Good News on the ADA--One More Court Rules the Amendments Are Not Retroactive
Earlier this year, we identified the Amendments to the ADA--known as the "ADAAA" --as one of the 
top human resources challenges of 2009. The amendments became effective January 1, 2009. One of the most significant changes in the new law as compared to the old ADA concerns the definition of "disability". One of Congress intentions in the ADAAA was to overrule several U.S. Supreme Court cases which had interpreted the meaning of "disability" in a narrow way. The Court's interpretation of "disability" under the old ADA caused many plaintiffs to have their discrimination suits dismissed because they were deemed as not having a disability. Under the new law, most lawyers believe it will be much easier for a plaintiff to qualify as disabled.
One question that remained unanswered when the law became effective was whether the new definition of disability applied to alleged acts of discrimination that occurred before January 1, 2009.
Two U.S. Circuit Courts of Appeal have now answered that question: the Fifth and D.C. Circuits. In both cases, the courts held the ADAAA was not retroactive, and therefore applied only to alleged discrimination occurring after January 1, 2009. Thus, for the cases based upon alleged discrimination before that date, the old standards still apply. While other Circuits, including the Eighth, have not weighed in on this subject, it is doubtful any court will apply the law retroactively. Unless Congress expressly mandates retroactive application of a law, which it did not in the case of the ADAAA, there is a presumption that it applies only to events that occur after the law becomes effective.
In addition to decisions on this issue from the courts, it will be wise to keep track of the EEOC's new rules interpreting the ADAAA, which are still being developed. The EEOC takes the position that the law itself is not retroactive, but it may contend that its regulations interpreting the law will be retroactive to January 1, 2009. Because courts often defer to the EEOC's interpretation the anti-discrimination laws, the EEOC's rules are important to monitor.
We will keep you posted on decisions from other Circuits, as well as developments in the EEOC, addressing this important issue.
Hat Tip: World of Work
There is an interesting debate occurring in the legal blogosphere concerning 
are becoming a growing liability concern for employers. Offensive and inappropriate texts are increasingly being used as evidence in sexual harassment cases. According to the article, the main culprit is male bosses sending scandalous messages to female subordinates asking them on dates or making promises in return for sexual favors. What used to be a "he said she said" case can now be proved with electronic evidence.