What You Should Know about the EEOC and Enforcement of the Americans with Disabilities Act

as posted by U.S. Equal Employment Opportunity Commission (EEOC)...

July 26, 2014 is the 24th Anniversary of the Americans with Disabilities Act (ADA) which was signed into law by President George H.W. Bush in 1990. Title 1 of the ADA makes it illegal for employers to discriminate against qualified job applicants and employees based on their physical or mental disabilities. The law also requires employers to provide reasonable accommodations to job applicants and employees who need them because of their disabilities, unless doing so would impose an undue hardship on the operation of the employer's business. These requirements apply to businesses with 15 or more employees, and state and local governments.

We are proud of our efforts to enforce this landmark law and will continue to work to eradicate disability discrimination. To that end, the Commission recently adopted a Strategic Enforcement Plan, identifying certain emerging issues under the ADA as a national enforcement priority.

Since EEOC began enforcing the ADA in July 1992 the number of charges alleging disability discrimination has grown from just over 15,000 in FY 1993 to near 26,000 last fiscal year. Through the resolution of these charges during the investigatory process and conciliation, the EEOC has obtained millions of dollars in monetary benefits, most recently obtaining $109.2 million for the victims of disability discrimination in FY 2013. A few recent and notable conciliations are highlighted below:

• A nationwide systemic investigation of a major retail establishment was successfully resolved by a conciliation agreement when the employer agreed to pay $2.3 million to a class of 76 individuals whom the EEOC found were denied reasonable accommodation under the ADA. Under the agreement, the employer has also agreed to make significant changes to its reasonable accommodation policies and practices nationwide; to conduct issue specific training for employees on the ADA and reasonable accommodations.
• In an ADA leave policy case, the Chicago District conciliated a charge for over $1.6 million. Approximately 2,000 individuals were affected by the employer's nationwide policy of denying additional leave as a reasonable accommodation for a disability. The conciliation agreement included provisions requiring the employer to revise its disability leave policy at all of its facilities nationwide, post a notice for all employees, conduct ADA training for all managers, supervisors and Human Resources personnel and EEOC monitoring of any revisions or modifications of its leave policy for the term of the agreement.

Since July 2013 alone, the Commission has filed more than 50 lawsuits (hyperlink to the list) alleging disability discrimination. The Commission filed these lawsuits to seek relief for discrimination victims with a variety of impairments, including cancer (e.g., breast cancer, basal cell carcinoma, and colon cancer), dwarfism, epilepsy, deafness, blindness, retinitis pigmentosa, Fuchs Endothelial Dystrophy, Usher's Syndrome, traumatic brain injury, HIV, multiple sclerosis, spinal stenosis, neuropathy, herniated discs and other back impairments, diabetes, anemia, coronary artery disease, end-stage renal disease, PTSD, narcolepsy, depression, anxiety disorder, and dyslexia.

The alleged discrimination has included failure to provide reasonable accommodation (including the failure to provide appropriate leave for disability-related needs or treatment); asking prohibited disability-related questions of employees; refusing to hire qualified applicants based on myths, fears, or stereotypes concerning certain impairments, and discharging qualified workers on the basis of disability.

A few notable cases addressed by courts or resolved over the past year are highlighted below:

• EEOC v. Hill Country Farms. The EEOC obtained the largest award ever under the ADA and the largest award in the history of the EEOC - $240 million for the class of men with intellectual disabilities. The EEOC alleged that a food processing plant in Iowa subjected a group of 32 workers with intellectual disabilities to a hostile work environment, discriminatory pay, and other discriminatory terms of employment for many years. Specifically, the company paid the men only $65 a month for full-time work, subjected them to abusive verbal and physical harassment, restricted their freedom of movement, required them to live in deplorable and sub-standard living conditions, and failed to provide adequate medical care. In September 2012, the court entered partial judgment for the EEOC and ordered the company to pay class members $1.3 million in back pay for work they performed between 2007 and 2009. In May 2013, a jury returned a verdict of $240 million for the class (reduced by the court to $1.6 million because of the ADA's damages cap). Ultimately, the court ordered payment of $3.4 million for the class members. In May 2014, the Eighth Circuit Court of Appeals affirmed the entry of judgment in favor of the EEOC.
• In EEOC v. Ford Motor Company. The EEOC sued Ford Motor charging that the company's denial of a particular employee's request to work from home up to four days a week as an accommodation for her irritable bowel syndrome violated the ADA. Harris was a resale steel buyer whose job primarily required telephone and computer contact with coworkers and suppliers. Ford's telecommuting policy authorized employees to work up to four days a week from a telecommuting site. The district court granted summary judgment for Ford Motor, holding that attendance at the job site was an essential function of the employee's job, and that her disability-related absences meant that she was not a "qualified" individual under the ADA. The U.S. Court of Appeals for the Sixth Circuit reversed the lower court, explaining that "the law must respond to the advance of technology in the employment context . . . and recognize that the 'workplace' is anywhere that an employee can perform her job duties." The Appeals Court held that the "highly fact-specific" question was whether presence at the Ford facilities was truly essential, and that a jury should decide that issue.
• EEOC v. Princeton Healthcare. The EEOC sued Princeton HealthCare System (PHCS), alleging that its fixed leave policy failed to consider leave as a reasonable accommodation, in violation of the ADA. According to the EEOC, since PHCS's leave policy merely tracked the requirements of the federal Family Medical Leave Act (FMLA), employees who were not eligible for FMLA leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks. Under the consent decree settling the suit PHCS will pay $1,350,000, which the EEOC will distribute to employees who were unlawfully terminated under PHCS's former policy. PHCS also is prohibited from having a blanket policy that limits the amount of leave time an employee covered by the ADA may take. PHCS must instead engage in an interactive process with covered employees, including employees with a disability related to pregnancy, when deciding how much leave is needed. In addition, PHCS can no longer require employees returning from disability leave to present a fitness for duty certification stating that they are able to return to work without any restrictions. PHCS also agreed that it will not subject employees to progressive discipline for ADA-related absences, and will provide training on the ADA to its workforce.

Other significant resolutions of EEOC cases involving leave and attendance policies from previous years include Interstate Distributor, ($4.85 million nationwide resolution challenging maximum 12-week leave policy), Supervalu ($3.2 million resolution challenging termination of approximately 1,000 employees at the end of medical leave),Sears ($6.2 million resolution challenging automatic termination policy and failure to accommodate employees injured at work) and Verizon ($20 million nationwide resolution challenging "no fault" attendance policy).

In fiscal year 2013, the Commission's outreach, education and technical assistance efforts focused on increasing voluntary compliance with federal equal employment laws and on improving employee and employer awareness of rights and responsibilities under federal employment discrimination laws, especially among underserved groups and in underserved areas. To this end, in FY 2013 the EEOC reached more than 60,000 individuals with information concerning the ADA through 850 outreach and education events. This is in addition to the hundreds of thousands of people educated about the ADA over the past 24 years.

The Commission has developed a robust catalogue of technical assistance documents on the ADA as well as publications outlining how the law may apply to medical conditions, and the workplace rights of individuals with those conditions. On May 15, 2013, the EEOC issued updates on four of these documents to address how changes in the definition of "disability" as a result of the 2008 Americans with Disabilities Act Amendments Act (ADAAA) may affect who is covered under the ADA. The revised documents include the following:

• Cancer in the Workplace and the ADA
• Diabetes in the Workplace and the ADA
• Epilepsy in the Workplace and the ADA
• Persons with Intellectual Disabilities in the Workplace and the ADA

Additionally, the EEOC has recently issued guidance designed to address questions from mental health providers concerning their role in the reasonable accommodation process, as well as the employment of veterans with disabilities.

We will continue our efforts to eradicate discrimination in the workplace by enforcing federal anti-discrimination laws and educating employers and employees about their rights and responsibilities.

http://www.eeoc.gov/eeoc/newsroom/wysk/ada_enforcement.cfm

FOR the U.S. Equal Employment Opportunity Commission (EEOC):

http://www.eeoc.gov/