By Marti Cardi, VP-Product Compliance, & Gail Cohen, Director, Compliance & Employment Law
When the EEOC asks you for the names and contact information of employees who worked with the charging party, what should you do? Connecticut employer Day & Zimmerman NPS, Inc. (DZNPS) recently learned what NOT to do. Instead of granting DZNPS’s motion to dismiss the charging party’s ADA interference and retaliations claims, the parties will proceed in court.
DZNPS employed a number of electricians at its Millstone Power Station. In September 2012, DZNPS hired Gregory Marsh. Just one month later, Marsh filed an EEOC charge alleging disability discrimination, specifically, failure to reasonably accommodate his disability and unlawful termination of his employment. As part of its investigation of Marsh’s charge, the EEOC requested DZNPS to provide the names and contact information of the other electricians who worked with Marsh at Millstone in the fall of 2012.
After receiving the EEOC’s request for information, DZNPS sent a letter to 146 individuals who worked with Marsh in the fall of 2012. In its letter DZNPS identified Marsh by name, stated he had filed a charge of disability discrimination, identified the restrictions on his ability to work, and specified the accommodation he had requested DZNPS to provide. The letter also told the 146 current and former employees that they had the right to refuse to speak with the EEOC investigator, and offered to have counsel for DZNPS present if they chose to do so. The EEOC issued a reasonable cause finding and, when conciliation efforts were unsuccessful, filed suit in which they contended DZNPS interfered with the ADA rights of the 146 letter recipients, and that the letter constituted retaliation against Marsh for the filing of his EEOC charge.
DZNPS filed a motion to dismiss the retaliation charge. In denying the motion, the court ruled that disclosing the substance of Marsh’s charge, including the work restrictions he had and the accommodation he had requested, could constitute retaliatory actions.
DZNPS also requested dismissal of the EEOC’s claim that the letter interfered with the ADA rights of the 146 recipients. The court again sided with the EEOC, allowing it to proceed on this claim because a reasonable jury could conclude the letter was “intended to coerce, intimidate, threaten or interfere” with the individuals’ exercise of those rights, specifically communicating with the EEOC regarding unlawful disability discrimination. The court explained that if the “employer’s actions have a reasonable tendency to coerce or intimidate,” that’s enough. For an interference claim to proceed, it isn’t required that the employees actually were intimidated or coerced by that conduct.
Pings for Employers: It is understandable that an employer would want to communicate with potential witnesses who may be contacted by the EEOC or a government agency about a pending investigation, but there is clearly a right way to do so. The DZNPS case illustrates what an employer SHOULD NOT do, namely:
- Don’t identify the charging party by name
- Don’t disclose confidential medical information
- Don’t disclose the nature of the charge
Frankly, none of this is necessary. Rather, the employer can send a simple communication letting the recipients know:
- The company has been required to provide employee names and contact information to the EEOC in connection with an investigation of a charge filed by a former employee.
- As a result, the employee may be contacted by an EEOC investigator.
- If the employee has questions, he or she can contact a specified person at the company who may be able to answer questions. Although the company can’t provide details about the name of the Charging Party or the nature of his or her claims, but it can help the employee to understand the EEOC process.
MATRIX CAN HELP! As shown by the case above, the Americans with Disabilities Act presents many challenges for employers. Addressing accommodation requests doesn’t have to be one of them. Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process and reduce the risk of being involved in a lawsuit for failure to accommodate. We will initiate an ADA claim for your employee, conduct the medical intake if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at 1-800-866-2301 to learn more about these services.