Texas Lawyer (04/02/12) Michael P. Maslanka

Attorneys are just beginning to feel the effects of amendments to
the Americans With Disabilities Act that went into effect in 2009
and U.S. Equal Employment Opportunity Commission regulations that
went into effect last year. The ADA amendments ordered the courts
to interpret the law’s language on “substantial
limitation” in a pro-employee manner, expanding the number
of life activities covered by the law to include everything from
cell growth to communication. Experts say this means that
lawsuits that once were regularly dismissed are making their way
to juries, so that someone who claimed morbid obesity as a
disability, for instance, will pass the summary judgment phase if
it impacts his or her ability to walk, and under EEOC regulations
that interpret the amendments, cancer is considered a covered
disability. Lifting and bending are now deemed major life
activities, so a painful back condition is considered a
“substantial limitation.”

Managers should be trained to recognize that conditions that may
not seem to be disabilities could be interpreted by the courts as
such. They also should understand that employers generally win
cases in which a worker with a disability is not otherwise
qualified for the job, meaning that if they cannot be at work the
required number of hours per week, no reasonable accommodation
will change that. However, employers are obligated under law to
reasonably accommodate workers with disabilities, interacting
with them to develop a reasonable accommodation.

Business Management Daily (04/04/12)

When employers check applicants’ references, they must be
sure to take careful notes during those discussions and retain
those notes in case there is litigation. The recent case of
Romero v. State of North Carolina highlights that need. After
Janet Romero, who is white, applied and was rejected for two
internal promotions, she sued for race discrimination after two
African-American women were selected for the openings.

The supervisor explained to the court that when a choice between
candidates was close, he checked their references. Romero’s
ex-boss explained that he had reservations about her
communication skills, a key part of the new job. As the
supervisor’s notes showed, the other two candidates’
supervisors rated both of them highly, offering no reservations
about communication skills. The court said that even if Romero
met the other requirements, she was not the best qualified based
on her supervisor’s assessment, and that was a legitimate
reason for passing her over.