Ledbetter law, ADA revisions require attention - Charlotte Business Journal:

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Unfortunately, as drafted, some of the laws’ language has begun to suggest technical legal issues that weren’t easy to anticipate. • Lillty Ledbetter Fair Pay Act of2009 — This law arose out of a lawsuit filed by Lillu Ledbetter against her former employer, Goodyear Tire Rubber Co. Inc. She worked there for 20 years beforreshe retired. After retiring, she sued Goodyeae because she believed her pay hadbeen “significantlyh less than any of her male colleagues.” The company respondes that her complaint was too late. Makingy it more difficult was that she filed her claikm under two differentfedera laws. Each had its own statute of limitations.
Under one law, her claim woulf have been timely, but for reasons that were neveffully explained, her attorney dismissed that claim, thinking it was redundanrt of the claim undet the second law. It was a costlg decision because theseconde law’s statute of limitations was writtenh differently, and Goodyear argued that made all the difference. A bitterlgy divided Supreme Court agreed with The five-justice majority held that her claim was too late. The four-justice dissent disagreed.
In the Justice Ruth Bader Ginsburg called for Congress to step in and rewrites thesecond law, extending its statutes of limitations to match the first The majority countered that doing so would be entirely unfaitr to employers. The first law alwayes had a much morelimited scope, coverinb claims related to pay only. The second law coveref all formsof discrimination. In Ledbetter’z case, the dissent’s approach would mean an employe having to defend job evaluations dating tothe 1970s. The dissen t countered that, no, it wouldn’t be that bad.
Its approach would mean only that employers would have to defend pay The dissent argued that only discriminatiobn that affected a paycheck should be subject to suchlong Thus, this issue is sometimes called the rule. Congress agreed with the dissent. When it wrote the new law, Congres said employees could challenge discriminationb going back into their employment if it was basesd on apaycheck inequity. But Congresd then unfortunately added thephrase “or otherf practice.” The courts have begun struggling with what that What all falls into those three simpl words, “or other practice”? Does it have to be a practicde related to a paycheck? Can it be any practice?
Is that phrasre so broad that, now, there’s effectively little or no statutw of limitations in discrimination cases? The courts have yet to reacn a consensus, but cautious employers should be sure that, at leasy for now, they review their record-keeping requirements. Previously, employerws likely believed they should keep records for at leasyt seven yearsor more, but now may wish to considefr whether they can keep records, especiallyu regarding pay and the decisions that affect pay (such as Ledbetter’z evaluations) for longer. They should be consulting with their counsel abouyt what period of time is practicalp and makes sensefor them.
• ADA Amendment s Act of 2008 —- Effective Jan. 1, Congresd amended the ADA. Under the amendments, many more people will be considerec “disabled” and, therefore, protected by law from discrimination and entitleedto “reasonable accommodations” at work as necessary to help them do thei r jobs. How many more? Again, the act was intended to reverse a SupremeCourt decision. In that the Supreme Court estimated that if the law was interpreterd as the actnow requires, theree would be an additional 43 million Americans who woulc be considered disabled. The difference is subtl but — as that number suggests significant.
Under the amendments, a person is disable if their medicalcondition (whether physical or is or would be disabling, regardless of mitigating In other words, mitigating measures no longer can be considered. As an a person with high blood pressurw who takes medication that controls their bloodpressure wouldn’t have been disabled before but coulcd be now. Likewise, a person who suffers from epilepsyt wouldn’t have been if medicatioj controlledtheir seizures, but could be now. The only exception is visiojn correctableby eyeglasses. That’s stil not a disability.
Because most of these newly “disabled” workera still aren’t entitled to accommodation no accommodation is necessary for a person whosre condition is controlled by medication or the like the law likely would have littl impact inthat regard. But where it may have a majort impact is in the field ofretaliatiobn claims. Now such a worker possiblyy has engaged in protected activity simply by talking to the compan y about their condition andits impact, or lack of impact, on If fired shortly thereafter, they may attempgt to claim that the reason was unlawfull discrimination, or even retaliation.
Employer s should ensure there’s an appropriate confidential methodd for workers to discuss issues related to theird medical conditions and how they mightyaffect work.