Employers must be aware that 41% of all lawsuits filed by the Equal Employment Opportunity Commission (EEOC) in FY 2018 were Americans with Disabilities Act (ADA) suits. Failure to hire, failure to accommodate and attendance and leave policies resulted in settlements in the millions of dollars. The EEOC’s strategic enforcement plan is focused on eliminating barriers in recruitment and hiring that discriminate against protected classes as well as “inflexible” leave policies and systemic harassment.
The EEOC is focusing on policies that exclude and screening tools that result in disparate impact on individuals of a protective class. These practices include online systems that are inaccessible and medical questionnaires that impact individuals with disabilities.
A $4.4M settlement was awarded for failure to hire based on results of nerve conduction tests for carpal tunnel syndrome. EEOC charged Amsted Rail Company with violating the ADA because it disqualified job candidates based on the results of this test. Amsted Rail Company manufactures steel castings for the rail industry. The candidates were applying for the chipper position. Chippers remove metal overhangs from steel castings using a hammer or grinder. The court ruled the test had little value in predicting future injury. The company could conduct individual assessments on each candidate’s ability to perform the task safely. Forty candidates were provided lost wage and compensatory damages. The company will make job offers to some of those denied employment and modify their hiring policy and practices.
Employers can conduct pre-employment medical exams after a conditional offer is made, as long as the company requires it for the position consistently. These exams may include drug and alcohol tests, psychological tests, physical and mental assessments as well as physical exams. Employers can also ask candidates to demonstrate how they would perform specific functions of the job prior to a job offer. It would have been fortunate if Amsted Rail had a simulated “chipper” work station for candidates.
Inflexible leave policies cost Coca-Cola $2.25M and Nevada Restaurant Services paid $3.5M in a similar case. In addition to the $2.25M, Coca-Cola will establish an accommodation and leave management team, as well as provide annual financial support to selected non-profits who are dedicated to helping people with disabilities. This settlement resolves nine disability discrimination cases based on their policy requiring employees to be “100% healed” to return to their positions following a medical leave. EEOC encourages employers to ask returning employees about their restrictions and how long they will need accommodations. It is important to maintain a performance dialogue with employees especially upon return from a leave.
In a recent case, Big Lots Stores, Inc. was found liable of harassment of a cashier with a hearing and speech disability and punishing another individual for associating with the cashier. Co-workers mocked the cashier’s speech and used derogatory and offensive terms in reference to the employee and her disability. After her department manager complained about the harassment; the manager was given an ultimatum to quit or leave her part-time job with the Post Office. EEOC is seeking injunctive relief, job reinstatement and monetary remedies for both employees. Individuals with disabilities have the right to be free of discrimination and harassment in the workplace. Sadly, some employers need to heighten their awareness.