Employment Law This Week: “Disparate Impact” Claims, Affirmative Action, Genetic Information, ADA Violation, Contractual Time Restrictions

Episode 8: Week of December 14, 2015

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We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week's topics ...

(1) Court Expands Purview of “Disparate Impact” Claims
Our top story this week: The Eleventh Circuit opens the door for “disparate impact” claims from applicants as well as employees. The court allowed an age bias claim to go forward against R.J. Reynolds Tobacco Company from an online job seeker who was rejected repeatedly for employment. Company guidelines allegedly directed hiring managers to target people who are “2-3 years out of college” and to “stay away from” applicants with “8–10 years” of experience. The plaintiff is arguing that these guidelines have a disparate impact on older workers and led the company to reject his application. David Garland from Epstein Becker Green goes into further detail. Read our Take 5 Newsletter on EEOC initiatives.

(2) Affirmative Action in Education
This week, the Supreme Court of the United States heard arguments in an affirmative action case, Fisher v. University of Texas. We will be following up in later episodes on issues surrounding applicants and affirmative action in employment, in light of the possible implications of this case.

(3) Fifth Circuit Clarifies What Constitutes Genetic Information
A paramedic with the San Antonio Fire Department sued his employer after he was placed on alternative duty for refusing to take a physical exam as part of the department’s wellness program. The Fifth Circuit ruled that the Genetic Information Nondiscrimination Act (GINA) prohibits tests that examine DNA and other structures within human cells, but not medical tests like those for cholesterol or blood counts. Read comments on GINA by Frank C. Morris, Jr.

(4) Alleged ADA Violation Challenged
Orion Energy Systems and the Equal Employment Opportunity Commission (EEOC) both moved for summary judgment in their ongoing wellness program penalty battle. Orion offered a wellness program through which the company paid the health insurance premiums of participating employees who took a medical exam. The plaintiff refused and therefore had to pay more than $400 per month to cover her insurance premiums, along with a $50 monthly penalty for refusing the fitness part of the program. Orion claims that the medical exam was voluntary, but the EEOC contends that the financial consequences made it involuntary and illegal under the Americans with Disabilities Act (ADA).

(5) Potential Limitations on Time Restrictions in Employment Contracts
The New Jersey Supreme Court could limit an employer’s right to put contractual time restrictions on employee suits. Nine months after his termination, the plaintiff, a former employee of the Raymour & Flanigan furniture chain, sued the company for alleged disability bias under the New Jersey Law Against Discrimination. Despite the two-year statute of limitations under the law, the employer included a six-month time limit in the plaintiff’s employment application. After the furniture company won a victory in the lower courts, the New Jersey Supreme Court is considering whether the time limit is enforceable. Increasingly, courts around the country are scrutinizing contract terms between employers and employees. We’ll keep watching this one to see how the high court rules.

(6) Tip of the Week
Heidi Hayden, Chief People Officer at the National September 11th Memorial & Museum, shares some advice on supervisor and HR roles in handling employee relations issues.

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