Beware: What you say to your employees about a co-worker’s ADA condition/claim could lead to a retaliation charge.
The EEOC is bringing ADA claims against Day & Zimmermann NPS Inc. (DZNPS), an engineering and construction firm.
The agency says DZNPS retaliated against one of its former electricians Gregory Marsh — after Marsh filed an ADA charge with the EEOC — by informing Marsh’s co-workers of his condition and allegations against the employer.
What happened?
According to the EEOC’s claim:
Marsh filed a charge of discrimination with the agency, claiming DZNPS failed to reasonably accommodate his disability and illegally terminated him because of his disability.
The EEOC then sought information from DZNPS as part of its investigation into Marsh’s claims. It asked for the names and contact info of other electricians who’d worked for DZNPS at the Millstone Power Station in Waterford, CT, during the period of time Marsh worked there.
But before providing the info to the agency, DZNPS sent a letter to roughly 146 individuals who worked for the same union as Marsh as well as DZNPS.
The letter:
- identified Marsh by name
- indicated that he had filed a charge of discrimination on the basis of disability
- identified Marsh’s union local
- explained Marsh’s medical work restrictions
- described the accommodation Marsh had requested
- informed recipients of their right to refuse to speak to an EEOC investigator, and
- offered recipients the option to have DZNPS counsel present if they chose to speak to the EEOC.
The EEOC (which, naturally, wasn’t a fan of this letter) then claimed this letter was retaliation for Marsh’s ADA claims against the employer. The agency also claimed the letter amounted to interference because it hindered DZNPS’ employees’ abilities to exercise their rights under the ADA.
The court’s ruling
DZNPS tried to get the EEOC’s retaliation claims thrown out of court, arguing that:
- it hadn’t taken any adverse action against Marsh after he filed his ADA charge (after all, he was no longer an employee at the time), and
- even if it had taken an adverse action against Marsh, there was no evidence it was the result of Marsh’s ADA charge.
The court shot down both of DZNPS’ arguments.
On the first argument, the court said a reasonable person could determine that disseminating an employee’s administrative charge of discrimination to the employee’s colleagues was an adverse employment action.
One the second, it said the short amount of time between the EEOC’s info request and DZNPS’ letter to employees was enough to suggest that the letter to employees was triggered by Marsh’s charge.
As for the interference claim, DZNPS argued it should be tossed because none of the letter’s recipients were actually harmed by the letter.
But again, the court shot down DZNPS’ argument. It ruled that it was plausible that the letter — by acting as a disclosure of sensitive personal information resulting from an EEOC charge — could dissuade recipients from making a charge of their own or communicating with the EEOC in general.
As a result, the EEOC will get its day in court with retaliation and interference charges — which means DZNPS is looking at an expensive legal battle or settlement.
Watch what you say (and write)
What should employers takeaway from this case? Be careful what you disclose to employees — especially when it comes to the legal and medical conditions surrounding one of their co-workers (or former co-workers).
If you feel compelled to send a letter informing employees about their rights during a federal investigation — like DZNPS did — avoid unnecessary references to who triggered the investigation.
Until this lawsuit has run its course, we won’t know if disclosing such info amounts to retaliation and/or interference. But the safest course of action right now is to assume it does.
court filing: EEOC v. Day & Zimmerman NPS Inc.
article by Christian Schappel, published by HRMORNING.COM | April 20, 2016
http://www.hrmorning.com/eeoc-dont-say-ada-protected-workers/
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