A GOOD EXAMPLE OF HOW “NOT” TO REASONABLY ACCOMMODATE UNDER THE ADA

 

           The settlement of a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”) aptly demonstrates the adage that sometimes the best example is a really bad example. 

 

          The EEOC filed the suit in 2017, alleging that Hester Foods, which operated a Kentucky Fried Chicken restaurant in Dublin, Georgia, had violated the Americans with Disabilities Act (“ADA”) by firing its restaurant manager when the company’s owner found out that the woman was taking medication prescribed by her doctor to treat her bipolar disorder.

 

          According to the EEOC lawsuit, when the owner discovered the woman was receiving the treatment, he referred to the manager’s medications in obscene terms, and made her destroy her medications by flushing them down a toilet at the restaurant. When the woman later told the owner that she planned to continue taking the medications per her doctor’s orders, the owner told her not to return to work and fired her.  The EEOC filed suit in the U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process.

          In addition to paying a $30,000.00 settlement, the consent decree settling the ADA lawsuit requires the restaurant operator to create and disseminate a handbook containing policies that prohibit discrimina­tion. The decree also requires that the company provide annual equal employment opportunity training to its managers, supervisors, and employees. The two-year decree further requires the company to post a notice to its employees about the lawsuit and to provide periodic reporting to EEOC about disability discrimination complaints.  In commenting on the settlement, Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office stated “Employers are not allowed to force workers with disabilities to choose between their jobs and their health. Reasonable accommodation includes allowing workers to rely on their physicians, not on the opinions of the company managers.”
 

          The ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. 

          An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee, and must be judged on a case-by-case basis. 

 

 

         Making a reasonable accommodation can sometimes be difficult but more often, can be addressed through common sense and engaging in an interactive process with the employee.  As illustrated by this case, failure to do so can be costly.



 

“Don’t Mess with Texas” . . . the Lone Star State Sues the EEOC over Employers’ Use of Criminal Background Checks

The State of Texas has filed a lawsuit against the Equal Employment Opportunity Commission (“EEOC”), alleging that the federal agency has overstepped its statutory authority by imposing limits on employers’ use of criminal background checks in making employment decisions.

It has been over a year since the EEOC issued strict enforcement guidelines, seeking to limit employers’ ability to make employment decisions based on an individual’s criminal history. The stated rationale for the EEOC’s position is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects minorities, who statistically have higher rates of arrest and criminal conviction, and has a disparate impact in violation of Title VII of the Civil Rights Act (“Title VII”). While not completely banning the use of background checks, the EEOC guidelines place a burden on employers to prove that such reliance is based on business necessity.

The lawsuit by the State of Texas alleges that the EEOC “purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment” and that the State of Texas and “its constituent agencies have the right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise.”

Since the EEOC released the new enforcement guidelines in 2012, it has brought a series of lawsuits against employers, alleging violations of Title VII. However, federal courts have expressed skepticism over the federal agency’s theory of liability and in recent cases, have ruled against the EEOC and in favor of employers. In one such case, a U.S. District Court chastised the EEOC for pursuing a disparate impact discrimination claim based on “a theory in search of facts to support it.”

In its lawsuit, the State of Texas is asking the U.S. District Court to declare that the EEOC’s use of the guidelines are invalid and to enjoin the EEOC from challenging the State’s policy of not hiring convicted felons for certain state jobs.

At the time the EEOC released the stricter guidelines, many legal commentators noted that Congress had never granted the federal agency such rulemaking authority, and that the guidelines were an illegitimate exercise of authority.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com