Rod Satterwhite and David Greenspan are members of the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.

Tuesday, May 30, 2006 - Posts

The Older Workers Benefits and Stereotyping Act

Perhaps my all-time favorite employment statute is the Older Workers Benefits Protection Act, which defines the requirements for waivers for age discrimination claims.  Rarely does one find such an explicit statutory validation for stereotyping an increasingly larger segment of the population, namely, the elderly. 

Let's jump through the hoops (or, given the context, let's shuffle along the sidewalk) -- Congress passed the ADEA in 1967 to protect people over 40 (otherwise known as the aged or elderly) from being stereotyped as easy to mislead, unable to understand modern concepts, and generally slow on the uptake.  Some 23 years later, Congress enacted a special amendment to the ADEA--the aforementioned Older Workers Benefits Protection Act -- that required age discrimination waivers for covered employees to be written in simple language that told the recipient to consult an attorney, provided at least 21 days to consider the waiver, and gave an unprecedented 7-day period to revoke acceptance of a waiver.  These explicit terms are found nowhere else in employment discrimination law.  Why?  Presumably because Congress believed that older employees are easily misled, have difficulty understanding modern concepts, and are generally slow on the uptake.  In other words, the OWBPA confirms the stereotype that the ADEA states employers specifically may not have.

OWBPA waiver cases typically turn on whether the waiver agreement or release contains the express terms required by the statute.  The 8th Circuit recently reviewed one of these terms, that the agreement be "written in a manner calculated to be understood" by the waiving employee.  In this case, the employee signed a release agreement and then attempted to void the release and sue for age discrimination.  He argued that the waiver of age discrimination claims was invalid because a forfeiture provision in the agreement penalized the employee if the employer had to bring an action to enforce the agreement.  His theory was that there was a contradiction between the paragraphs of the agreement, and therefore the agreement was not written in a manner calculated to be understood by the employees at issue.  Never mind that the employee never raised a question concerning this supposed inconsistency, or otherwise expressed confusion about its terms, the court was to do a post hoc review to see if the language was intelligible.

But not so fast, the release also had an explicit exception to the penalty provisions for age discrimination cases.  The court unanimously found that the express removal of age discrimination claims from the penalty provisions meant that the release was compliant with OWBPA requirements, and therefore could be understood by the average waiving employee. 

The moral here, of course, is clear.  Follow the express requirements of the statute—they are a minimum for enforceability. 

posted Tuesday, May 30, 2006 3:31 PM by Lou Michels with 1 Comments

Pick-Up Lines

Employers in a number of businesses frequently confront the issue of dealing with employees with lifting limitations. The 8th Circuit recently decided a case that merged this problem with the thorny "regarded as disabled" prohibitions of the Americans with Disabilities Act.

The employee in this case injured his back and was limited to lifting no more than 50 lbs. on an occasional basis. Although the employer initially allowed the employee to return to work with this and other restrictions, it ultimately determined he could not perform the essential elements of his position and placed him on leave with instructions to either improve his strength or get a different diagnosis reducing some of the restrictions. The employee was unsuccessful in both regards within the timeframe specified by the company.  Following his termination, he filed suit under the ADA, alleging his employer regarded him as disabled even though he could perform the essential duties of his position.

Following the district court's grant of summary judgment, the 8th Circuit provided a thoughtful analysis of the issue. First noting that a restriction on lifting alone is not a major life limitation, the court specifically determined that the employer's perception that an employee could not perform a particular job is not the equivalent of a perception that the employee is disabled. Drawing the distinction between a perception of a limitation on a single or limited type of activity and a perception of a substantial limitation in a major life activity, the court noted the evidence showed the employer simply believed the plaintiff could not perform his job, and had no particular opinion regarding plaintiff's ability to perform activities outside of work. "Regarding an employee as having a limitation that is not itself a disability cannot constitute a perception of disability” (emphasis added).  Clear, concise, and yet this particular holding frequently escapes employers and lawyers in their analysis of ADA claims.

The court also made a telling point when it found that ADA's provisions on perceived disabilities was intended to combat the effects of "archaic attitudes, erroneous perceptions, and myths" that affect an employer's perception of its employees. Given that this employer imposed restrictions on the plaintiff based on the recommendations of physicians, the court held that there was no perception of a disability because the restrictions were not based upon archaic stereotypes about the disabled. This is an extremely important holding, because frequently plaintiffs will argue that any attempt at accommodation by an employer establishes a perception that the individual is disabled. The 8th Circuit meets this issue head on by noting the original intent of the ADA was to deal with stereotypes and not to prevent employers from doing the right thing in response to physicians' reports. Even the dissent generally agreed with this particular holding, although it criticized the majority for not paying enough attention to all the doctor reports which might have indicated that the plaintiff could work in other jobs at the facility.

I recommend this case for anyone dealing with a perception of disability issue -- the analysis is particularly useful for employers in the early stages of managing an ADA claim.

 

posted Tuesday, May 30, 2006 3:25 PM by Lou Michels with 3 Comments