ADA Alert:  The EEOC is Alive and Kicking

Posted on: October 22, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

October 22, 2019

 

And sadly, so are disability and pregnancy discrimination. 

I receive press releases from the Equal Employment Opportunity Commission several times each week.  Most of them trumpet new lawsuits filed by the agency or settlements reached with employers it previously sued.  Every year there are some whoppers in terms of settlement dollars. There are also lots of smaller-dollar settlements that don’t make the non-EEOC news banners but have a big impact on the employer nonetheless.

So I got to wondering – how do the numbers stack up with regard to EEOC lawsuits relating to disability and pregnancy discrimination?  I took an unscientific count from the EEOC’s Newsroom  (ticking off the numbers on a piece of scratch paper).  Here’s what I found through October 20 of this year: 

  • The EEOC issued over 250 press releases relating to lawsuits it has filed or settled so far in 2019.
  • 113 (approx 45%) of these were lawsuits alleging disability or pregnancy discrimination and failure
    to accommodate (93 disability-related, 16 pregnancy-related, and 4 involving both).
  • Settlements ranged from $16,000 to $2,250,000 in damages awarded to the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit alleging failure to
    accommodate a cart pusher at a Walmart store. More on that below!

In addition to press releases throughout the year, the EEOC publishes its official tally of charge and litigation statistics annually, which you can review here.

Who is getting sued by the EEOC, and for what? 

Pretty much everyone, and for everything disability-related. 

  • The employers who are subjects of these press releases include hospitals and other medical providers,
    staffing agencies, retailers, grocery chains, entertainment and hospitality companies, manufacturers, fast
    food franchisees, service providers at correctional institutions, telecommunications and trucking companies,
    and on and on. (Lesson: Don’t assume your segment is “under the radar.”)  
  • These employers are getting the EEOC’s attention due to hiring practices, improper medical inquiries,
    failure to accommodate in all shapes and sizes, terminations, more terminations, inflexible leave policies, and
    disability harassment. Did I mention terminations?
  • The disabilities at issue include both mental and physical, although the physical disabilities seem to dominate
    this year: Hearing impairment, bad backs, Tourette syndrome, cancer, and so on.

Now I have to acknowledge that these are EEOC press releases – the agency selects the new or settled cases they want to publicize.  There are also EEOC lawsuits that get dismissed by the court or are adjudicated in favor of the employer.  Still, there are lessons to be learned from the cases the EEOC wants to share with the employer world. 

The ones that speak to me. 

Of the 113 news releases related to disability and/or pregnancy discrimination, here are a few that I found to be noteworthy: 

  • Changing policy. One resort and spa employer settled a lawsuit based on its refusal to allow a
    pregnant employee to wear open-toed shoes (not a safety issue) and to sit while working at the
    reception desk.  I ask you, was that worth it?
  • Inflexible leave policies continue to trip up employers – much to my surprise, as this has been
    an EEOC focus for years. See our blog post on the topic here.   In 2019 so far, at least 4 employers
    settled EEOC disability lawsuits based on the employer’s practice of terminating employees when
    the employees exhausted their FMLA or company medical leave rather than considering ADA
    accommodations (extended leave or otherwise).  These 4 settlements range from $175,000
    to $950,000.
  • Several cases involved failure to accommodate hearing impairments.  Employers need to avoid
    making rash decisions based on stereotypes about the hearing-impaired (remember
    the Case of the Deaf Lifeguard?) or any other disability, for that matter. Rather, consider the
    hearing impaired individual’s capabilities and if necessary, discuss special instructional, training,
    or communication methods as a reasonable accommodation.
  • Ending an existing accommodation. Finally, we must look at that $5.2 million jury verdict against
    Walmart.  This case involved a cart pusher, Paul Reina, whose job consisted primarily of clearing
    the parking lot of shopping carts.  Reina is deaf and has developmental, visual, and intellectual
    impairments.  Reina had worked for Walmart in this capacity from 1998 to 2015, always with the
    assistance of a job coach arranged by Reina’s family and paid for through a Medicaid program.
    In 2015 a new manager was assigned to the store where Reina worked.  A few days later Reina
    was put on administrative leave and never allowed to return to work.  To be fair, Walmart gave
    several reasons it felt Reina should no longer work as a cart pusher, including the argument that
    it was actually the job coach, not Reina, who was performing the job duties.  Nonetheless,
    Walmart discarded an accommodation that had been in place for 17 years. The jury found that
    this violated the ADA and awarded Reina $200,000 in actual damages and $5 million in
    punitive damages.

The consequences beyond dollars. 

An EEOC lawsuit imposes a substantial financial burden even if the employer wins the case, such as the costs of attorneys’ fees, document production, depositions, and other defense tasks. But there are also significant consequences beyond just the monetary issues. Consider also the time spent by your employees, management, and Human Resources personnel to prepare for and defend the lawsuit and the ensuing disruption of your business operations.

In addition, when the EEOC settles a case, it demands other non-monetary relief such as years of oversight by the agency, hiring an ADA consultant, revising ADA policies, posting notice of the settlement in the workplace, and agency-mandated layers of training for employees and management.

Pings for Employers. 

What should you do so that your company doesn’t appear in the EEOC’s 2020 press releases? How about:

  • Train your employees on the ADA and accommodations – why wait for the EEOC or a
    court to tell you to do it? If training heads off even one ADA misstep and EEOC lawsuit,
    it will have paid for itself.
  • Review your leave policies to ensure they don’t violate the ADA by imposing an inflexible
    limit to leave durations or requiring employees to be 100% healed before returning to work.
  • Take the interactive process to heart. Don’t make employment decisions based on your
    belief or a stereotype of what someone with a disability can or can’t do – discuss it with
    the employee and, if appropriate, get relevant medical support.
  • Be ready to change nonessential company rules and procedures as an accommodation.
    Arguments like “we’ve always done it that way” or “then everyone will want the same”
    just don’t win the day.
  • Use available resources to help you understand an employee’s impairment and capabilities.
    The Job Accommodation Network  has a multitude of articles on various impairments and
    possible accommodations, and the staff is available for discussion by telephone.  
  • Consider other resources specific to the employee’s disability. There are multiple websites
    for virtually every type of impairment that will help educate you about the employee’s
    situation.  But remember – again – to avoid those stereotypes and make your determinations
    on the basis of the employee’s specific capabilities and limitations.

 

MATRIX CAN HELP! Matrix’s ADA Advantage® leave management system and our dedicated ADA accommodation specialists help employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our servicesWe will initiate an ADA claim for your employee; conduct the medical intake and analysis if needed; manage the interactive process; assist in identifying reasonable accommodations; document the process; and more.  For assistance please contact your Matrix or Reliance Standard account manager or send an email to ping@matrixcos.com.

An ADA Tale of Vaccine Exemptions, Employer Notice, and the Interactive Process

Posted on: July 16, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

A recent case involving controversy about mandatory vaccines teaches two ADA lessons:

  • A doctor’s note may be sufficient notice to an employer of a disability and
    accommodation request.
  • If you do something for nondisabled employees, don’t deny the same thing for
    someone with a disability.

Aleka Ruggiero was a registered nurse working for Mount Nittany Medical Center (MNMC).  She suffered from severe anxiety and eosinophilic esophagitis.  These conditions limited her ability to perform certain life activities such as eating, sleeping, and engaging in social interactions. Despite her impairments, Aleka was able to perform her duties as a nurse at MNMC.

The vaccine brouhaha.  MNMC directed all clinical employees to receive a vaccine for tetanus, diphtheria, and pertussis (the TDAP vaccine) by May 15, 2015.  Aleka did not get the vaccine but faxed MNMC a note from her doctor stating Aleka was “medically exempt” from receiving the vaccine due to medical concerns.  MNMC asked the doctor to identify which of the eight contraindications listed by the vaccine manufacturer applied to Aleka to exempt her from receiving it.  The doctor responded that Aleka had severe anxiety about some of the potential side effects, especially in light of her history of allergies and eosinophilic esophagitis.  “Patient being terrified, I feel the risk of this TDAP injection outweighs the benefits.”  This note did not address which, if any, of the contraindications applied to Aleka.

MNMC sent a letter to Aleka stating that the information provided by the doctor was insufficient to excuse her from the vaccine and setting a new deadline for her to receive it.  Aleka suggested she be allowed to wear a mask at work – as she alleged other nurses were allowed to do to accommodate their refusals to receive the flu vaccine.  She also alleged that other MNMC employees were allowed to refuse the TDAP vaccine yet remain employed.  Aleka did not receive the vaccine by the new deadline and was terminated by MNMC.

A doctor’s note can be adequate notice.  Aleka sued, asserting a claim for failure to accommodate, among others. The trial court dismissed Aleka’s claim, holding that (1) she failed to allege that MNMC was on notice of her disability and request for accommodation and that, in any event, (2) MNMC had fulfilled its obligation to engage in the interactive process when it notified Aleka that it would exempt her from the vaccine if she suffered from any of the identified contraindications.

The Third Circuit reversed and reinstated Aleka’s claims.  As to the first issue, the court noted that an employer is not required to engage in the interactive process to identify an accommodation unless it is on notice of a disability and request for accommodation, but the threshold for adequate notice is fairly low.  Aleka’s request for exemption from the vaccine coupled with two doctor’s notes to the same effect (which included information about her medical conditions) were adequate to put MNMC on notice of both Aleka’s disability and her request for an accommodation.

Oh, that interactive process.  On the second issue, the court recognized that both the employer and the employee bear responsibility for identifying a reasonable accommodation.  A party who fails to communicate, either by initiation or response, may be acting in bad faith.  In this case, MNMC showed no signs of having considered Aleka’s request to wear a mask or offering to discuss available alternatives.  This was sufficient to raise the inference that MNMC had failed to engage properly in the interactive process and deprived Aleka of the individualized consideration to which she was entitled under the ADA.  According to the court, MNMC was not obligated to provide the accommodation requested by Aleka, “but it also could not simply reject the request and take no further action.”

Accordingly, the case was sent back to the trial court for further litigation proceedings.

Ruggiero v. Mount Nittany Medical Center  (3rd Cir. 2018).

Pings for Employers

This case is in early stages yet and the employer may still prevail, but more a more thoughtful and involved approach might have saved MNMC a lawsuit.

  • Be sure to engage in the interactive process. Even though an employee has an obligation to identify a
    reasonable and effective accommodation, this court and the EEOC will tell you that rejecting the employee’s
    suggestion, without more, is not “interactive.”
  • Consider what you do for employees in other situations. MNMC apparently felt that Aleka’s failure to identify
    a specific contraindication justified denying her request to avoid the vaccine and wear a mask.  And maybe, in
    litigation, they will be able to show facts that justified differing treatment of Aleka.  But how much better to allow
    her to wear a mask and avoid a lawsuit, or discuss with her their objections and avoid a lawsuit?

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

Lucky Employer Skates on ADA Liability: Complaints about Noisy Workplace Not Enough to Put Employer on Notice of Need for ADA Accommodation.

Posted on: October 30, 2017 1

By Marti Cardi, VP-Product Compliance Gail Cohen, Director-Employment Law/Compliance

Despite the common feeling that employers have the ADA deck stacked against them, a recent case shows that courts will still closely compare the facts of an ADA failure to accommodate claims against the legally required elements of such a claim.  It was a close call, but the co-employers prevailed when the employee did not raise enough racket about his mental condition to put the employers on notice of the need for an ADA accommodation.

Timothy Patton was an employee of a staffing company, Talascend.  He was assigned to work at its client, Jacobs Engineering.  He claimed to have been subjected to mockery and name-calling by co-workers and his supervisor because of his stutter.  He also complained about the noise in his work space to his supervisor and asked that he move him to a quieter area “so that [his] nerves would not affect
[his] stuttering.”  Patton also complained to Talascend (which offered to reassign him; he declined)
and emailed a lead engineer at Jacobs about taking time off from work due to his stress.

As a result of his stress, Patton had a panic attack while driving and caused a car accident.  He did not
return to work at Jacobs and instead, filed a complaint with the EEOC and the Louisiana state equivalent,
accusing Jacobs and Talascend of harassment and failure to accommodate his disability in
violation of the ADA.

The trial court granted summary judgment in favor of co-employers Jacobs and Talascend, and
the 5th Circuit Court of Appeals upheld this ruling.  It strikes me, however, as a lucky call for the
employers.  Let’s focus on Patton’s claim that Jacobs failed to accommodate him under the ADA.
The ADA requires an employer to make reasonable accommodation[s], absent undue hardship,
“to the known physical or mental limitations of an otherwise qualified individual with a disability.”
The question was whether Jacobs knew that Patton had a “disability” and was asking for an
accommodation when he complained about noise in his work area.

Patton had made numerous complaints linking his nerves and stuttering to the noise in the workplace
and asked to be moved to a quieter work location.  The court did not find this to be sufficient.
Rather, Patton needed to show that the limitations he experienced were the result of his disability,
and that Jacobs knew it.  In particular, in the case of a mental disability like Patton’s, “specificity in
attributing a work limitation to a disability is particularity important.”  Jacobs and Talascend could
not be expected to know of or understand Patton’s “childhood onset fluency disorder” without more
specific information from him.

With respect to the ADA hostile work environment claim, Jacobs again dodged a bullet.  The 5th Circuit
found there was enough evidence of harassment about Patton’s stuttering by quite a number of people
and over an extended period of time to allow the claim to be sent to a jury.  However, Patton had failed
to avail himself of both defendants’ anti-harassment policies and thus could not maintain his claim for
hostile work environment.

Patton v. Jacobs Engineering Group, Inc. and Talascend, LLC (5th Cir. October 24, 2017).  

Pings for employers:

  • There are no “magic words” for an employee to request an accommodation, but as the Patton
    case makes clear, the employee still needs to provide enough information for the employer to
    understand he is seeking an adjustment in his work conditions for a reason related to his disability.
  • Be wary, though! The outcome of this case was a lucky one for the employers.  If Patton had phrased
    his complaints just slightly different, or provided a bit more information about his condition or his
    need – or if the case had been determined by a different court – the outcome could have been
    a jury trial.  In that case, the evidence of harassment based on Patton’s stuttering could have
    had an impact on the entire case.
  • When in doubt about whether an employee is requesting an ADA accommodation, ask the employee,
    “How can I help?” This opens the dialog without assuming the employee has a disability or
    needs an accommodation.  Then, with someone like Patton, you can then explore what is causing
    his problem and what impact it has on his ability to work.
  • Make sure your policies provide employees with clear avenues (more than one!) of complaint in
    the event of discrimination, harassment, or retaliation – and that employees know about them.
    Although this case does not give us much factual detail, this type of policy saved the employers
    from liability because, apparently, Patton did not register his complaints in the correct manner
    or with the correct persons – probably the HR department.
  • Finally, as we always advise, train your supervisors so they know when someone might be asking
    for an ADA accommodation and to whom they need to direct the employee to start the
    interactive process.

 

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, contact us at ping@matrixcos.com.