Working Hard For Working People

Previant Legal Show: Sexual Harassment

On August 22, 2011, Attorney Marianne Robbins discussed sexual harassment on the Previant Legal Show (on WTMJ AM 620).  She discussed what conduct constitutes actionable harassment, and what to do if you are the victim of harassment:

Sexual Harassment - Part I

Sexual Harassment - Part II

 

 

 

EEOC Issues Final Rules for Interpretation of ADA Amendments Act of 2008.

On March 25, 2011, the EEOC issued new rules that make provide interpretive guidance and explain the 2008 Amendments that were enacted to make it easier for individuals seeking protection under the Americans with Disabilities Act to receive that protection. Among other things, the rules expand coverage of the Act’s protections to those who have an “actual disability,” a “record of” a disability or who are “regarded as” disabled, while making clear that more than one of these categories may apply to an individual.

The Rules also make clear that the 2008 Amendments lower the threshold with respect to what constitutes a “substantial impairment” of a “major life activity,” specifically noting that the standard applied by the Supreme Court in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), for determining whether an activity qualifies as a major life activity for purposes of being a “disability” and protected under the ADA no longer applies. The Toyota standard, that the activity a person is unable to perform or engage in be of “central importance to most people's daily lives,” was expanded by the legislation and now includes a non-exhaustive list of activities that may constitute a major life activity. The Regulations will also clarify the meaning of “substantially limits” by  the final regulations by providing nine rules of construction that must be applied in determining whether an impairment substantially limits (or substantially limited) a major life activity.

The overall import of the regulations is that they lower the burden on employees seeking protection under the ADA and the new regulations establish specific tests and explicit criteria to define and expand the scope of protection.

Employees Who Make Oral Complaints About Wages Are Protected From Employer Retaliation

In an opinion released March 22, 2011, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics Corp. to extend protection from employer retaliation to workers who filed oral complaints under the FLSA. The Fair Labor Standards Act provides basic protections for workers ranging from minimum wage to overtime pay rules. The Act also provides protection for employees who file complaints from retaliation by their employer.

Kasten an employee of Saint Gobain, had given several oral complaints to the employer that it was failing to pay the employees for their time of putting on and taking off protective work gear at the job site as required under the Act. Kasten claimed that the employer then discharged him for making these complaints. When Kasten filed a suit in District Court alleging illegal retaliation under the Act the District Court ruled for the employer. The District Court held that the Act only protected employees who had filed a written complaint. As a result, Kasten’s multiple oral complaints to Saint Globan were ruled to provide him no protection from retaliation. Upon appeal, the 7^th Circuit Court of Appeals upheld the ruling.

In reviewing the decision, the Supreme Court voted 6 to 2 to overturn the decision and extend protection from retaliation to those who had filed oral complaints. In its published opinion, the Court argued that limiting the retaliation provision to only written complaints would undermine the Act’s basic objectives. The Court also found that Congress hand intended the Act to protect all workers including the illiterate, less educated, and overworked who were unable to commit their complaints to writing. Finally, the Court found that protecting only those who filed written complaints would ultimately undermine the Government’s ability to enforce it though means such as complaint hotlines.