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.114 More recently Congressenacted the Americans with Disabilities Act of 1990.115This statute provides for both prohibitions against discriminationbecause of handicaps in connection with public facilities as wellas in the employment relationship.With regard to the latter, the law, which became effective in 1992, prohibits employers fromdiscriminating against a "qualified individual with a disability." Anindividual with a disability is defined as one who possessed aphysical or mental impairment that substantially limits one ormore major life activities, a record of such an impairment or onewho is regarded as having such an impairment.Specificallyexcluded from such a definition is homosexuality, bisexuality,transvestites, transsexuals, pedophiles, exhibitionists, voyeurists,and gender identity disorders not resulting from physicalimpairments.Also excluded are compulsive gamblers,kleptomaniacs, pyromaniacs, and those who are currentlyengaged in the use of illegal drugs.Employers may holdalcoholics to the same qualifications and job performancestandards aspage pagePage 201other employees, even if their unsatisfactory performance isrelated to alcoholism.It is unclear whether such so-called voluntary behavior assmoking or obesity is within this statute's definition of disability.Similarly unresolved are issues relating to so-called predictivedisabilities, such as lower back problems which could cause ahandicap in the future.An employer must make a reasonableaccommodation to the disability, although the precise standardapplicable to this term remains to be determined.The secretary of health and human services is required to publisha list of infectious and communicable diseases that can betransmitted through the handling of food and employees whohave such diseases may be transferred if the danger to publichealth and safety cannot be eliminated by some otherreasonable accommodation.The obvious focus here is AIDS, eventhough there is no current evidence to the effect that AIDS canbe transmitted through the handling of food or beverages.The remedial scheme for employment discrimination cases setforth in both the Civil Rights Act of 1964 and the Civil Rights Actof 1991 applies to the Americans with Disabilities Act of 1990.That is to say, punitive and compensatory damages are availableas well as more traditional relief, although such damages arecapped.The EEOC has jurisdiction over disability claims ofdiscrimination. Three years before the passage of ADA statute, the SupremeCourt held that an employee with a physical impairment resultingfrom the contagious disease of tuberculosis may be consideredto be handicapped within the meaning of the Rehabilitation Act.116Age DiscriminationThe Age Discrimination in Employment Act of 1967,117 overwhich the EEOC also has jurisdiction now, prohibitsdiscrimination against workers between 40 and 70 on account ofage.Discrimination on the basis of years of service designed todeprive an employee of pension benefits is not agediscrimination.118 Either the EEOC or private plaintiffs maypage pagePage 202bring an action for damages suffered, and for additional monies ifthe violation was willful.Willful discrimination exists where ".the employer either knew or showed reckless disregard for thematter of whether its conduct was prohibited by thestatuteapplies to all disparate treatment cases under the ADEA.Once a 'willful' violation has been shown, the employee need notadditionally demonstrate that the employer's conduct wasoutrageous, or provide direct evidence of the employer'smotivation, or prove that age was the predominant rather than adeterminative factor in the employment decision." 119 Exceptfor executives in high policy positions and university facultymembers (this exemption has been phased out as of 1993),retirement programs that force retirement before 70 areunlawful.120 The Supreme Court has held that a provision of theMissouri Constitution requiring appointed state judges to retireat age 70 does not violate either the ADEA or the EqualProtection Clause of the Constitution.121 A difficulty here is thatage, like handicap, affects the ability of some people to function.But according to Business Week, "few [employers] complainedabout incompetent old workers, and only a small fraction of olderpeople have opted to keep working anyway."122In yet another 1989 ruling by the high court, it was held thatalthough the Act allows discriminatory benefits under a bona fideemployee benefits plan unless it is a substitute for age discrimination, a benefits scheme adopted prior to the Act couldnot be used as a subterfuge by the employer trying to avoidit
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