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By Bradley T. Adler and Jonathan J. Kandel
The Equal Employment Opportunity Commission (“EEOC”) recently updated its “Equal Employment is the Law” poster. All employers subject to federal antidiscrimination statutes like Title VII of the Civil Rights Act, the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and the Genetic Information Nondiscrimination Act (“GINA”) are now required to post the new poster. This effectively includes all companies with fifteen or more employees.
The new poster encompasses the recent amendments to the ADA and the new Genetic Information Nondiscrimination Act.
On January 1, 2009 the ADA Amendments Act (“ADAAA”) became effective, significantly changing the interpretation of a disability under the Act. First, while the ADAAA does not change the definition of disability, it mandates that the term “be construed in favor of broad coverage of individuals.” Second, the ADAAA makes major changes to the interpretation of the Act, prohibiting courts from considering mitigating measures, except eyeglasses and contact lenses and permitting courts to consider impairments that are episodic or in remission. Third, the law lowers the threshold for “regarded as” claims by only requiring proof that the employer perceived the employee as suffering from an impairment. Finally, the ADAAA includes major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions, as major life activities.
On November 21, 2009, the Genetic Information Nondiscrimination Act became effective. Title II of this Act prohibits discrimination in employment on the basis of “genetic information,” which means “information about such individual’s genetic tests, the genetic tests of family members of such individual, and the manifestation of a disease or disorder in family members of such individual.” The law also makes it unlawful to retaliate against an employee that has opposed genetic discrimination. Furthermore, this Act prohibits employers from acquiring genetic information from employees, except in very limited circumstances.
Employers may want to consider either revising their current EEO policy to include a reference to genetic information, or adding a GINA policy.
Employers can download a supplemental poster to post alongside the old, 2002 version. In addition, employers can download a new 2009 version to replace the older one. Finally, posters can be ordered from the EEOC Clearinghouse. All three options are available athttp://www1.eeoc.gov/employers/poster.cfm.