by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
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 failureto 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 toaccommodate 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, fastfood 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, anddisability harassment. Did I mention terminations?
- The disabilities at issue include both mental and physical, although the physical disabilities seem to dominatethis 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 apregnant employee to wear open-toed shoes (not a safety issue) and to sit while working at thereception desk. I ask you, was that worth it?
- Inflexible leave policies continue to trip up employers – much to my surprise, as this has beenan EEOC focus for years. See our blog post on the topic here. In 2019 so far, at least 4 employerssettled EEOC disability lawsuits based on the employer’s practice of terminating employees whenthe employees exhausted their FMLA or company medical leave rather than considering ADAaccommodations (extended leave or otherwise). These 4 settlements range from $175,000to $950,000.
- Several cases involved failure to accommodate hearing impairments. Employers need to avoidmaking rash decisions based on stereotypes about the hearing-impaired (rememberthe Case of the Deaf Lifeguard?) or any other disability, for that matter. Rather, consider thehearing 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 againstWalmart. This case involved a cart pusher, Paul Reina, whose job consisted primarily of clearingthe parking lot of shopping carts. Reina is deaf and has developmental, visual, and intellectualimpairments. Reina had worked for Walmart in this capacity from 1998 to 2015, always with theassistance 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 Reinawas put on administrative leave and never allowed to return to work. To be fair, Walmart gaveseveral reasons it felt Reina should no longer work as a cart pusher, including the argument thatit 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 thatthis violated the ADA and awarded Reina $200,000 in actual damages and $5 million inpunitive 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 acourt 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 inflexiblelimit 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 yourbelief or a stereotype of what someone with a disability can or can’t do – discuss it withthe 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 andpossible accommodations, and the staff is available for discussion by telephone.
- Consider other resources specific to the employee’s disability. There are multiple websitesfor virtually every type of impairment that will help educate you about the employee’ssituation. But remember – again – to avoid those stereotypes and make your determinationson 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 services. We 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 firstname.lastname@example.org.