Tag Archives: Equal Employment Opportunity Commission

Seventh Circuit Holds that Multiple-Month Extended Leaves Are Not Reasonable Accommodations Under the ADA

Contributed by Allison P. Sues, September 27, 2017

Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees’ requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (“FMLA”) or company policy.

Clock and StethoscopeThe U.S. Equal Employment Opportunity Commission has long taken the position that terminating an employee who has exhausted FMLA leave, but is still not able to return to work, may violate the Americans with Disabilities Act (“ADA”). For instance, the EEOC guidance, issued on May 9, 2016, opined that providing additional leave may be necessary as a reasonable accommodation.

The Seventh Circuit Court of Appeals recently issued a decision running contrary to this EEOC guidance and the prevailing precedent in other circuits, holding in Severson v. Heartland Woodcraft, Inc., that an employee is not entitled to extended leave as a reasonable accommodation under the ADA.

In this case, employee Severson took a twelve-week medical leave from work under the FMLA to deal with serious back pain (the statutory maximum). Shortly before this leave expired, Severson notified his employer that he was scheduled to undergo back surgery, and requested an additional two to three months of leave to recover from surgery. The company denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work.  Instead, Severson sued, alleging a failure to reasonably accommodate his disability—namely, a three-month leave of absence after his FMLA leave expired.

The Seventh Circuit affirmed the district court and clarified that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation. Finding that the employer did not violate the ADA by refusing to provide the additional leave, the Seventh Circuit explicitly stated that an employee, who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA.  Further highlighting its position, the Court distinguished between the FMLA, which it held was intended to provide long-term medical leave for those who cannot work, while the ADA is meant to require accommodation only for those “that can do the job.”

Before employers in Illinois, Wisconsin and Indiana reinstate strict Maximum Leave Policies and No-Fault Termination policies, whereby employees are automatically terminated if they cannot return to work when FMLA or other awarded leave is exhausted, several limitations to Severson should be noted.

Severson’s holding is limited to “medical leave[s] spanning multiple months.” The Court acknowledged that finite extensions of leave for shorter durations – described as “a couple of days or even a couple of weeks”, but less than multiple months – may still be deemed a reasonable accommodation.

The Court further acknowledged that intermittent leaves of short duration may constitute reasonable accommodations in the same way a part-time or modified work schedule may be a reasonable accommodation for employees dealing with medical flare-ups. Moreover, employers should be cautious about maintaining 100% Healed Policies, whereby an employer requires employees to have no medical restrictions whatsoever when their leave ends.

At any time employees have exhausted their leave, but are not fully cleared to return to work, the employer should engage in the ADA’s interactive process and consider the following before deciding to terminate employment:

  • Whether the employee’s current medical restrictions affect the employee’s ability to perform the essential functions of the position;
  • If the restrictions do impact the employee’s ability to perform the essential functions, are reasonable accommodations available that would enable the employee to perform these functions;
  • Whether vacant positions exist that the employee would be qualified to perform and could be reassigned into;
  • Whether the employer has a policy of creating light-duty positions for employees who are occupationally injured and whether this benefit could be extended to the employee without posing an undue hardship; and
  • Whether the employee’s request for additional leave is definite in time and of a short duration, and if this extended leave could be provided without posing an undue hardship.

 

Seventh Circuit Opinion Confirms Flexible Analysis of Adverse Employment Actions

Contributed by Allison Sues, November 9, 2016

On October 19, 2016, the United States Court of Appeals for the Seventh Circuit reversed a District Court’s Rule 12(b) (6) dismissal of two plaintiffs’ retaliation claims brought under Title VII and the Illinois Human Rights Act. In Volling and Springer v. Kurtz Paramedic Services, Inc., Case No. 15-3572, two Emergency Medical Technicians (EMTs) alleged that their employer and its new subcontractor refused to hire them because they had reported and/or supported claims of sex discrimination and sexual harassment against the employer’s previous subcontractor to the Equal Employment Opportunity Commission.

gavelbwThe new subcontractor filed a motion to dismiss, arguing that the plaintiffs had not stated a viable retaliatory failure-to-hire claim because the plaintiffs had not applied for the position that they claimed they were denied. The District Court dismissed the retaliation claims after referring to the prima facie case for a retaliatory failure to hire, which required the plaintiffs to allege that they applied for and were qualified for the position sought.

On review, the Seventh Circuit examined the circumstances under which the plaintiffs claimed to have been refused a position to determine whether they alleged an adverse employment action distinct from a straightforward failure-to-hire claim. In this case, the employer terminated its contract with the previous subcontractor following the plaintiffs’ reports of misconduct and replaced it with a new subcontractor. The employer informed all the EMTs who had worked with the previous subcontractor, with the exception of the two plaintiffs, on how to apply for unpublished vacancies with the new subcontractor. The new subcontractor hired all of these applicants. The plaintiffs never applied and were not hired. The Seventh Circuit reasoned that the plaintiffs alleged a discriminatory practice slightly different than a failure to hire – the failure to inform them of the vacancies where other employees who had not engaged in protected activity received notice of the positions. The Seventh Circuit stated, “plaintiffs’ failure to apply stemmed from the very discriminatory practice they complained of, and their failure to apply need not bar their retaliation claims.”

Employers should note that a court’s analysis of retaliation claims may be flexible and stretch outside confines of oft-repeated prima facie cases. Discrimination and retaliation claims can stem from not only a failure to hire an applicant because of his or her protected characteristic or prior protected activity, but also for any disparate treatment in the way employers publicize or recruit for the position prior to the hiring decision.

EEOC Targets Employer Wellness Programs

Contributed by Jonathon Hoag

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it has filed suit against a second employer alleging the employer’s wellness program is in violation of the Americans with Disabilities Act (ADA).  The EEOC’s first lawsuit of this kind was filed a couple months ago alleging the employer’s wellness program was not voluntary and the employee was discharged for failing to participate in the program.  The ADA concern is that wellness programs often require “medical examinations” and involve “disability-related inquiries,” so participation in these programs must be voluntary (or job-related and consistent with business necessity).

In the latest case, the EEOC alleges that the employer imposed significant penalties on non-participating employees, which eliminated the voluntary nature of the program.  The EEOC claims that employees who refused to participate faced cancellation of medical insurance or the requirement to pay the entire premium cost.  Employees who participated in the program maintained coverage and only had to pay 25% of the premium cost.  The EEOC acknowledged that voluntary wellness programs are lawful, but it is scrutinizing whether the program is truly voluntary.  According to the EEOC, if the employer places significant penalties on employees who choose not to participate (e.g., shifting 100% of the premium cost to such employees, disciplining employees, or cancelling medical insurance), the program is not voluntary.

The EEOC previously announced that it intends to initiate rulemaking to address wellness programs, but proposed rules have yet to be published.  To date, the EEOC’s activity only indicates it is targeting programs that impose significant penalties on non-participating employees.  There has been no indication that the EEOC will target wellness programs that simply offer slight incentives to encourage participation, but the forthcoming rules should help shed more light on the EEOC’s enforcement plans in this important area.  In the meantime, employers should review current wellness plans to ensure they are truly voluntary in nature.

General Contractor Held Liable for Hostile Work Environment Against Subcontractor’s Employee

Contributed by Noah A. Frank

Title VII prohibits employers from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual’s race, color, religion, sex, or national origin.  Other state and Federal laws prohibit discrimination based on age, disability, veteran status, and other characteristics.

Recently, the Sixth Circuit Court of Appeals held that a general contractor could be liable for a hostile work environment directed towards its subcontractor’s employee under a joint employer theory.  EEOC v. Skanska USA Building, Inc., No. 12-5967 (6th Cir. Dec. 10, 2013). The court found the general contractor supervised and controlled its subcontractor’s employees’ daily activities, directed their performance, determined their hours and daily assignments, assigned their supervisors, handled complaints, held meetings regarding disagreements, and did not consult the subcontractor’s owners regarding its employees’ complaints.  In essence, the court found that the subcontractor generally did “nothing” with respect to his employees and was a “nonentity.”  The court noted that the subcontractor’s African-American employees were allegedly called a variety of hostile names and epithets including the “n-word,” and were subjected to graphic depictions, including a picture in the port-a-potty of a Caucasian person shooting an African-American person.  The offenders included the general contractor’s employees, other subcontractors, and third-parties.  The victims allegedly reported the conduct to the general contractor, which did nothing to resolve their complaints, and eventually directed the subcontractor to fire them as a “poor fit.”  The court held that there was enough evidence to support a determination that the general contractor jointly employed the subcontractor’s employees, and therefore could be liable under Title VII.

While this case is an example of an extreme hostile work environment, its impact is directly applicable to all employers, and shows a changing tide in EEOC practice and discrimination jurisprudence.  Under Title VII, employers are responsible for protecting their workers from other workers, customers, and third-party vendors.  Under the joint employer theory, it is conceivable that a court could find an innocent general contractor or borrowing employer responsible for discriminatory conduct and hostile comments made towards another at their workplace.  Further, while this case addresses a construction general contractor’s responsibilities, it is likely that the EEOC and state agencies would attempt to extend this argument to borrowing employers (including those using temporary staffing agencies) and others using subcontractors.

Practice pointer for best practices:

Employers should ensure that subcontractors and independent contractors have, maintain, and enforce EEO policies, including anti-harassment and anti-retaliation policies. These policies should be incorporated by reference into any contract for services.  In light of the recent decision, employers should ensure that they not only have written policies and procedures in place to handle discrimination, harassment and retaliation issues, but must also carefully train all employees, supervisors and managers on the need to better identify, prevent and remediate such issues.

Government Shutdown Is In Its Second Week…What Does This Mean for the Labor and Employment World?

Contributed by Samantha Esmond

Unless you have been living under a rock, you have probably heard that the federal government has shut down all non-essential services for the first time in seventeen (17) years. As the shutdown is in its second week, the length of the shutdown is still highly unpredictable. Given the fact that the key players in Washington are still pointing fingers (and the blame), it seems more and more likely that the shutdown will be here to stay for days, possibly even weeks.

So, what does this mean for the labor and employment world? Not too much. Even with the shutdown of many key government agencies, employers must continue to comply with all statutory provisions, such as Title VII, ADA, FLSA, and the National Labor Relations Act. However, many “non-essential” government agencies have provided contingency plans explaining how they will operate during the shutdown. A sample of these key agency contingency plans can be accessed here:

  • Equal Employment Opportunity Commission (EEOC): Per its contingency plan, “only activities involving the safety of human life or the protection of property will continue.” For example, the EEOC will continue to docket and examine new charges to determine whether prompt judicial action is necessary to protect life or property. Nonetheless, the EEOC will cease the following activities during the shutdown:  (1) staff will not be available to answer questions from the public or to respond to correspondence from the public, (2) the EEOC will continue to accept charges that must be filed in order to preserve the rights of the claimant, such charges will not be investigated, (3) mediations will be cancelled, (4) federal sector hearings will be cancelled, (6) outreach and education events will be cancelled, and (7) FOIA requests will not be processed.
  • Department of Labor (DOL): The majority of employees working for the DOL will be furloughed. Accordingly, many of its programs and services, which are not “critical,” will be impacted. To view the DOL’s contingency plan, click here.
  • National Labor Relations Board (NLRB):  In essence, only such government activities necessary to prevent an imminent threat to the safety of human life or the protection of property may be undertaken. As such, the Office of Inspector General hotline will remain operational during the shutdown; however several services of the NLRB will not be available during the shutdown. The NLRB has updated its website with a link to its contingency plan, which is available here.
  • E-Verify:  E-Verify will NOT be available during the government shutdown and employers will not be able to access their accounts.

Employer Takeaway:  Generally, employers are still obligated to meet all statutory deadlines and continue to comply with all statutory and regulatory requirements during the shutdown. We will continue to monitor the happenings in Washington D.C. and provide updates as this situation develops.

EEOC Trolling for Plaintiffs? Say it Ain’t so…

Contributed by Julie Proscia

There are many disturbing facets to this story that will both outrage and terrify employers. As such, I will try to narrow the scope as best as possible and weed through the issues. Last month, Case New Holland Inc. filed suit against the federal Equal Employment Opportunity Commission (“EEOC”) in the U.S. District Court for the District of Columbia. The suit alleges that the EEOC unconstitutionally trolled for class members in a potential age discrimination class action by essentially spamming over 1,000 of Case New Holland’s business email domains.  The facts alleged are outrageous for two reasons.  First, the EEOC sent a “spam like” survey regarding working conditions to over 1,000 email addresses and second, it did this two years after the complaint was filed and after allegedly remaining silent and not pursuing any charges for over a year.

The latter fact, the dormancy or silence, is definitely not a new issue. Charges and complaints often languish in EEOC purgatory for months if not years. The length of time for an investigation is not capped with a statute of limitation and there is no watch dog per se to spur completion. Once a charge gets sent to the bottom of the pile, it can be forgotten about for a long time. As management, this can be a catch twenty two: it is frustrating in the desire to have closure, but also allows for a distance that eases tensions and memories. 

The more controversial part of the story is the email blast.  The mass email blast takes the investigation process to a whole new digital level of response that is disconcerting. The mass email was transmitted at 8:00 a.m. and was sent in survey form.  Not only did this early morning email disrupt the enterprise, but it also elicited statements from upper level management that represent the corporation. This email went out not only to non-managerial employees, but also to members of management and executive level staff, including members of the counsel’s office. Some of the managers and executives were at a level where their responses could bind the company and be classified as admissions, unlike in the discovery process of a case where depositions are attended by counsel, this email went out blind.  Case New Holland Inc. was never showed nor told of the survey before its transmission. 

That brings us to back to the complaint. In its complaint, Case New Holland Inc. is seeking a permanent injunction prohibiting the EEOC from soliciting its employees with mass emails; a court order requiring that the EEOC turn over any and all information obtained through the email survey; and an order enjoining the EEOC from utilizing the information obtained and from disseminating the information to any third parties.  All of which are aggressive requests to combat an aggressive move on the part of the EEOC.

This is a case that we will monitor closely and update you on. Technology may make our lives easier, but it also adds an increased dimension of liability. If agencies can send out a mass spam request for information without a company’s knowledge, the class of plaintiffs may have just increased exponentially.

Outdated Employment Applications Are Walking Among Us – RUN (to your lawyer)!

Contributed by Caryl Flannery

Zombie movies and TV shows can be entertaining.  “Undead” application forms, not so much.  An “undead” application is an outdated form that should have been put to rest long ago but somehow lives on, scaring job applicants and threatening to devour businesses over and over again.  Although we all think we’ve become pretty Equal Employment Opportunity (EEOC) savvy, the job application form often is overlooked in the compliance and updating process.  Many employers are relying on the same application form that they’ve used for years or a generic form downloaded from a one-size-fits-none internet site.  Sound familiar?  Read on … if you dare.

The many recent changes in labor and employment law and enforcement directly affect what you can, should, and should not ask in your application.  Information that was once standard fare may now be unlawful or likely to lead to information which could be used in a discriminatory fashion.  Disappointed applicants will point to those questions as evidence of discrimination in consideration of their application.  A government agency may expand that into an examination of your overall hiring process.  Current employees with complaints, charges, or lawsuits can (and will) point to the application to establish that your business is, at best, insensitive to discrimination concerns and, at worse, hostile to EEOC laws and inclusion issues. 

Following are a few examples of what should / should not be on your initial application form.  These are general guidelines and do not cover every category of inquiry.  Consult your employment attorney to be sure that all applicable federal, state, county, and local laws and regulations are reflected in your application form. Make sure that your application is available and accessible to people with disabilities, people without internet access, and, in some cases, non- or limited-English speakers.  (Editor’s note: As of this writing, there are no laws protecting the undead in the workplace)

Race, gender, age, religion, ethnic background, appearance, citizenship:  These have been off-limits for some time.  Information needed for affirmative action programs or other tracking requirement should be gathered on a separate form. Many jurisdictions now include sexual orientation as a protected characteristic. Ask about legal ability to work rather than citizenship or immigration status.

Health, injuries, and disability: Inquire only about the ability to perform the essential functions of the position with or without reasonable accommodation.  Don’t ask about specific conditions, diagnoses, genetics, or treatment information.  Histories of illnesses, injuries, or workers’ comp claims are also unacceptable.

Criminal history:  The EEOC takes the position that criminal history information should not be an issue unless the position is safety or security sensitive. Many states, including Illinois, have passed laws limiting inquiries in this area. 

Drugs and tobacco:  You can ask an applicant to consent to following your workplace drug and alcohol policy but don’t ask about particular habits.  Some states (such as Missouri) have laws that protect an employee’s right to use tobacco outside the workplace.  Others (such as Illinois) protect those who are registered medical marijuana users. 

Social Security number: Get social security numbers from employees, not applicants.  They serve no purpose in the application process and you become responsible for protecting that information from theft or misuse.