How’s your employment law history knowledge?
Happy Memorial Day weekend, everybody! In honor of the occasion, see how much you remember about these old federal employment laws that we deal with every day. As always, answers immediately follow the questions, so you can cheat like a house afire and no one will be the wiser. And if you make it to the end, you’ll get a lovely Memorial Participation Trophy.
Ready? Here we go!
No. 1: Which of the following employment laws or directives were signed by President Lyndon B. Johnson?
A. The Americans with Disabilities Act
B. Title VII
C. Executive Order 11246, which requires federal contractors to have affirmative action plans for females and minorities
D. The Rehabilitation Act of 1973
E. The Age Discrimination in Employment Act
F. All of the above
G. B, C, and E.
ANSWER: G. LBJ was a busy guy, but he left office in 1968, so he was gone too soon to have anything to do with the ADA or the Rehabilitation Act. But he’s the one who gave us Title VII, E.O. 11246, and the ADEA. (Title VII also created the Equal Employment Opportunity Commission.) Now that I think about it, I guess I’d be out of a job if it hadn’t been for LBJ. Here is President Johnson shaking hands with the Rev. Dr. Martin Luther King, Jr., right after signing Title VII into law:
No. 2: Before the ADA Amendments Act took effect on January 1, 2009, ADA lawsuits were being dismissed right and left by the courts. What was it about the “old” ADA that prevented employees with disabilities from getting a break?
A. Employers were better at making reasonable accommodations before 2009.
B. Employers hardly ever discriminated against individuals with disabilities before 2009.
C. The definition of “disability” under the ADA before 2009 was very strict, and most people with medical conditions couldn’t meet it.
D. The federal courts were ultra-conservative before 2009, but after President Obama took office, he appointed liberal judges to the bench, so ADA claims were able to get to juries after 2009.
ANSWER: C. Before the Amendments Act was passed, a person with a “disability” had to be significantly limited in comparison to the general population. If the person took medication that relieved symptoms of the condition, then the person didn’t have a disability. If the person had a condition that was asymptomatic or in remission, then the person didn’t have a disability. The Amendments Act changed all that by saying — among other things — that it was the underlying condition that was relevant, and that “mitigating measures” could not be taken into account. As a result, it’s much easier now for ADA claims to survive summary judgment and get to juries.
Bonus question: The ADA Amendments Act was signed into law by President Obama.
ANSWER: False. It was signed into law by President George W. Bush in late 2008, right before President Obama began his first term. W’s dad, President George H.W. Bush, signed the original ADA into law in 1990.
No. 3: According to legend, one of the categories protected by Title VII was added as a “poison pill” intended to ensure its defeat. Which category was “poison” in 1964?
C. National Origin
F. All of the above
ANSWER: B. It was unfathomable — at least to some — in 1964 that women should have equal rights in the workplace. The story is that Rep. Howard W. Smith (D-Va.), a segregationist, sought to defeat all of Title VII by adding “sex” as a protected category. But I call it a legend, because some sources say that Rep. Smith was actually a bit of a feminist himself and sincerely supported equal rights for women. (Although apparently not for anybody else.) In any event, he’s the guy who got “sex” included in Title VII.
No. 4: What was the first minimum wage established by the Fair Labor Standards Act when President Franklin D. Roosevelt signed it into law in 1938?
A. $7.25 an hour
B. $1.50 an hour
C. $5.25 an hour
D. $0.25 an hour
ANSWER: D. The federal minimum wage in the original FLSA was a paltry two bits an hour . . . but no worries, because it was scheduled to increase all the way to 40 cents — in 1945. The new law, in its original form, also required overtime pay after 44 hours in a workweek, and prohibited “oppressive” child labor.
No. 5: The Civil Rights Act of 1866 included 42 U.S.C. Section 1981, which gave all male citizens the right to “make and enforce contracts” regardless of their race or “previous condition of servitude,” and is still used today in race, color, and national origin discrimination cases (and women can sue under it now, too!). Which president signed the Act into law?
A. Abraham Lincoln
B. James Buchanan
C. Andrew Johnson
D. Ulysses S. Grant
ANSWER: E. President Andrew Johnson vetoed it, but then Congress overrode his veto, so it became law without him.
No. 6: When the U.S. Department of Labor issued regulations interpreting the Family and Medical Leave Act, which President Bill Clinton signed into law in 1993, what currently-qualifying reasons for leave were NOT included?
A. Military leave (qualifying exigency and military caregiver)
B. Substance abuse treatment
C. Cosmetic surgery that requires an inpatient stay
D. A period of incapacity of more than three calendar days, plus one visit to a health care provider and a continuing course of treatment
E. Prenatal care
ANSWER: A. The military leave provisions were not added to the FMLA until much later, in 2008, when Congress amended the law.
6-7 correct: Great job! You have a Ph.D. in employment law history!
4-5 correct: Very good! You have a master’s, and could get into a Ph.D. program if you felt like it.
2-3 correct: Well, basket-weaving is a perfectly fine college major.
0-1 correct: Ugh. High school delinquent.
Just kidding! You all did great! And here is that Memorial Participation Trophy I promised you:
Happy Memorial Day weekend, and a sincere thank you to all of those who gave their lives serving our country.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.