Two times already, the Supreme Court denied certiorari on the question of whether outside job applicants can use the disparate impact theory to challenge age discrimination under Section 4(a)(2) of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 623(a)(2) (2016). In both cases, en banc U.S. Courts of Appeals vacated panel decisions recognizing a disparate impact age claim by an outside applicant. See Kleber v. CareFusion Corp., 888 F.3d 868 (7th Cir. 2018) (AARP Foundation attorneys represented Mr. Kleber), vacated and contrary result entered on reh’g en banc, 914 F.3d 480 (7th Cir. 2019), cert. denied, 140 S. Ct. 306 (2019), and Villarreal v. R.J. Reynolds Tobacco Co., 806 F.3d 1288 (11th Cir. 2015), vacated and contrary result entered on reh’g en banc, 839 F.3d 958 (11th Cir. 2016), cert. denied, 137 S. Ct. 2292 (2017). In light of the divergent opinions on this issue, we are likely one circuit court opinion away from the Court having to decide this incredibly important issue for older workers. The only development that might hinder what seems like an inevitable cert grant is Congressional action. On July 15, 2021, the House Education and Labor Committee passed the Protecting Older Job Applicants Act that, if enacted, would amend Section 4(a)(2) of the ADEA to ensure that older job applicants could bring disparate impact claims to challenge unreasonable hiring practices that harm them.
As the COVID-19 pandemic continues to pose health challenges for many Americans, more public and private employers are requiring employees working in person to be vaccinated, wear a mask, or get tested on a regular basis. While challenges to employers mandating employee vaccinations have not yet reached the U.S. Courts of Appeal, see, e.g., Bridges v. Houston Methodist Hosp., No. CV H-21-1774, 2021 WL 2399994, at *1 (S.D. Tex. June 12, 2021) (dismissing wrongful discharge claims by 117 hospital employees alleging that their employer's vaccination requirement violated their right to refuse to comply with dangerous and experimental medical procedures), the intensity of opposition to such measures suggests that such controversies may ultimately end up being resolved by the Supreme Court.
The U.S. Equal Employment Opportunities Commission (EEOC) has issued guidance indicating that mandatory employer vaccination requirements would not violate the employment provisions (Title I) of the Americans with Disabilities Act of 1990 (ADA) and its analog, the Rehabilitation Act of 1973. See U.S. Equal Emp. Opportunity Comm’n, EEOC Issues Updated COVID-19 Technical Assistance (May 28, 2021). The EEOC continues to issue updated versions of this guidance, which so far has maintained the position that mandatory vaccination with appropriate exceptions is lawful under the ADA and other federal employment laws.
Another disability rights employment issue likely to generate controversy in the wake of the COVID-19 crisis that may be headed to the Supreme Court is the question of when working remotely is a “reasonable accommodation” under the ADA and the Rehabilitation Act. Prior to the pandemic, several circuit courts issued rulings reflecting the perspective that a relatively high bar exists for an employee to show that in-person attendance is anything other than an essential job function and remote work is a reasonable accommodation. See, e.g., Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 818 (6th Cir. 2020) (affirming grant of summary judgment to employer on employee’s ADA claim of failure to accommodate shoulder injury by refusing to permit work from home three days per week; faulting plaintiff for failing to demonstrate how work from home was reasonable and medically necessary). It is unclear how the experience of the past year may impact future cases seeking remote work accommodations.