If you cannot view this email, click here.

SOLO Masthead logo
American Bar Association - Defending Liberty, Pursuing Justice


Vol. 15, No. 2




What You Need to Know about Title VII and the ADA

With layoff–fueled unemployment hitting record levels amid a severe economic downturn, more jobless workers are filing discrimination suits than ever. According to the Washington Post, private sector job bias charges filed with the EEOC in 2008 were up 15 percent from 2007 and up 26 percent from 2006. That trend is expected to accelerate in 2009.

Meanwhile, recent legislation and court decisions have helped pave the way for more discrimination lawsuits. In 2005, the Supreme Court held that victims of age discrimination need not prove that a layoff was intentionally discriminatory, only that it had a “disparate impact” on older workers. In 2008, Congress widened the scope of disabilities protected by the Americans with Disabilities Act to include employees who depend on medication or devices even if they ameliorate disabilities completely. In 2009, the second bill signed into law by President Obama overturned a draconian Supreme Court decision that had held that Equal Pay Act lawsuits could only be brought by employees who file EEOC charges within 180 days of each discriminatory paycheck, regardless of actual knowledge or discovery of pay disparities.

The panoply of federal antidiscrimination laws—the Age Discrimination in Employment Act (age discrimination), the Equal Pay Act (gender pay discrimination), Title VII of the Civil Rights Act of 1964 (race, color, sex, religion, and national origin discrimination), and the Americans with Disabilities Act (disability discrimination)—is too broad to address here. However, if you are getting inquiries from clients with discrimination claims, focusing on Title VII and the ADA (which piggybacks onto and incorporates the enforcement powers, remedies, and procedures of Title VII) is advisable given they together encompass the vast majority of discrimination complaints filed with the EEOC each year (i.e., race, sex, and disability discrimination).

Here are the some of the preliminary items you should ascertain as you evaluate potential claims under Title VII and/or the ADA:

Covered Employers. How big is the employer? The provisions of Title VII and the ADA only apply to employers with 15 or more employees.

Covered Employees. Is the claimant covered by Title VII and the ADA? Title VII extends protections to employees and job applicants but not independent contractors. Just because an employer has labeled someone an independent contractor, however, does not make it so. There are many tests to determine whether someone is an employee or an independent contractor. The ADA covers the same employees as Title VII, but further requires employees to have a mental or physical impairment that substantially limits a major life activity—such as sleeping, eating, walking, etc. or have a record or history of such impairment (or be perceived by the employer to have such an impairment). At the same time, claimants must not be so disabled that they are unable to perform the “essential functions” of their job with (or without) accommodation. An amendment that took effect on January 1, 2009, extends ADA protections to disabled workers who rely on medication or devices, even if they ameliorate disabilities completely.

Covered Actions. Did the employer do something that is worthy of a lawsuit? Adverse employment actions on which a plaintiff may sue need not rise to the level of job termination. Any action reasonably likely to deter employees from engaging in protected activity can be litigated. This federal deterrence standard extends protections to a broader spectrum of activities than some state antidiscrimination laws. In Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004), the court ruled that an employer&rsquo's failure to turn exculpatory records over to a government agency investigating a former employee constituted an “adverse employment action” that could form the basis for an ADA discrimination lawsuit.

Damage Caps. Do the damages justify bringing suit? In cases where compensatory and/or punitive damages are available, Title VII and the ADA impose caps on the combined sum of those damages (excluding lost wages) ranging from $50,000 to $300,000 depending on the employer&rsquo's size. Attorney fees are also available to prevailing plaintiffs under both statutes, but at the court&rsquo's discretion.

EEOC Charge Requirement. Have statutes of limitations expired? Title VII and the ADA require employees to file a charge with the EEOC within 180 days of the last discriminatory act before they can bring a civil suit. Employees have the option of filing a charge with their state antidiscrimination agency, in which case they have to file a charge with the EEOC within the earlier of 300 days after the last discriminatory act or 30 days after notice that the state agency has terminated proceedings. Some state antidiscrimination agencies have a “work–sharing agreement” with the EEOC such that filing with one is automatically deemed a filing with the other.

Individual Liability. Is individual liability important to the claimant? Most courts hold that supervisors and coworkers who do not qualify as “employers” may not be held individually liable for violations of Title VII or the ADA.

State versus Federal Laws. Are state antidiscrimination laws better? Some state antidiscrimination laws afford greater protections to workers than Title VII and the ADA. For instance, they may have no damage caps, longer charge filing periods, mandatory attorney fees, broader coverage of employers and employees, etc. State antidiscrimination laws are preempted by their federal counterparts only in the rare event there is a conflict. Thus, in such states, claimants may be better off filing suit under their state’s laws. Another thing to consider—the inclusion of Title VII and ADA claims in your state court complaint may introduce the risk of federal question removal to federal court; not necessarily a bad thing depending on your jurisdiction, not to mention local docket conditions and backlogs, but certainly something to consider.

Eugene Lee practices employment law in his solo firm in Los Angeles, California. Contact him at or visit his blog at www.CALaborLaw.com.

© Copyright 2009, American Bar Association.