Monthly Archives: April 2011

April 15, 2011

Recent Supreme Court Decision Expands Scope of Employee Retaliation Claims

by Pam S. Howland

In a Supreme Court decision issued in late March, Kasten v. Saint-Gobain Performance Plastics Corporation, 2011 WL 977061 (U.S.), the Court continued its pro-employee expansion of causes of action stemming from workplace conduct.  At issue in this case is the Fair Labor Standards Act of 1938, an Act which provides minimum wage, maximum hour, and overtime pay rules.  This Act contains anti-retaliation language prohibiting employers from discharging an employee who has filed a complaint. 

Kevin Kasten, the plaintiff, had complained that his employer’s placement of timeclocks prevented workers from receiving credit for time spent getting into and out of protective gear.  Kasten claimed that his employer located timeclocks between the area where he and other workers put on and took off their work-related protective gear and the area where they carried out their assigned tasks.  In a separate lawsuit, a court agreed with Kasten, finding that Saint-Gobain’s practice violated the Act.  


In the current case, Kasten argued that he had repeatedly followed the company’s grievance procedure by bringing the unlawful timeclock location to the company’s attention.  Kasten’s complaints, he alleged, eventually led to his termination in December 2006.  Saint-Gobain, on the other hand, argued that Kasten failed to make any significant complaint about the timeclock location and that he was eventually dismissed for failing to record his time on the clock.

The district court dismissed Kasten’s retaliation complaint on the basis that the Fair Labor Standards Act did not protect oral complaints.  On appeal, the Seventh Circuit agreed.  The United States Supreme Court, however, did not.  It ultimately concluded that the Act covered both oral and written complaints.  In reaching this decision, it determined, among other things, that Congress intended the anti-retaliation provision to be more expansive and that the narrow interpretation put forth by the lower courts would undermine the Act’s basic objectives. 

For employers, this case reinforces the importance of investigating any and all complaints of workplace discrimination or harassment, regardless of whether they originate from written complaints or are made through more informal avenues, such as oral complaints.  It further exemplifies the importance of documenting any and all adverse employment decisions, such as a job termination or demotion, as well as the conduct that lead to the decision, in order to avoid later claims of retaliation.

April 5, 2011

EEOC Releases Final ADA Amendment Act (“ADAAA”) Regulations Implementing Requirements of ADAAA

by Scott E. Randolph

Over two years after the Americans with Disabilities Act Amendments (“ADAAA”) became effective, the United States Equal Employment Opportunity Commission (“EEOC”) released its final regulations implementing the ADAAA.  The final regulations are available here and will become effective on May 24, 2011.  The final regulations contain interpretive guidance that should prove helpful for employers attempting to decipher the impact of the new regulations on their businesses.

The ADAAA states that whether a disability “substantially limits” a major life activity shall be determined without regard to the ameliorative affect of mitigative measures.  In everyday language, this means employers generally should not consider whether someone is disabled in their medicated or corrected state.  Instead, they should consider whether the condition if left uncorrected would substantially limit a major life activity.  For example, under the ADAAA, courts will likely consider whether epilepsy substantially interferes with a major life activity without considering the effect of medication on that condition.  As we previously discussed, in most cases this will put the focus on the interactive process instead of on whether the individual has a disability in the first place. 

According to the EEOC, the final regulations differ from the Notice of Proposed Rulemaking announced on September 23, 2009 in the following ways:

Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities (as had been done in the NPRM), the final regulations provide the nine rules of construction to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability. The regulations also provide examples of impairments that should easily be concluded to be disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.

Language in the NPRM describing how to demonstrate that an individual is substantially limited in “working” has been deleted from the final regulations and moved to the appendix (consistent with how other major life activities are addressed). The final regulations also retain the existing familiar language of “class or broad range of jobs” rather than introducing a new term, and they provide examples of individuals who could be considered substantially limited in working.

The final regulations retain the concepts of “condition, manner, or duration” that the NPRM had proposed to delete and explain that while consideration of these factors may be unnecessary to determine whether an impairment substantially limits a major life activity, they may be relevant in certain cases.

More information from the EEOC is available here.  Stay tuned as we continue to watch how the regulations play out in the courts.  In the meantime, we suggest that employers take time to revisit their existing ADA policies to ensure compliance with the final regulations.