Disability discrimination law in Ohio is a mess

Let’s start with the obvious: it is illegal in Ohio for an employer to discriminate against an employee because of the employee’s disability. It is not always easy to figure out who this proscription covers, because Ohio’s statute (R.C. 4112) and the federal statute (the ADA) have their own respective definitions of what is a disability, which vary slightly:

     Ohio Law:

“Disability” means a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.

     Federal Law:

The term “disability” means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

Before Congress amended the ADA in 2009, there existed another key difference between its and Ohio’s respective definitions of “disability.” To be “regarded as” disabled under Ohio law, one has to be “regarded as having a physical or mental impairment.” Under the pre-ADAAA ADA, to be “regarded as” disabled, one had to be perceived as having an impairment that substantially limits one or more major life activities. By adding the “substantially limits” language, the federal definition was more restrictive.

Until recently, and despite these differences, Ohio law has almost always looked to federal law in interpreting its state disability discrimination statute. Last month, however, the rules changed. In Scalia v. Aldi, Inc. (12/21/11) [pdf] (discussed yesterday), one Ohio appellate court said the following:

Because the plain language of the definition of disability contained in R.C. 4112.01 differs in substance from the ADA, it is not appropriate to look to federal materials interpreting the pre-2008 ADA with respect to perceived disability claims under Ohio law.

The key language in that quote is “pre-2008 ADA.” The ADAAA amended the definition of “regarded as” disability. Under the amended ADA, it is now irrelevant whether the actual or perceived physical or mental condition substantially limits a major life activity:

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Thus, as the court pointed out in Scalia v. Aldi, Ohio law and federal law now match on this issue. Because Aldi terminated Scalia before Congress amended the ADA, the court applied the pre-amendment version of the statute, and left open the question of whether Ohio courts should look to federal caselaw interpreting the amended federal statute.

What does all this mean for Ohio employers? Disability discrimination law is a mess. Until the General Assembly passes legislation clarifying whether interpretations of “disability” under R.C. 4112 are supposed to mirror the ADA, companies doing business in Ohio would be best served following the most expansive interpretation of the definition of disability possible under either statute.

Resolve this year to properly handle no-fault attendance policies

For the uninitiated, a no-fault attendance policy terminates an employee who accumulates a pre-designated number of absences, regardless of the reason. For employers with high-volume, high-turnover operations, these policies make a lot of sense as the best tool to manage employee attendance. They are not, however, without their risk. For example, no-fault attendance policies cannot penalize absences that fall under the protective umbrella of statutes such as the FMLA or the ADA. As some employers have discovered, disciplining or firing disabled employees under a no-fault policy can be a costly error.

What about employees on leave for a workers’ comp injury? Can an employer count those absence under a no-fault policy? According to one recent Ohio appellate decision—Scalia v. Aldi, Inc. (12/21/11) [pdf]—the answer is a decided maybe. The court concluded that it is not per se retaliatory for an employer to terminate an employee on workers compensation leave pursuant to a facially neutral attendance policy. The court remanded the case back to the trial court to consider the issue of whether the employer—through the application of its attendance policy— terminated the plaintiff retaliation for instituting, pursuing, or testifying in a workers’ compensation proceeding.

What does this mean? This means that the plaintiff cannot rely solely on the attendance policy to prove retaliation, but must prove that the employer’s reliance on the attendance policy was a pretext for retaliation. A uniformly applied attendance policy will go a long way to disproving this pretext. As mentioned above, however, employers cannot apply attendance policies to penalize employees on leave for FMLA or ADA reasons. Will this lack of uniformity hurt employers in defending against workers’ comp retaliation cases? Or, can an employer lawfully treat FMLA-related and ADA-related absences differently than workers’ comp-related absences. Another court will have to answer these questions in another case. As this case illustrates, employers must tread very carefully when disciplining or terminating an employee who is absent from work because of work-related injury.

Does India have sex discrimination laws?

I have no idea if India has workplace sex discrimination laws. The following classified ad would suggest not:



Does anyone know if this is legal in India? Do I need to tell you that it is the absolute opposite of a best practice to list a position as one for a “Lady Computer Operator … preferably married”?

[Hat tip: my wife]

Did anyone resolve to be less connected in 2012?

Available at http://www.gocomics.com/nonsequitur/2011/12/26

Happy New Year!

Best of 2011: Numbers 2 and 1

   2.  “If I could press a button and instantly vaporize one sector of employment law?”

My answer—the Fair Labor Standards Act. The FLSA needs to go because compliance is impossible…. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

   1. The Employer’s Bill of Rights

After nearly 15 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees…. The only group in the country that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits. Employers, I feel your pain, and present the Employer’s Bill of Rights.

Best of 2011: Numbers 4 and 3

   4. Charlie Sheen and the National Labor Relations Board

CBS fired Charlie Sheen, in part because he made public disparaging comments about his boss. Charlie Sheen is a member of SAG. He also has his own “performance” problems. Should he file an unfair labor practice charge with the NLRB, based on his own protected, concerted activity—for example, calling his boss a “stupid, stupid little man and a pussy punk”; a “piece of  shit”; a “turd”; and a “clown”?

   3. NLRB says a “f**ktard” is different than a “d*ck” under Section 7

In American Medical Response, the NLRB argued that calling one’s boss a “d*ck” is “not so opprobrious as to lose the protections of the Act” because the “name-calling was not accompanied by any verbal or physical threats.” Yet, in Schulte, Roth & Zabel, the NLRB points out that Section 7 does not protect the “f**ktard” post. What’s the difference, other than the fact that your employees are now aware that they have rights under the National Labor Relations Act, and will run to the NLRB if fired or disciplined for their social media activities?

Best of 2011: Numbers 6 and 5

   6. EEOC sues for disabled shoplifter

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first.

   5. The most important thing you need to know about the ADAAA’s regulations

While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will…. In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.