Firing is Personal -- Don't Let it Be Discriminatory

The financial turmoil of recent months will unfortunately lead to job losses. Each day brings another announcement of large-scale layoffs. The end of a year typically brings terminations of employment as budgets are set for the following year. In this poor economic environment, which has been described as “once in a century,” employers may panic and permit or at least acquiesce in discriminatory decisions to fire employees. While the recession may force employers to reduce staff, individual executives and managers choose the person to fire. It is this unavoidably human element of the firing decisions that leads to claims of discrimination.

Age discrimination claims are already on the rise and this trend will likely continue. Another source of discrimination claims will be the revised Americans with Disabilities Act. Revisions that will take effect in 2009 will make it easier for employees to bring claims and survive employer attempts to dismiss the claims at an early stage. The ADA revisions includes the following key changes:

• Impairments that are not inactive or in remission (cancer, for example) can now qualify as a disability.

• A broader definition of “major life activity.” To qualify as a “disability,” an impairment must affect a “major life activity.” Major life activities now clearly will cover such things as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, working, eating, standing, lifting, bending, reading, concentrating, thinking and communicating. And more. The revised ADA provides that the list is not all encompassing and that courts should take a broad view of what constitutes a disability.

• In determining whether a disability exists, employers must now look at how an impairment limits major life activities without regard for whether medication or assistive devices would reduce or eliminate the adverse effects of the impairment. For example, an employee with diabetes could still be “disabled” and entitled to a reasonable accommodation even if the diabetic condition is well controlled by medication.

A recession is an impersonal economic event, but firing an employee is very personal from the view of both the decision-maker and the employee. Careful employers will make sure that termination decisions are scrutinized for discriminatory motivation. Careless employers will find themselves subject to lawsuits.

More on NFL Players With Permanent Disabilities

The Washington Post has a lengthy article "The Pain Game" that poses the question of whether the NFL and NFLPA will rethink their financial and moral obligations to former players who helped build the league but who are now disabled.

Former NFL Player Wins Disability Claim

In a rare victory for disabled former NFL players, Wilber Marshall, once a linebacker for the Washington Redskins, convinced a federal appeals court that the NFL's disability plan (the Plan) erred in determining the onset date for disability. The court found that Marshall was entitled to retroactive disability benefits for an additional eight month period plus his attorneys' fees.

Like any other employer sponsored disability plan, the NFL's plan is covered by ERISA. Because the Plan grants the Board the discretion to decide claims and interpret the plan, its decisions are usually upheld unless they are arbitrary and capricious. In this case, the Board used a physician's date of examination to fix the date of disability onset but ignored evidence in the report that the disability extended back at least eight months before the exam. The court held that such decision-making was an abuse of discretion.

Retired NFL players have long been unhappy with the NFLPA and the Plan. Only approximately two percent of former players are receiving disability benefits, which is a very small number considering the physical toll exacted on the players. At a House Judiciary Subcommittee hearing on the NFL's system for compensating retired players, it was noted that:

half of all players retire because of injury, sixty percent of players suffer a concussion, at least one quarter of players suffer multiple concussions, and nearly two-thirds suffer an injury serious enough to sideline them for at least half of a football season.

The retired players would like to see the NFL create a retirement and disability system that better protects players whose careers were shortened by injury and who now have little or no current capacity to earn a living.