Tag Archives: EEOC

7th Circuit Affirms Employer Victory: Discharge Proper for Employee Who Could Not Perform Essential Job Function

Contributed by Jonathon Hoag

The ADA Amendments Act of 2008 (ADAAA) brought broad speculation that a large percentage of employees would qualify as “disabled”  as defined under the amended ADA and employers would have to focus attention on engaging in the interactive process to identify a reasonable accommodation. While it is true that the ADAAA has increased the Injured personimportance of engaging in the interactive process to review possible accommodations, it is still equally important to consider whether the employee is a “qualified individual with a disability” under the ADAAA.  The 7th Circuit’s recently upheld dismissal of a disability claim because the employee could not perform the essential functions of the job and, thus, was not a “qualified individual with a disability.”

The employee started work at an automotive retailer in 2005 and was promoted to Parts Sales Manager (PSM) in 2007. Following her promotion, the employee suffered a work-related injury and in 2009, was permanently restricted from lifting with her right arm anything that weighed over 15 pounds. Her employer terminated her when they were unable to reasonably accommodate her lifting restriction, asserting that lifting was essential to the job.

The EEOC filed suit against the employer alleging it failed to accommodate the employee’s lifting restrictions. As part of its claim, the EEOC was required to prove that they employee was a qualified individual with a disability. Under the ADAAA, this means the EEOC had to prove she could perform the essential functions of the job with or without reasonable accommodation.

The employer was able to submit substantial evidence to show that lifting objects over 15 pounds was a regular and essential part of the PSM job. Importantly, the employer was able to prove it did not have a practice of reassigning the lifting requirement of the job. If there is evidence that the employee reassigns a task to other employees, the court views this as a strong showing that the task is marginal (and not essential) to the job. The 7th Circuit pointed to numerous cases finding that it is not a reasonable accommodation to require another employee to do the lifting. As a result, the employee was not a qualified individual with a disability under the ADAAA.

The employer prevailed because it had substantial evidence to show lifting was an essential job function and there was no way to reasonably accommodate the employee’s restrictions. The ADAAA certainly places more emphasis on the employer’s obligation to review reasonable accommodations and engage in the interactive process. However, the 7th Circuit’s ruling is a reminder for employers to work with counsel to simultaneously analyze whether the employee is a “qualified individual with a disability.” This threshold issue remains an important component of limiting legal exposure to disability-related employment claims.

EEOC Guidance on Accommodating Employees with HIV/AIDS Provides Excellent Perspective for All Employers

Contributed by Steven Jados

On December 1, 2015, in conjunction with World AIDS Day, the EEOC issued two new guidance documents addressing the legal rights available to employees with HIV/AIDS under the Americans with Disabilities Act (“ADA”).

HIV RibbonWhile these documents specifically reference HIV and AIDS, the reality is that this new guidance has tremendous value to human resources professionals and other management decision-makers who may be faced with accommodation requests based on virtually any medical condition. Moreover, although the guidance is not specifically directed to employers, again the truth is that this guidance describes in great depth the basic considerations employers must make when evaluating issues that may involve ADA-protected rights.

First and foremost, the guidance makes clear that employers must base employment decisions, including decisions on hiring, termination, and whether to grant reasonable accommodations, on objective evidence, not medical myths or stereotypes. Employers simply are not permitted to speculate or guess on matters relating to how a medical condition affects an employee’s job performance.

The guidance also provides excellent detail in terms of what information an employer can require from a health care provider in the context of an employee’s reasonable accommodation request. Such information can include descriptions of how the employee’s condition functionally limits his or her performance of job functions and major life activities, and how the condition makes a particular change at work or a certain accommodation medically necessary.

The bottom line is that the EEOC’s new guidance provides a solid perspective on how an employer should respond to virtually any employee’s exercise of ADA rights, regardless of the underlying medical condition. This guidance also gives clear insight into the approach the EEOC is likely to take when it receives a discrimination charge that alleges ADA violations. As such, employers should give careful consideration to this guidance in advance of making any decision on an employee’s request for an accommodation, and before taking any employment action that may relate to an employee’s medical condition.

The documents discussed above are entitled “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA” and “Helping Patients with HIV Infection Who Need Accommodations at Work.

Arbitrary Disposal of Rejected Employment Applications vs. EEOC Regulations

Contributed by Steven Jados

On the final day of September, the EEOC filed a sex discrimination lawsuit against the Coca Cola Bottling Company of Mobile, Alabama. The EEOC frequently files lawsuits, but this lawsuit had an additional claim not often seen, which may be a wake-up call to many employers.

That claim was based on the bottling company’s alleged failure to preserve employment records—specifically, employment applications.

Federal regulations require the retention of employment applications “for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later.” For rejected applicants, the personnel action at issue is, of course, the rejection of the applicant.

Unless an employer is the rare company that makes decisions on applications the same day they are received, the EEOC’s retention requirements mandate that the employer keeps applications for one year—that is, one year from the date of rejection. If an employer fails to comply with this recordkeeping requirement, the EEOC can bring a lawsuit against the employer for an injunction to force the employer’s compliance.

What all of this means for employers, is that they must implement record retention procedures under which rejected applications are retained for a minimum of one year. Although it may seem obvious, step one of implementing such a procedure requires documenting the date when the decision to reject an application is made.

While some employers may brush off the record retention requirements as low-risk and overly technical, the reality is that if the EEOC investigates your company and finds recordkeeping violations, those violations may incite the EEOC to make more serious and widespread allegations of discrimination. These allegations will be more difficult to defend if the company has already destroyed relevant documents, such as employment applications. Bearing that in mind, employers should take this opportunity to review their record retention policies and procedures to ensure they comply with the EEOC’s regulations.

Tips For Drafting Severance Agreements To Avoid Scrutiny From The EEOC and NLRB

Contributed by Debra Mastrian

The EEOC and NLRB continue to actively review severance agreements, in addition to social media policies and employee handbooks. The provisions that draw the most scrutiny are waivers or releases of claims, confidentiality and non-disparagement provisions.

18108277_sAny attempt to interfere with an employee’s right to file an administrative charge, communicate with the agencies, or participate in agency investigations, are troublesome. Remember that while an employee can waive or release an EEOC or NLRA claim, the employee can still file a charge of discrimination or an unfair labor practice charge. You can, however, require that the employee waive any right to individual relief in the event a charge is filed. You should always include appropriate carve out language and the language should not be limited to just the EEOC and NLRB, but should apply to any other federal, state or local agency charged with enforcement of any laws. You should consider using a separate, bold paragraph (omnibus carve out) and then refer to that carve out paragraph in each provision that may restrict the employee’s rights. Do not condition payment of the severance on a withdrawal of a pending agency charge, but instead require the employee to complete and return an appropriate agency withdrawal form and notify the agency of the agreement.

Confidentiality and non-disparagement provisions can run afoul of Section 7 and 8 of the National Labor Relations Act (NLRA). The NLRB is concerned with broad provisions that may prohibit employees from discussing the terms and conditions of their employment or saying anything about their employer. Any provision that requires an employee to keep company information confidential should be carefully defined and limited to trade secrets and other non-public proprietary business information and should not be so broad as to cover all company and employee information. A provision that requires the employee to keep the severance agreement confidential should be limited to disclosure of the severance payment or specific terms, rather than the entire agreement. A non-disparagement provision that applies to statements about an employer should be limited to false statements that are willfully, maliciously or knowingly made. You can still prevent an employee from disparaging customers, suppliers and vendors.

You should add a savings provision that nothing in the severance agreement is intended to prohibit the employee from exercising his or her rights under the NLRA.

Employers should have their severance agreements reviewed on a regular basis to ensure they are current.

Document, Document, Document – A Mantra Revisited

Contributed by Carlos Arévalo

Failure to document performance or conduct problems is a common mistake employers make. Typically, employee handbooks contain provisions requiring periodic performance reviews.  Similarly, handbooks contain discipline provisions that include procedures dealing with the issuance of warnings related to the violation of work rules.  How employers use and apply these provisions can make the difference in successfully defending claims.

A recent decision out of the United States Court of Appeals for the District of Columbia illustrates how critical it is to properly document an employee’s behavior and performance issues. This decision also underscores the importance of making sure that the reasons for termination are clearly and consistently stated throughout the life of a claim. In Giles v. Transit Employees Federal Credit Union, 2015 WL 4217787 (July 14, 2015), an employee suffering from multiple sclerosis (MS) sued her former employer alleging wrongful termination in violation of the American with Disabilities Act (ADA) and the Employee Retirement Income Security Act (ERISA).

Prior to her termination, the employee was involved in a couple of altercations with customers. In one instance, the employee was engaged in an argument with a customer over a pen. The employee was given a verbal warning.  On another occasion, the employee improperly confronted a customer for entering the building through the wrong door. In response, the employee was issued a written warning with a two day suspension. The employee was then assigned to a different position. As for performance, the employee was given a combination of satisfactory and poor ratings in the two positions she held. When a leadership change occurred, the new CEO terminated the employee.

Because premiums for the health insurance plan increased 57% over a period of two years during her tenure, the employee sued claiming that the cost of treating her MS caused premiums to increase and that she was dismissed to reduce the employer’s health care costs. As the employee’s case moved from administrative proceedings before the EEOC to the action in district court, the employee also attacked the employer’s “shifting and inconsistent justifications for her termination.” Initially, the employer stated that the employee was terminated based on the employee’s performance ratings and her altercations with customers. Later, her termination was the result of a “general organizational review” made for “business reasons.” Finally, the employer reverted to poor performance and added that substandard employees were being eliminated as part of a business strategy to cut costs and restore profitability. Fortunately for the employer, the appellate court affirmed the trial court’s finding of summary judgment in favor of the employer because there was no evidence supporting a claim that the cost of insuring plaintiff was a motivating factor in the termination decision. However, inconsistencies or shifting justifications for employment action often give employees a successful argument that the reasons given for termination were pretextual in nature.

Here are five simple and practical lessons from the Giles case:

  1. Behavior issues should always be documented, even if they only involve a verbal warning.
  2. Periodic reviews should clearly identify any deficiencies in employee performance.
  3. The basis of a termination decision should be clearly stated to the employee.
  4. Employee files should be clear and concise so even a change in management will not affect employment decisions.
  5. The basis of the termination decision should be consistent – shifting reasons may impact the outcome of litigation.

The Supreme Court’s Abercrombie Decision Reminds That Neutral Work Rules Will Not Save You

Contributed by Steven Jados

On June 1, 2015, the U.S. Supreme Court decided EEOC v. Abercrombie & Fitch Stores, Inc., ruling that it was unlawful for an Abercrombie clothing store to reject an otherwise qualified applicant because, as a practicing Muslim, she wore a headscarf.

That rejection arose from Abercrombie’s unfortunate application of the company’s “Look Policy,” which prohibited employees from wearing “caps”—a term that the Look Policy did not specifically define.  Abercrombie believed—but was not certain, as there was no discussion of the issue with the applicant—that the applicant wore the headscarf for religious reasons.  Nevertheless, also believing that the Look Policy was non-discriminatory because all headwear, religious or not, violated the policy, Abercrombie rejected the applicant because of her headscarf.

If the applicant had come to interview at Abercrombie wearing her favorite baseball cap, then Abercrombie likely would have been free to reject her in line with the Look Policy.  That is not what happened.  Abercrombie did not believe that the applicant simply made a fashion choice to wear a headscarf.  Instead, what was clear to the court was that Abercrombie believed that the applicant wore the headscarf because she was a Muslim—and the court deemed that a violation of Title VII of the Civil Rights Act of 1964.

Here’s the first lesson:  Do not assume that your company complies with the law because it has neutral policies.  Neutral policies often must yield to religious practices—unless the company can make a showing of undue hardship.  And although it is not expressly addressed, this case carries the implicit warning to employers that maintaining an “image” or “look” is unlikely to be an undue hardship or otherwise justify application of a neutral policy that does not contain exceptions for religious practices or other legally protected characteristics.

This issue is analogous in many respects to the concept of employment at-will.  Yes, an employer can generally terminate an employee for any reason or no reason at all—unless the reason is the employee’s race, national origin, or other protected characteristic.  Similarly, an employer is generally allowed to have any number of seemingly neutral rules, and that is perfectly acceptable until those rules conflict with an employee’s religious practices.

Here’s the second lesson: Employers should not wait for a request for an accommodation when the company already believes it is making a decision that implicates an individual’s religious practice (or any other legally protected characteristic for which an accommodation may be required).  The fact that the applicant never raised the issue of her need for a religious exemption to Abercrombie’s Look Policy made no difference to the court.  Bearing that in mind, when an employer has reason to believe that a religious practice could be linked to an employment decision, the employer will be best-served by taking a proactive approach to determine whether the practice is one that can or should be accommodated.

Unanimous U.S. Supreme Court: EEOC Must Attempt to Conciliate Claims

Contributed by Noah A. Frank

Amid much anticipation, the Court unanimously held in Mach Mining, LLC v. EEOC that under Title VII, the EEOC must attempt to conciliate prior to filing suit against an employer. U.S. Sup. Ct., No. 13-1019 (Apr. 29, 2015). Title VII’s enforcement mechanism governs employment discrimination and Gavelretaliation claims related to race, color, religion, sex/pregnancy, national origin, age, and disability.  Under Title VII, the EEOC’s duty is to endeavor to eliminate discrimination by informal methods of conference, conciliation and persuasion and to insist upon legal compliance; the employer’s obligation is to refrain from illegal conduct.

Conciliation involves communication and exchange of information between the parties.  The EEOC must:

  • Inform the employer about the specific allegation(s);
  • Describe what the employer has allegedly done;
  • Describe which employee(s) or class allegedly suffered;
  • Engage in some form of discussion with the employer; and
  • Provide the employer an opportunity to cure the allegedly discriminatory practice.

However, the requirement that the EEOC conciliate is but a minor victory for employers as the required effort is limited to the employer being afforded a chance to (i) discuss and (ii) rectify the specified discriminatory practice.    Further, the proper remedy for the EEOC failing to take those specific conciliation steps prior to bringing a cause of action is for the court to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.

What this means for businesses:

An ounce of prevention is worth years and thousands (or more) of dollars of cure.  Companies should proactively ensure that their written employment policies and implemented practices comply with federal and state law.

If a claim arises or a charge of discrimination is filed, employers should engage seasoned employment counsel who regularly work with the EEOC and understand the ramifications of this decision to help investigate and respond to the charge.

And, in those cases where the EEOC finds “reasonable cause” of a violation, counsel should make certain to engage the EEOC in good faith discussion and conciliation efforts along the lines outlined by the Supreme Court with an eye to resolving the claim, if at all possible.