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ADA At 27: EEOC Marks Anniversary With A Flurry Of Lawsuits

July 31, 2017

By Michael G. McClory

Last week’s 27th anniversary of the Americans With Disabilities Act brought conflicting messages.  On the one hand, President Trump proclaimed July 26, 2017 as a day in celebration of the ADA.  He said that “Americans are justifiably proud of the ADA and its accomplishments,” which include ensuring that individuals with disabilities “have fair and just access to employment, government services, public accommodations, commercial facilities, and public transportation.”
On the other hand, last week EEOC, which is charged with enforcing Title I of the ADA, filed four federal lawsuits alleging that employers engaged in disability discrimination in violation of various provisions of the law.  The message from the agency’s flurry of filings appears to be that the ADA is still needed.
In the paragraphs below, The Bullard Edge is going to take a look at the “facts” of three of these lawsuits as reported by EEOC in press releases on three separate days.  After outlining the issues raised by EEOC we will offer a “best practices” observation for employers.
As a preliminary observation, we note that EEOC press releases must be read with a grain of salt. Specifically, as we have addressed previously, The Bullard Edge has some significant concerns about EEOC’s approach to press releases.  While the agency typically recites the law accurately (e.g., in saying that the ADA prohibits unlawful disability discrimination), EEOC often makes no effort to attach that law to facts (and the facts are necessary when implying that the law has been broken).
With that as an introduction, here are the summaries of three of the new lawsuits.
Case #1: Discrimination in the interview process
On July 25, 2017 EEOC announced that it had filed an ADA lawsuit against a “five and dime” store in Georgia.  According to EEOC’s press release, the store had an open sales associate position.  A frequent store shopper named Terri applied for the position and the store selected her for an interview.  When Terri arrived for her interview the manager recognized her and sent her away.  Reportedly, the manager told Terri that she could not work at the store “with that arm.”  Apparently Terri had incurred an injury to her arm several years ago in an automobile accident.  Terri complained to the manager’s superior, but never received an interview.  This prompted her to file an ADA claim with EEOC.
EEOC alleges that the store violated the ADA.  “Managers and owners cannot refuse to consider workers for open positions because of disabilities.”  EEOC states that its lawsuit “seeks back pay and compensatory and punitive damages” for Terri and “injunctive relief designed to prevent such discrimination in the future.”
For our purposes here, we will accept the allegations as true.  If true, the store might be found liable for discriminating against an individual with a disability in violation of 42 USC §12112, which provides that no employer “shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 
To comply with the law, and to avoid potential liability, an employer should make certain that its application and selection process does not screen out candidates because of disability.  The focus should be on the performance of the essential functions of the job.
  1. Prior to extending a job offer, the employer may not require an applicant to submit to a medical examination or to respond to medical inquiries.  Even in a situation such as the one described by EEOC (where an interviewing manager observes a potential disability) the ban on medical inquiries stays in place.  However, the interviewer may ask the candidate whether s/he will be able to perform all of the essential functions of the job with or without accommodation.  Further, the interviewer may also ask the candidate to describe how s/he would perform the essential functions.
  1. In the factual circumstance described by EEOC, the better approach would have been to proceed with the interview.  If Terri had been the best candidate, the store could have obtained relevant medical information during the period after making a conditional offer of employment and before starting work.
Case #2: Refusal to engage in the interactive process
On July 26, 2017 EEOC announced that it had filed an ADA lawsuit against a Mississippi hospital.  According to EEOC’s press release, a nurse named Lois took a leave of absence from work after injuring her arm and shoulder.  When Lois was released to return to work she was subject to a restriction on heavy lifting.  Reportedly, the hospital refused to allow Lois to return to work and did not engage in the interactive process with her to determine whether she could perform the essential functions of her job with or without accommodation.  Instead, the hospital terminated her employment.  Lois allegedly applied for a different nurse position that had no heavy lifting duties; however, the hospital awarded that position to another applicant.
EEOC alleges that the hospital violated the ADA.  “’Employers cannot fire an employee because of a medical impairment when it does not affect the employee's ability to perform the essential functions of her job,’ said EEOC Regional Attorney Marsha L. Rucker.  ‘This case should serve as a reminder that employers cannot rely on myths and fears about medical impairments or disabilities in denying qualified individuals employment opportunities.  To do so is a clear violation of federal law.’”  EEOC seeks remedies including reinstatement, back pay, emotional distress damages, punitive damages, and an injunction against future discrimination.
Once again for our purposes here we will accept the allegations as true.  If true, the hospital might be found liable for not providing a reasonable accommodation to the known disability of an employee in violation of 42 USC §12112(b).  Subsection (b)(5) provides that unlawful disability discrimination includes:
“(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant”.
The situation described by EEOC in its press release is fairly common.  Rather than assuming that an employee with a significant work-related restriction cannot perform the essential functions of the job, the best practice for the employer is to engage with the employee in the interactive process.  This is an information gathering process during which the employer may learn what the employee believes s/he needs and may obtain relevant information about an employee’s current medical condition.  This is the primary vehicle for identifying and achieving necessary and effective adjustments that will allow a disabled employee to perform the essential functions of his/her job.  Note that not every accommodation is going to be reasonable.  An accommodation is not required if it is not needed, would not be effective, or would constitute an undue hardship.
Case #3: Refusal to accommodate
On July 27, 2017 EEOC announced that it had filed an ADA lawsuit against a commercial truck dealership in New York.  According to EEOC’s press release, a delivery driver named John requested a medical leave for treatment related to osteoarthritis in his hip.  Due to bone-on-bone contact, John suffered excruciating pain and had difficulty walking, using stairs and sleeping.  Reportedly, the company terminated John rather than accommodate him.  Although the company cited customer complaints as the reason for termination, the lawsuit alleges that a month before the termination John’s supervisor had rated him “Exceptional” and included on the written review that John had received "no complaints from customers.  EEOC also notes that the supervisor, during the investigation of John’s complaint, told EEOC “that disabled people cannot work for [the company] because they would not be able to get the work done.”
EEOC alleges that the truck dealership violated the ADA by refusing to provide accommodation.  “If, instead of firing [John, the company] had allowed him to take reasonable leave, they would have kept an 'exceptional' employee and complied with federal law."  Moreover, EEOC’s press release added: “The ADA has protected disabled employees from workplace discrimination since 1990" and it "is disturbing that, in 2017, some employers still believe that Americans with disabilities have no place in their workforce.”  EEOC seeks remedies including lost wages, compensatory and punitive damages, and an injunction against future discrimination.
Once again for our purposes here we will accept the allegations as true.  If true, the truck dealership might be found liable for not providing a reasonable accommodation to the known disability of an employee.
This lawsuit is similar to the claim against the hospital described above.  In both cases the allegation is that the employer failed to engage in the interactive process regarding potential reasonable accommodations and instead terminated the employee seeking accommodation.  We refer you to the discussion above regarding issues.
The wrinkle in John’s case that is different is the request for a medical leave of absence for surgery.  Medical leave is a form of accommodation that may be reasonable.  As defined at 42 USC §12111, “reasonable accommodation” may include “part-time or modified work schedules” ~ leave is a modified work schedule. 
In this case, the best practice for an employer in the truck dealership’s position would be to engage in the interactive process.  It would want to know the medically anticipated duration of John’s leave and whether he would be subject to work-related limitations upon his release to return to the job.  Further, the truck dealership would then need to evaluate whether it would be reasonable to grant a medical leave of the requested duration.  If not, the truck dealership should be prepared to articulate the amount of leave that would be reasonable and to explain the undue hardship that would result from a leave in excess of the reasonable amount.
Although the EEOC’s press releases fail to show it, the issues raised in them are factually nuanced and continue to present employers with compliance challenges.  We hope these summaries have highlighted some of the best practice approaches that can help with compliance.
Best regards,
The Bullard Edge

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