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EEOC suits show disability discrimination “a top priority” for federal agency
09/09/2021
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John VDLD
John van der Luit-Drummond is editor of International Employment Lawyer

The US Equal Employment Opportunity Commission (EEOC) made worldwide headlines in July by securing a $125m jury verdict against Walmart after the hypermarket chain illegally fired an employee with Down Syndrome. And yet, despite the additional attention such stories bring to workplace discrimination issues, EEOC lawsuits claiming employers’ failure to accommodate reasonable requests from disabled workers keep on coming.

“Our nation recently celebrated the 31st anniversary of the Americans With Disabilities Act [ADA], and yet, all too often, disabled workers who need reasonable accommodations are still not receiving them,” said EEOC Regional Attorney Debra M Lawrence in a recent statement.

The total number of EEOC charges brought under the ADA have remained steady in recent years, with only a slight dip from 24,605 receipts in 2018 to 24,324 in 2020, according to the latest data from the Office of Enterprise Data and Analytics. So why, more than three decades after passing into law in 1991, are so many employers – both big and small – across the country still falling foul of federal disability discrimination protections?

In the latest case to attract significant media attention, Sewell-based JDKD Enterprises, which operates numerous McDonald’s franchises in New Jersey, violated federal law when it fired a grill cook with autism, the EEOC charged in a lawsuit filed earlier this week.

According to the suit, the cook had worked at McDonald’s for 37 years, including 10 years at a restaurant in Deptford, New Jersey, during which time he received awards and accolades for his work.

The EEOC has alleged that only two months after JDKD Enterprises assumed ownership of the Deptford restaurant, the new employer abruptly terminated the grill cook because of his disability, which was apparent and included his tendency to speak in a loud voice, in breach of the ADA and despite his continued excellent job performance.

The EEOC’s suit seeks back pay, compensatory and punitive damages for the employee, and other equitable relief.

“In this case, the grill cook received awards for excellent job performance during his 37-year career with McDonald’s,” said the EEOC’s Lawrence. “The only thing that changed was new owners who acted based on his disability, not on his demonstrated outstanding job performance.

“The purpose of the ADA to eliminate employment discrimination for people with disabilities who are qualified to do the job, and that is why we filed this lawsuit.”

In light of the additional risks to health and safety created by covid-19, it is particularly concerning that an employer would take this action several months into a global pandemic

ISS Facility Services, a Denmark-based workplace experience and facility management company that employs approximately 379,000 people worldwide and has a US headquarters in San Antonio, is also in the EEOC’s crosshairs.

Ronisha Moncrief, a health and safety manager at ISS’s Takeda facility in Covington, Georgia was denied her request to work remotely two days per week and take frequent breaks while working onsite, due to a pulmonary condition that causes her to have difficulty breathing and placed her at a greater risk of contracting covid-19. While other employees were granted similar requests, Moncrief was fired shortly after making hers, according to the EEOC’s suit.

“Denying a reasonable accommodation and terminating an employee because of her disability clearly violates the ADA at any time,” said Marcus G Keegan, regional attorney for the EEOC’s Atlanta District Office. “In light of the additional risks to health and safety created by covid-19, it is particularly concerning that an employer would take this action several months into a global pandemic.”

In Utah, nationwide staffing company Elwood Staffing Services is alleged to have violated federal law when it failed to hire a qualified applicant because she did not have a left hand.

According to the EEOC’s lawsuit, Elwood Staffing provided the applicant with a conditional job offer for work as a product assembler in a warehouse.

Elwood Staffing chose not to administer one of two pre-placement tests to the applicant because of her disability, the EEOC said, and failed to consider or provide any reasonable accommodations before deciding not to hire her.

“Employers cannot refuse to hire applicants with physical impairments because of assumptions about what they cannot do,” said EEOC Phoenix District Office Regional Attorney Mary Jo O’Neill.

“Employers should always engage in an interactive process – which is required by federal law – to determine if a reasonable accommodation is available before making an employment decision based on an applicant’s or employee’s disability or need for accommodation.”

This is a classic example of how an employer caused itself a great deal of unnecessary trouble by refusing an accommodation request

In another recent EEOC charge, the US subsidiary of Canada’s Agropur Cooperative, a top 20 global dairy producer that saw sales of $6.5bn in 2020, has been sued for allegedly failing to provide reasonable accommodations to an employee with a skin condition, before then terminating her employment.

The employee worked at Agropur’s Grand Rapids location, which employs approximately 175 workers in dairy processing, part of the company’s US workforce of approximately 2,800.

During her employment, the worker, who suffers from severe dyshidrotic eczema, realised she was allergic to materials, such as rubber and some plastics, that were present in Agropur’s facility.

According to the EEOC’s lawsuit, the employee requested a different type of glove to wear during her work. Agropur refused, instead forcing the employee to leave work when she experienced flare-ups of her condition.

The worker was subsequently dismissed by Agroupur after accumulating a number of attendance points, accrued as a direct result of its failure to provide her with reasonable accommodation, the agency alleges.

“Agropur could have explored ways to accommodate this employee,” said Nedra Campbell, trial attorney for the EEOC. “Instead, the company violated federal law by using a no-fault attendance policy to discharge this employee. This is a classic example of how an employer caused itself a great deal of unnecessary trouble by refusing an accommodation request.”

Elsewhere, Texas-based K&L Auto Crushers has agreed to pay $90,000 after allegedly firing an employee shortly after she began treatment for cancer. Upon being diagnosed with small-cell lung cancer, the worker immediately notified her employer and provided an estimated length of her chemotherapy treatment.

Shortly after the employee began treatment, the owner told her it had secured temporary help and that she should stay home until she finished chemotherapy.

The employee requested a return to work on a modified work-from-home schedule while she finished her treatment, but K&L denied both requests, the EEOC said. The agency alleged that the employer had, in fact, terminated the employee but did not inform her until she had finished her cancer treatment.

“When an employee requests an accommodation, an employer must have a meaningful discussion about possible accommodations with an employee whose disability is impacting her ability to perform the functions of her job,” said Meaghan Kuelbs, senior trial attorney in the EEOC’s Dallas District Office.

“The employer must be an active participant in the accommodation process to find a way to accommodate the employee’s disability and only deny a reasonable accommodation if it would create an undue hardship for the business.”

...it is illegal to base a hiring decision on unsubstantiated assumptions about a disabled worker’s potential job performance while using prescribed medication

Also in Texas, industrial equipment and services companies The Modern Group and Dragon Rig Sales refused to hire a worker because he had sought medical treatment for anxiety and opioid addiction, the EEOC claims.

According to the EEOC’s lawsuit, the applicant applied for a welding job at Dragon Rig’s Victoria, Texas facility. He had worked without incident as a welder for 13 years, during which time had taken prescription medication to treat his anxiety. For many of those years, he had also been in recovery for opioid addiction, taking medication prescribed and monitored by a medication-assisted treatment programme.

After assessing his qualifications and work experience, Dragon Rig offered the applicant a job conditioned on his passing a pre-employment drug test, the EEOC said. The applicant provided the drug testing facility copies of his prescriptions and he passed the drug test.

Nevertheless, the facility’s medical review officer informed Dragon Rig of the applicant’s medication use and stated that the medication could impair his ability to perform the job and operate equipment safely.

The EEOC reported that without conducting any further inquiry, discussion, or assessment of the applicant’s ability to perform the job, the defendant companies withdrew the employment offer. Dragon Rig’s operations manager allegedly told the applicant: “If you get off that shit, I’ll hire you.”

“Misconceptions and stereotypes about workers receiving treatment for mental impairments and opioid addiction continue to prevent them from gaining employment for which they are fully qualified and able to perform safely,” said EEOC Houston Office Regional Attorney Rudy Sustaita.

“With this lawsuit, the EEOC aims to send a clear message to employers that it is illegal to base a hiring decision on unsubstantiated assumptions about a disabled worker’s potential job performance while using prescribed medication.”

Houston District Director Rayford O Irvin added: “Enforcement of the ADA is a top priority of this agency. The EEOC will aggressively investigate, and, if necessary, prosecute employers that violate the law and limit employment opportunities for individuals with disabilities.”

And, in Arlington, Virginia, military IT contractor CACI – a $6bn company – recently agreed to pay $150,000 to settle a disability discrimination suit. According to the complaint, CACI’s transfer of a former systems administrator to a new work location aggravated her disability and the firm’s refusal to accommodate her reasonable request to transfer back to her original work location amounted to discriminatory behaviour.

EEOC Philadelphia District Director Jamie Williamson said: “Training is often the best way to prevent disability discrimination. Ensuring that all employees, especially management, are properly trained regarding their obligations under the ADA, including their duty to engage in good faith – [and] diligent communication with their disabled employees about [their] accommodation needs – is a smart business practice and the right thing to do.

“Leadership means stewardship of your organisation’s most valuable asset – its people.”

The former US Commissioner on Disabilities, Julie Hocker, noted in April that the covid-19 pandemic has wiped out modest improvements in the unemployment rate for Americans with disabilities, and that disabled workers are often the last to be hired and first to be let go during economic downturns.

As fears mount that the US economy is being weakened by the surging delta variant, employers will have to make some tough decisions in the coming months. However, as the above cases demonstrate, the EEOC is likely to pounce on any company that thinks its disabled workforce is expendable.