distinction between discrimination and retaliation cases is that the former focuses on status (member of a protected class) while the latter focuses on conduct.

In 2009, the U.S. Supreme Court expanded the scope of Title VII's anti-retaliation protections. Specifically, in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., the Supreme Court held that Title VII's anti-retaliation provision protects not only employees who report complaints of harassment/discrimination on their own initiative, but also employees who speak out about harassment/discrimination while answering questions during an employer's internal investigation of a harassment/discrimination complaint brought by someone else. In so holding, the Court rejected the argument that "the lower the bar for retaliation claims, the less likely it is that employers will look into what may be happening outside the executive suite." This argument, the Court explained, is "unconvincing" because it "underestimates the incentive to enquire that follows from our [earlier] decisions." While the reader is referred to Chapter 12 for a more detailed discussion of these cases, in Crawford the Court explained that they provide employers with "a strong incentive to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability."

Causation

Causation is a necessary component of both discrimination and retaliation cases. Causation is important at both the prima facie stage, where the employee must show that the adverse employment action occurred under circumstances that support an inference of discrimination or retaliation, and as part of the employee's ultimate burden of proof. Indeed, in many cases, causation is the critical issue, since every employee is a member of one or more protected groups and, in the context of a termination, has suffered an adverse employment action. If the employee is also qualified for the job in question, then the element of causation may be the bedrock of the employer's defense.

Causation is a concept of virtually limitless complexity. An important consideration is foreseeability. If an employer could reasonably foresee that an action it takes would lead to an adverse employment action for the employee, it is more likely that a judge or jury will find that the requirement of causation has been satisfied. But do not presume that causation and foreseeability are one and the same — they are different (if related) concepts.

For purposes of this chapter, we focus on three considerations that often determine whether causation is present. First, with respect to retaliation cases, courts are very concerned with temporal proximity. As the United States Supreme Court has explained, "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close,'. . . . Action taken (as here) 20 months later suggests, by itself, no causality at all." Many lower courts have found that the passage of even a few months will negate any inference of causation, although the courts will look at all of the facts and circumstances in a particular case.

The second principle, sometimes called the "cat's paw doctrine," applies in both the discrimination and the retaliation context. Judge Richard Posner of the Seventh Circuit coined the term "cat's paw" in the case of Sharger v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). The reference is to Jean de La Fontaine's famous fable of the monkey and the cat. In the fable, a crafty monkey wants to eat some hot chestnuts that are roasting in the fire. Unwilling to burn his own hand, the monkey convinces the cat to reach his paw in and pull the chestnuts out for him. The cat foolishly does his bidding, and the monkey enjoys the chestnuts with a laugh while the cat licks his burnt paw.

In the employment law context, the cat's paw doctrine refers to a discriminatory (or retaliatory) subordinate (akin to the crafty monkey in de La Fontaine's fable) who dupes the unwitting supervisor into taking an adverse employment action against the employee. Not all courts use the cat's paw metaphor; some refer to such cases as presenting a theory of subordinate liability or subordinate bias liability. By any name, the causation issues in such cases are manifold, but essentially turn on the role of the biased subordinate in the process that leads to the decision to take the adverse employment action. (An employee may contend that both the supervisor and the subordinate are biased. Such a case is not a true "cat's paw" situation.)

A typical cat's paw case, then, involves a manager or supervisor who has a discriminatory or retaliatory intent toward one of his subordinates, but who also lacks the ability to terminate (or otherwise take action against) the employee. What the supervisor may do is manipulate the ultimate decision-maker(s) (whether by issuing written memoranda or otherwise making negative reports, recommending negative action, or simply influencing the decision-maker(s)' view of the subordinate). In a very large corporation, the ultimate decision-maker might not even know that the employee was a member of a protected class or engaged in protected conduct. As innocent as de La Fontaine's cat, the decision-maker(s) may nonetheless be duped into discriminatory or retaliatory conduct. In such cases causation is a critical question. Did the biased subordinate sufficiently "cause" the adverse employment action such that the employer may be liable?

We frame the question; we do not endeavor to answer it fully. In Staub v. Proctor Hospital, the Supreme Court addressed the "cat's paw" theory in the context of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), and noted that its analysis was rooted in the statutory language of USERRA, which imposes liability if an employee's uniformed service "is a motivating factor" in the adverse employment action. Based on this language, for purposes of USERRA, the Court found that a manager's discriminatory animus can be sufficient to make the employer liable, even if the ultimate decision-maker was not discriminatory, if the subordinate manager's animus was a proximate cause of the adverse employment action:

It is not yet clear how the Staub decision will be applied in "cat's paw" cases arising under other federal, state, and local laws.

Third, we note that the Supreme Court has recently explained that causation is analyzed differently under Title VII than under the ADEA. Under Title VII, an employee must show that his/her race or sex played "a motivating part" in the challenged employment decision. In 2009, however, the Court announced a stricter standard for age discrimination claims under the ADEA. To prove age discrimination, the Court explained, the employee must "establish that age was the 'but-for' cause of the employer's adverse action." Among other issues, it remains to be seen how the Court will apply the "cat's paw" theory under discrimination statutes that have different standards for causation than the "motivating factor" test under USERRA.

Mixed-Motive Cases Under the ADEA

In a mixed-motive case of disparate treatment, an employee alleges that both legitimate factors and unlawful discrimination influenced the employment action in question (i.e., that discrimination was a motivating factor). The U.S. Supreme Court has ruled that for employees to prevail in a disparate treatment age discrimination case, they must prove that age bias was the ultimate reason the employer took the adverse employment action. In its decision, the Court ruled that the burden of persuasion is the same in alleged mixed-motive cases as in any other ADEA disparate treatment action (i.e., the employee must prove that the employer took the action because of the employee's age). This ruling is different from the rules applied in mixed-motive cases under Title VII. In Title VII cases, once the employee proves that unlawful discrimination motivated the employer, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination. In its decision, the Court noted that Congress expressly amended Title VII to authorize claims in which unlawful discrimination was "a motivating factor," but did not add a similar provision to the ADEA.

As a result, it is now more difficult for employees to prevail in age discrimination lawsuits. Employees must be able to prove not only that age motivated the employer's adverse action but also that intentional age discrimination was the ultimate reason for the action.

Specific Protected Categories

Most HR professionals know that employees are members of multiple protected categories for purposes of discrimination law; at a bare minimum, every employee has a gender and a race. We pause here to identify and discuss some of the protected categories that, seemingly, are at issue in most discrimination lawsuits. We note that different federal, state, and local laws establish different levels for the number of employees an organization must employ in order to be subject to a particular statute. A discussion of these "thresholds" is beyond the scope of this chapter. Similarly, we confine our discussion of protected categories to federal statutes; the reader should consult with local counsel about state/local laws, which can vary substantially from federal law and from each other.

Sex

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits sex discrimination in all aspects of employment and also prohibits retaliation against employees who complain of sex discrimination. For example, discriminating against an employee because of his or her sex with respect to hiring, leaves of absence (e.g., pregnancy or parental leave), health insurance, compensation, and termination is prohibited.

Title VII also prohibits sexual harassment, which is considered a form of discrimination. Traditionally, sexual harassment was analyzed under either the so-called quid pro quo theory, or under a "hostile work environment" theory.

Quid pro quo is Latin for "this for that." In a prototypical quid pro quo case, a supervisor makes a specific employment benefit (a raise, a favorable job assignment, continued employment, etc.) contingent on some form of sexual activity. A "hostile work environment" occurs any time an employee is subject to unwelcome sexual conduct that is sufficiently severe and pervasive to alter the terms and conditions of an employee's employment. It is difficult to define precisely how severe the unwelcome sexual conduct must be to become actionable. Nonetheless, it is clear that the more "severe" the conduct is, the less "pervasive" it must be, and vice versa. Thus, a truly egregious act (e.g., a vicious sexual assault) would likely be actionable the first time it occurred, whereas a less severe act (e.g., inappropriate comments) would need to occur more frequently. More recently, many courts have recognized the quid pro quo/hostile work environment dichotomy as perhaps didactically useful, but jurisprudentially unnecessary.

Sexual harassment is discussed in further detail in Chapter 12.

Race

Federal statutory proscriptions on race discrimination extend back to the year after the close of the Civil War, when Congress passed the Civil Rights Act of 1866. The statute provides, in relevant part:

Congress amended the Civil Rights Act in 1991, clarifying that "the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."

Even before the 1991 amendments, Congress had augmented the employment law protections of the Civil Rights Act with the passage of Title VII in 1964. Title VII applies broadly to all aspects of employment, and makes it unlawful to discriminate on the basis of race, color, or national origin. Title VII protects persons because of their race-linked characteristics (e.g., hair texture, facial features) and because of their marriage to or association with someone of a particular race, color, or national origin.

Although race, color, and national origin discrimination theories overlap, they are not identical. The prohibition against racial discrimination extends to perceived racial discrimination. Color discrimination can occur between persons of the same or different races or ethnicities. "Color" is often used to refer to pigmentation, skin shade or tone, etc. Color discrimination occurs when an employee is discriminated against on the basis of these characteristics.

"National origin" most often refers to the country where an employee was born, or where his ancestors came from. Title VII prohibits discrimination on this basis, or on the basis of ethnicity.

Title VII also prohibits harassment based on these attributes. Thus, Title VII prohibits subjecting an employee to unwelcome conduct that is sufficiently severe and pervasive so as to alter the terms and conditions of a person's employment because of her race, color, or national origin.

Disability

The Americans with Disabilities Act (ADA) prohibits employment discrimination against qualified persons with disabilities. People could claim to have a "disability" in any of three ways: they could actually have a disability; they could have a record of a disability; or they could be (erroneously) regarded as having a disability by their employer. To have a "disability" a person must have a physical or mental limitation that substantially limits them in a major life activity.

The statute was amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Effective January 1, 2009, the ADAAA broadened coverage under the ADA, in part to roll back several Supreme Court decisions. Interestingly, the ADAAA did not actually change the statutory definition of "disability" but, rather, directed courts to construe the term in favor of broader coverage.

The ADAAA did make several substantive changes to the ADA. A partial list of these changes includes:

The ADAAA directs that the determination of whether an individual is "substantially limited in a major activity" be made without regard to mitigating measures, with the exception of "ordinary eyeglasses or contact lenses." This provision overrules Supreme Court precedent reaching the contrary conclusion.

For purposes of determining whether a person is actually disabled, the ADAAA expands the list of "major life activities" to include "major bodily functions."

The ADAAA makes clear that to be "regarded as" disabled, an employee need only show that the employer perceived her as disabled. The employee need not show that the employer perceived her as substantially limited in a major life activity.

Persons with a disability only because they are "regarded as" disabled are not entitled to a reasonable accommodation.

Having a "disability" brings an employee within the coverage of the ADA/ADAAA. To prevail in a discrimination claim, the employee must prove that he was qualified, that is, able to perform the essential functions of the job with or without a reasonable accommodation. There is a great deal written about what makes a job function "essential." At bottom, an essential function means a fundamental job duty, not a marginal one.

Even for a qualified individual with a disability, the ADA only requires a "reasonable" accommodation. There is no magic formula for determining whether an accommodation is reasonable. Courts will look at whether the accommodation is effective (lets the employee perform the essential functions of the job), in addition to the burden (e.g., cost) the accommodation imposes on the employer. An accommodation that imposes an undue burden on the employer is not reasonable. The ADA and its implementing regulations provide numerous examples.

Some states have statutes that are broader than the ADA, even after the ADAAA. Employers are advised to check with local counsel. Further, the provisions of the ADA and ADAAA are discussed in further detail in the ADA chapter of this manual.

Age

The federal Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful to discriminate against persons 40 or over with respect to the terms and conditions of their employment. Some state age-discrimination laws protect even younger workers.

Congress amended the ADEA in 1990 with the passage of the Older Workers Benefit Protection Act (OWBPA) to forbid discrimination in employee benefits on the basis of age. The OWBPA also established strict rules for obtaining releases of ADEA claims from covered employees. Under the OWBPA, a valid waiver of ADEA claims must, at a minimum:

• Be in writing and be understandable;
  
• Specifically refer to ADEA rights or claims;
  
• Not purport to waive rights or claims that may arise in the future;
  
• Be in exchange for valuable consideration;
  
• Advise the person in writing to consult with an attorney before signing the waiver; and
  
• Provide the individual with at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.
  
• Special rules govern ADEA releases in the context of group terminations.
  

Religion

Title VII prohibits employers from discriminating against employees because of their religion in connection with the terms and conditions of their employment. Employers cannot force employees to participate, or refrain from participating, in a religious activity as a term and condition of employment. Employers must reasonably accommodate employees' sincerely held religious beliefs or practices that conflict with an employment requirement unless the employer can show that the accommodation would cause "undue hardship" to the employer's business.

Genetic Information

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating on the basis of genetic information about employees, applicants, former employees, or their family members. Final regulations implementing GINA were issued by the EEOC and became effective January 10, 2011. GINA applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations ("covered entities"). Under GINA, it is unlawful for a covered entity to:

• Fail or refuse to hire, or to discharge or otherwise discriminate in the compensation, terms, conditions, or privileges of employment because of genetic information.
  
• Limit, segregate, or classify employees or applicants in any way that deprives them of employment opportunities or otherwise adversely affects employment status because of genetic information.
  
• Request, require, or purchase genetic information about employees, applicants, former employees, or their family members.
  
• Discriminate in the admission to any apprenticeship, training, or retraining program.
  
• Harass an employee on the basis of genetic information.
  

Acquisition of Genetic Information. GINA places broad restrictions on the acquisition and use (including disclosure) by covered entities of genetic information. As a general rule, employers do not violate GINA if their acquisition of genetic information is inadvertent. To be covered by this exception, employers requesting medical information from an individual or health care provider must direct the individual or provider not to provide genetic information. The regulations issued by the EEOC provide the following model "safe harbor" language for employers to include with requests for medical information:

Employers should include the notice on any request for documentation to support an employee's request for reasonable accommodation. The EEOC is expected to provide additional guidance for employers regarding which types of medical information requests need the safe harbor language.

The "Watercooler" Exception. Acquisition of genetic information is also considered inadvertent if a manager or supervisor learns genetic information about an employee by overhearing a conversation between the employee and others or by receiving it during casual conversation with the employee or others.

The exception does not apply if an employer follows up with "probing" questions, such as whether other family members have the condition or whether the employee has been tested for the condition.

Confidentiality. No matter how an employer obtains genetic information, the information must be treated as a confidential medical record and kept separate from personnel files. Access to medical files should be strictly limited. Information may be kept in the same files that an employer uses for confidential medical information under the ADA as long as the ADA's confidentiality requirements are met.

Military Service

While the list of protected categories goes on, seemingly without end, we conclude our discussion of this topic with a short discussion of military service. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) advances the rights of employees to take leaves of absence from their jobs to provide military service, and, upon conclusion of that service, return to their jobs with minimal disruption to their careers. Under a doctrine known as the "escalator principle," USERRA requires employers to reemploy returning servicemembers in the position and at the rate of pay they would have attained but for the intervening military service. If the returning servicemember cannot qualify for the position he would receive under the escalator principle, employers must provide alternative reemployment positions and must make reasonable efforts (e.g., training or retraining) to enable returning servicemembers to enhance their skills to help them qualify for reemployment. While an employee is performing military service, USERRA deems that person to be treated as if on a furlough or leave of absence and, thus, entitled to the non-seniority rights accorded other individuals on nonmilitary leaves of absence.

Footnotes

^{1.Readers interested in case citations and a more detailed analysis will find them in the footnotes.}

^{2.Ricci v. DeStefano, 129 S.Ct. 2658 (2009); Grutter v. Bollinger, 539 U.S. 306 (2003).}

^{3.We use the terms "company" and "employer" synonymously as terms for entities that have employees, whether private, not for profit, governmental agencies, etc. Gender pronouns are used interchangeably unless otherwise indicated.}

^{4.According to EEOC regulations, the BFOQ is limited in scope and should be narrowly construed. Employers should consult with legal counsel in connection with BFOQ issues.}

^{5.129 S.Ct. 846 (2009).}

^{6.Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998).}

^{7.Crawford, 129 S.Ct. at 852.}

^{8.Readers interested in causation in the tort context are urged to read the famous decision of New York Court of Appeals Chief Judge (and later United States Supreme Court Justice) Benjamin Cardozo in the case of Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928). The facts of Palsgraf illustrate just how attenuated the link between a negligent act and the ultimate injury can become. A passenger hurrying to board a moving train was carrying a package. Two of the railroad's guards thought she was falling. One guard, located on the car, tried to pull the passenger into the car. The other guard, located on the platform, tried to push the passenger into the car from behind. The guards' efforts caused the passenger to drop a package she was carrying onto the rails. Unknown to the guards, the package (wrapped in newspaper) contained fireworks and exploded when it hit the rails. The shock may have knocked down scales at the other end of the platform (alternatively, a panicked bystander may have knocked down the scales), which injured Ms. Palsgraf, who sued the railroad, claiming the guards' negligent acts caused her injury. The trial court and the intermediate appeals court found for Ms. Palsgraf and sustained the jury's verdict in her favor. Long Island Railroad appealed. Writing for the Court of Appeals, Judge Cardozo explained that the causal nexus between the guards' actions and Ms. Palsgraf's injury was too attenuated to support the jury's verdict.}

^{9.Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001).}

^{10.Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87 (2d Cir. 2001); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001).}

^{11.131 S.Ct. 1186 (2011).}

^{12.131 S.Ct. at 1192 (emphasis on original).}

^{13.See, e.g., Simmons v. Sykes Enterprises, Inc., 647 F.3d 943 (10th Cir. 2011) for an application of Staub to an age discrimination claim under the ADEA.}

^{14.Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).}

^{15.Gross v. FBL Financial Servs., 129 S.Ct. 2343 (2009).}

^{16.Id. at 2350.}

^{17.Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009).}

^{18.As the United States Supreme Court observed, courts and juries will make these judgments drawing on"[c]ommon sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish
between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable
person in the plaintiff's position would find severely hostile or abusive."
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).}

^{19.42 U.S.C. § 1981(a).}

^{20.42 U.S.C. § 1981(b).}

^{21.An earlier statute, the Rehabilitation Act of 1973, was a predecessor to the ADA and the first comprehensive federal statute designed to eliminate employment discrimination against qualified persons with disabilities. 29 U.S.C. § 781 et seq.}

^{22.Compare Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (vision that could be normal with corrective lenses did not constitute a disability) with Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) (heart condition that could be controlled through medication did not constitute a disability) and Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (squarely holding that mitigating measures must be considered in assessing whether an individual has a disability). Pending judicial interpretation of the ADAAA, it seems reasonable to assume that the statute overruled the Murphy and Albertson's decisions, while leaving the Sutton holding largely intact.}

^{23.In Toyota Motor Mfg., 534 U.S. 184 (2002), the Supreme Court defined "major life activities" as those activities that are of central importance to daily life. The ADAAA broadens this definition.}

^{24.42 U.S.C. § 12111(8).}

^{25.29 C.F.R. § 1630.2(n).}

^{26.US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) ("In our opinion, that practical view of the statute [requires] reconciling the two statutory phrases ('reasonable accommodation' and 'undue hardship')."}

^{27.42 U.S.C. § 12111(a); 29 C.F.R. § 1630.2(o).}

^{28.29 U.S.C. § 621 et seq. There are limited circumstances where older employees may be treated differently; a discussion of those circumstances is beyond the scope of this chapter.}

^{29.42 U.S.C. § 2000e(j).}

^{30.38 U.S.C. § 4301-4334.}

To view full article click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.