On April 18, 2012, the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing with the august title of "Reviewing the Impact of the Office of Federal Contract Compliance Programs' Regulatory and Enforcement Actions."
In one of Judge Richard Posner’s more celebrated opinions, he wrote that giving preferential hiring to individuals with disabilities would be “affirmative action with a vengeance.” No matter what the Bible says, in this case, vengeance belongs to the Office of Federal Contract Compliance Programs (OFCCP).
Today, the President acted quickly to sign into law the VOW_ to_ Hire_ Heroes_ Act_of_ 2011.pdf. In one of the few displays of both bipartisan and bicameral actions in recent times, Congress passed the legislation intended to assist unemployed veterans find employment. In a symbolic vote on November 10, the day before Veterans Day, the Senate unanimously passed its bill (95-0), which was based upon the House-passed Veterans Opportunity to Work (VOW) Act. The House followed quickly to pass that bill on November 16.
The Department of Labor’s Bureau of Labor Statistics (BLS), in its the October 2011 report, showed that the overall jobless rate for veterans, at 7.7%, was lower than the national rate of 9%, but for those who served in Iraq and Afghanistan, the rate was much higher--12.1%. Some 2/3 of these veterans are under age 35. Breaking the figures down further, Gulf War era II veterans, i.e., those who served since September 2001, who were current or past members of the National Guard or Reserve, suffered a worse unemployment rate in July, of 14%. This was still better than young, male veterans (ages 18-24), who had an unemployment rate of 21.9% in 2010.
The law provides a variety of methods to turn this situation around. Among its key provisions are its increases in education and training, job counseling, transition and placement assistance, and additional help for disabled veterans. It also amends the Uniformed Services Employment and Reemployment Rights Act (USERRA) to clarify what constitutes a benefit and a hostile work environment. One of the biggest boosts toward the goal of getting veterans employed is likely the tax credits to be given to employers hiring veterans. The law would provide a tax credit of up to $5,600 for hiring veterans who have been looking for a job for more than six months, a $2,400 credit for veterans who are unemployed for more than 4 weeks but less than 6 months and a tax credit of up to $9,600 for hiring veterans with service-connected disabilities who have been looking for a job for more than six months.
Most of us grew up believing that our personal religious practices were not the government’s business, one way or the other: no help but no impediments, either. When Title VII was passed and “religion” became a “protected” attribute, the courts were, inevitably, called in to clarify what kind of accommodations – if any – an employer was required to make for religious practices. And the Supreme Court made it clear that governmental neutrality regarding religion carried over into private employment.
The EEOC just published its Notice of Proposed Rulemaking (NPRM) with the august title of “Recordkeeping and Reporting Requirements under Title VII, the ADA, and GINA.” The NPRM, in fact, deals entirely with GINA, the Genetic Information Non-Discrimination Act.
Now that there is an amended ADA and final Regulations have been published, we are waiting for new cases to be litigated so that we can learn just how this new disability regimen will work. We know that many cases that failed under the old law will likely proceed and even succeed now, but one question that floated in the background was the degree to which the EEOC would pursue the limits of the law. A recent case gives us a hint that we are in for quite a ride.
You have to wonder why Congress and the EEOC have given so much time and attention to including ailments and major life activities in the list of presumptive disabilities that have never been considered either major or disabling. One explanation is to think about what’s going on as much in terms of the FMLA as the ADA. Take reproductive functions, for example.
Since the public comment period closed March 4 on OFCCP’s proposed rescission on the Compensation Standards and Voluntary Guidelines, contractors that expended significant time and resources to develop SSEGs have wondered, “What now?” While OFCCP believes it “unnecessary” to issue new guidance on compensation analysis, apparently there is plenty going on behind the scenes at the Agency.
The Federal Circuit has twice given Richard Erickson another shot at his claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Erickson_v._USPS.pdf, No. 2010-3096 (Fed. Cir. Feb. 28, 2011). This time, the question is whether Erickson abandoned his job at the Postal Service (USPS) to be in the National Guard, thus foreclosing his discrimination claim. Erickson was absent for military service for such long periods that he served for more than 22 months from 1991 to 1995 and he only worked for four days between 1996 and 2000, when he was terminated. During that absence, he told a USPS labor relations specialist that he preferred his military service over the USPS and would not report back to work until he completed the current tour of duty in September 2001. He was removed for excessive use of military leave.
In reviewing whether Erickson’s antidiscrimination and reemployment rights claims were viable, or whether he waived his rights, the court discussed what it takes for a servicemember to abandon a civilian career in favor of a military career, thus relinquishing USERRA rights. It reviewed factors that support an inference that a civilian job was abandoned, as covered in earlier cases.
In a much anticipated case, the Justices were finally able to hear and be heard on the appropriateness of a class of 1.5 million female claimants, alleging discrimination in pay and promotion opportunities.
On March 25, 2011, the EEOC issued its Final Regulations interpreting the ADA Amendments Act (ADAAA), ending a 20-month wait since the proposed Regulations were published in September 2009. The Final Regulations will become effective in 60 days. The text of the Regulations are available at www.fortneyscott.com.
The best way to understand the new Regulations is to heed the words of EEO Commissioner Vicky Lipnic: “Remember that these statutory changes were all about expanding coverage and these regulations are all about expanding coverage.”
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