Friday, October 24, 2008

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.