ADA Amendments of 2008
Decisions by federal courts, including the U.S. Supreme Court’s Sutton decision, limited the definition of “disability” under the Americans with Disabilities Act. This precluded protection of individuals with certain conditions, such as diabetes or epilepsy, that can be mitigated, e.g., through medication. Legislation entitled the "ADA Restoration Act" was introduced in Congress that would have defined "disability" in such an expansive way that almost everyone would have fit the definition. The ADA Amendments Act, which was ultimately enacted by Congress was a negotiated alternative to the more expansive legislation.
Age Discrimination
Under Title VII of the Civil Rights Act of 1964, a plaintiff can prevail in a discrimination case by establishing that the employer had a “mixed motive” or that an unlawful consideration (e.g., gender, race, nationality, color, religion) was “a motivating factor” in the employer’s decision to take an adverse employment action. Recently, however, the Supreme Court ruled that the motivating factor standard is insufficient to establish unlawful discrimination under the Age Discrimination in Employment Act (ADEA), but instead, a plaintiff must establish that age was a “determining factor” in an employer’s decision.
Comparable Worth
The "pay gap" between the average pay of men and women is attributed by some to widespread gender discrimination that current laws are inadequate in preventing. “Comparable worth” would address this by requiring that employees in positions that are of equal value to the employer and society receive equivalent pay.
Elimination of Caps in Discrimination Awards
The Civil Rights Act of 1991 added compensatory and punitive damage awards to discrimination cases brought under Title VII of the Civil Rights Act, and the Americans With Disabilities Act. However, to ensure against exorbitant jury awards, the amount of available damages was capped at $50,000 to $300,000, depending on the size of the employer. Plaintiffs who bring racial discrimination claims under the Civil Rights Act of 1866 may be awarded unlimited damages.
Employment Arbitration Agreements
Many employers use alternative dispute resolution (ADR) procedures so that they and their employees may avoid costly and lengthy litigation to resolve employment disputes. One ADR tool is an agreement between the employer and the employee before any dispute arises that claims of discrimination and other alleged violations of law will be resolved through third party arbitration that will be binding on both parties. Legislation has been introduced to render such agreements unenforceable.
Employment Non-Discrimination Act
Congress is considering legislation—the Employment Non-Discrimination Act (ENDA)—that would prohibit employment discrimination on the basis of sexual orientation or gender identity.
Genetic Information Non-Discrimination Act
With the mapping of the human genome, genetic testing is being encouraged to enable individuals to take steps to prevent particular disorders. Although there is no evidence of discrimination by employers on the basis of genetic information, Congress believed it necessary to enact the Genetic Information Nondiscrimination Act (GINA) so that individuals can undergo testing without fearing that the information from the tests will influence employment and insurance decisions.
Pay Discrimination Litigation
Statutes of limitations, which exist for virtually all criminal and civil laws, impose restrictions on the time frame within which a case may be brought against a defendant. Among other reasons, this is to ensure the availability of credible evidence. Employment discrimination claims, including allegations of pay discrimination, must be filed with the EEOC within 180 days (300 in the case of a state agency) of the act of discrimination. The Lilly Ledbetter Fair Pay Act of 2009, which Congress passed earlier this year, extends the statute of limitations for most employment discrimination claims indefinitely.
The Paycheck Fairness Act, a current agenda item for Democratic leaders in Congress and the administration, would amend the Equal Pay Act to make is easier for lawsuits to be initiated and successful under the Equal Pay Act, while substantially increasing the damages available through such litigation.