In a recently decided federal case ( EEOC v. BSNF Railway Company), the U.S. Court of Appeals for the Ninth Circuit held that employers are required to pay for an employer-required post-offer medical examination.
In this case, the company made an offer of employment to an individual and conditioned the offer of employment on the candidate successfully completing a medical examination. This candidate had a history of back issues and was required to obtain an MRI as a part of the examination (which the candidate was going to have to pay for out-of-pocket). The candidate told the company that he could not afford to pay for the MRI and the company rescinded the job offer.
The Court confirmed that ADA permits follow-up medical testing where such testing is “medically related to previously-obtained medical information.” However, the ADA does not specify who should pay for the additional testing. The Court determined that requiring the candidate to assume the costs of the additional testing could go against the anti-discrimination provisions and the policy purposes of the ADA, by forcing them “to face costly barriers to employment.” As a result, the Court found that employers must bear the costs of any such testing.
In a recent case (Sessoms v. Trustees of the University of Pennsylvania), the Third Circuit Court of Appeals held that while the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to disabled employees, employers are not required to provide the accommodation requested by the employee. Instead, after engaging in the interactive process, employers may choose among reasonable accommodations as long as the chosen accommodation is effective.
In this case, an employee had been out on a medical leave of absence relating to her disability. Prior to returning to work, the employee engaged in the interactive process with her employer (the university) and requested that she be provided a part-time schedule and that she be transferred to a different supervisor in a “lower-stress department/office” as a reasonable accommodation for her disability.
The university agreed to provide the employee with a part-time schedule, but the university did not grant the employee’s request to change supervisors. The university offered the employee several different accommodations (all of which involved reporting to her current supervisor), but the employee refused to accept any accommodation that involved her reporting to her current supervisor. Ultimately, after making several attempts to get the employee to accept the offered accommodation, the employee was terminated. The employee later sued the university for disability discrimination. Continue reading NEW CASE: Court Reminds Employers That Reasonable Accommodation ≠ Employee’s Demand Where There Are Other Reasonable Alternatives
The California Department of Fair Employment and Housing recently published a model Equal Opportunity Policy.
Under California law, employers are required to “take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.” A part of this obligation includes a requirement that employers develop a harassment, discrimination, and retaliation prevention policy that: Continue reading NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy
A Florida jury recently awarded a former Costco employee $775,000 for her claim that the company failed to reasonably accommodate her disability.
The former employee is deaf and she claimed that Costco failed to provide sufficient interpreting services for her at work — specifically during larger group meetings (held via conference call). While Costco had provided this employee with a video phone, the employee had complained that the video phone did not work properly during larger meetings where there are multiple conversations occurring at the same time. The employee asked Costco to provide a live interpreter for the large meetings and, while Costco agreed to provide the interpreter, one was never actually provided.
Continue reading Failure to provide reasonable accommodation to deaf employee costs Costco $775,000
Associated Fresh Market, Inc. has agreed to pay $832,500 to settle a group of disability discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC).
The charges filed against the company by several employees alleged that Associated Fresh Market had a pattern and practice of denying reasonable accommodations to disabled employees.
The EEOC investigated these charges and found that the company had a practice of denying reasonable accommodations under the ADA. Specifically, the company required employees to have no restrictions or be 100% ready to return to work before an employee was reinstated following a medical leave of absence. The company also routinely denied leave as a reasonable accommodation. Finally, the company frequently refused to reassign employees to a vacant position as a reasonable accommodation.
Continue reading Utah Employer Learns A $832,500 Lesson About Disability Discrimination
On June 5th, Nevada Restaurant Services, a large Las Vegas-based gaming company that operates slot machines, taverns, and casinos, agreed to pay $3.5 million to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
In the suit, the EEOC alleged that by requiring workers with disabilities or medical conditions to be “100% healed” before returning to work the Las Vegas gaming company violated the Americans with Disabilities Act (ADA). The EEOC argued that this behavior doesn’t adhere to the ADA’s interactive process, let alone its reasonable accommodation requirement.
Furthermore, the EEOC showed that Nevada Restaurant Services went as far as firing employees because it viewed them as disabled or, in some cases, were simply associated with someone with a disability.
The EEOC’s Fight Moves Onward
Continue reading The EEOC Claims Another Victory in Fight for Disabled Workers
The EEOC recently released the national enforcement data for the 2017 fiscal year. According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.
In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces. Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.
Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five. The total breakdown of charges by type is as follows:
|Equal Pay Act
|Genetic Information Non-Discrimination Act
In addition, the EEOC has also released the breakdown of claims received by state. The top 10 states are:
|| Type of Charge
The full state breakdown of claims is available here.
In a recent California case, employers nationwide are reminded of the importance of engaging in the good faith interactive process and attempting to provide reasonable accommodation to a disabled employee. California jurors, in a special verdict, recently awarded a disabled former employee a $4.5 million verdict for violating the California Family Rights Act (CFRA) and California Fair Employment and Housing Act (FEHA) when the employer terminated the employee while she was out on CFRA leave.
In 2015, the former employee went out on medical leave (CFRA leave) for a broken arm. Shortly after going out on leave, the former employee was diagnosed with major depression and her treating physician advised her employer that she would require more time off than the 12 weeks provided under the CFRA.
Rather than engage in the interactive process with the employee to try to find a reasonable accommodation (or extend the employee’s leave), the employer terminated the employee when her 12 weeks of CFRA leave expired. The former employee filed a lawsuit against her employer claiming that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment. The employee also claimed that her employer had violated FEHA by failing to engage in the interactive process with her about her disability and by failing to provide her with reasonable accommodation.
The jury agreed with the plaintiff and awarded her the $4.5 million verdict ($546,000 for back and front pay, over $1.9 million in compensatory damages and $2.6 million in punitive damages).
Take Home for Employers
While a California case, this case highlights to all employers the importance of working with employees who require accommodation for a disability (i.e. the importance of engaging in the interactive process). This case might have been brought under California law, but there are federal laws (i.e. the Americans with Disabilities Act and Family Medical Leave Act) that impose the same requirements on employers. Under these laws, employers are required to engage in the interactive process to determine what reasonable accommodations are necessary so an employee can perform essential job functions.
The following are important steps to follow when engaging in the interactive process with an employee:
- Document!!!!! When an employee requests a leave of absence or a reasonable accommodation, document that request. Also, provide the employee an acknowledgement of the request in writing, to document that the request was received.
- Talk to the employee about the request. Sit down with the employee and discuss the request and possible accommodation(s) that the company can offer. Request additional information from the employee (or his healthcare provider) where necessary in order to determine exactly what the employee can (and cannot) do.
- Document (again)!!!!! After these conversations with the employee, send the employee a confirming memorandum summarizing your conversation, outlining accommodations discussed, and detailing any action items that both the employee and company need to perform in order to continue with the process.
- Complete the company’s action items AND follow up with the employee. Be sure to complete any action items assigned to the company in the confirming memorandum. Also, follow up with the employee to check the status of his action items. Do not assume that the employee will simply complete them, periodically touch base with the employee. And, as always, document both the company’s actions, but also the follow up conversations with the employee.
- Repeat this process. This process will need to be repeated until an accommodation is reached or a determination is made that no accommodation is possible. Remember, under the ADA (and FEHA), a leave of absence is considered a reasonable accommodation.
Remember, the interactive process is a continuing process with your disabled employees. Just because an accommodation is reached, that does not end the employer’s obligation to engage in the interactive process. Employers need to follow up with their employees periodically and verify that the selected accommodation is still working for the employee (i.e. enabling the employee to perform the essential functions of the position). If it isn’t, then the company will need to start the interactive process all over again.
In a recent decision (Xu v. Epic Systems, Inc.), the Wisconsin Labor and Industry Review Commission has held that an employee’s discrimination claims under the Wisconsin Fair Employment Act (WFEA) are not waivable. Specifically, the Commission found:
- Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
- An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.
In this case, a former employee had entered into a severance agreement with his former employer where, among other things, the employee agreed to waive any claims under the WFEA in exchange for a severance payment.
The severance agreement also contained a standard provision intended to comply with federal law which prohibits the waiver of the right to file a charge or complaint with certain federal agencies (e.g., the U.S. Equal Employment Opportunity Commission (EEOC), the Securities and Exchange Commission, the Occupational Safety and Health Administration, the National Labor Relations Board), which stated the following:
Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of such charge with regard to any released claim.
After signing the agreement, the former employee filed a complaint with the EEOC for race discrimination. While the EEOC charge was dismissed, the former employee’s charges were cross-filed with the Wisconsin Equal Rights Division, where the employee claimed that the employer’s conduct also violated the WFEA. Due to the severance agreement, the Division dismissed the claim and the employee appealed the dismissal to the Commission.
The Commission found even though the former employee had waived his right to recover any damages for violations of the WFEA, due to the standard clause (quoted above), he had not waived his right to file a charge with the Division. Moreover, the Commission also concluded that employees cannot be precluded from filing a complaint with the Division.
Watch out employers! The EEOC has joined the digital age by rolling out its new online filing portal, or Public Portal nationwide. With this new tool, employees are now able to easily initiate a charge with the EEOC.
Using this new system, employees are able to file a discrimination charge with the EEOC online. In addition to filing a charge, employees are also able to use this system to manage an EEOC charge that was filed on or after January 1, 2016 if the charge is in investigation or mediation. Specifically, employees who have filed an EEOC charge can use this new portal to:
- Provide and update contact information;
- Upload documents to the charge file;
- Check the status of his or her charge;
- Agree to mediation; and
- Receive charge documents and messages from the EEOC.