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09/28/2023 | News release | Archived content

Five Lawsuits in Five Days: EEOC Goes on Warpath with New ADA Filings

Five Lawsuits in Five Days: EEOC Goes on Warpath with New ADA Filings

Posted: September 28, 2023

An onslaught of new lawsuits filed by the Equal Employment Opportunity Commission (EEOC) near the end of September demonstrates the wide scope of protection afforded to applicants and employees with disabilities under the Americans with Disabilities Act (ADA).

In five federal lawsuits filed within a span of just five days, the agency in combination has asserted a variety of claims relating to hiring, firing and job accommodation.

Three of the suits involved applicants or employees with hearing impairments.

In no particular order, here is a closer look at the allegations raised in the new suits.

EEOC Suit 1: Remote work as job accommodation

Under the ADA, reasonable accommodation can take many forms. Some common examples include job restructuring, providing a modified work schedule, and offering a suitable job reassignment.

As this case demonstrates, employers must remember that providing accommodation can mean making adjustments not only to how a job is done but also to where work is performed.

The EEOC filed the suit in a Georgia federal district court on behalf of a web designer for a pediatric health service provider. The agency's press release announcing the lawsuit does not disclose the nature of the employee's disabilities.

The agency says that the employee asked the employer to work remotely three days per week due to her disabilities. Just a day later, it alleges, the employer not only denied the request but terminated her employment.

The employee was able to fulfill all her work responsibilities as a web designer remotely, the suit says.

Remember: The scope of potential required job accommodations is broad, and permitting remote work can be one of them.

Obviously, some jobs cannot be done remotely. Think of jobs like firefighter, home builder and surgeon - jobs that require employee interaction with things that cannot be replicated in a remote environment. But many other jobs - and particularly computer-related jobs like web designer - may be amenable to remote work.

Do not dismiss any request for a disability-related job accommodation out of hand. Instead, take a long hard look at whether the requested accommodation will enable the performance of essential job functions without creating an undue hardship.

EEOC Suit 2: Leave as accommodation

It is clear that when it comes to providing reasonable accommodation, offering employees leave is a potential form of accommodation.

This may seem counterintuitive: How does providing leave help an employee do their job?

There is no doubt, however, that the provision of leave may be required.

As the EEOC has clearly advised in relevant guidance:

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability.

In this case, the agency filed suit in a Colorado federal court on behalf of an appliance store sales associate. The sales associate, who experienced symptoms associated with long COVID, asked for additional leave of about one to two weeks, the EEOC says.

The employer denied the requested accommodation and terminated the sales associate's employment when her period of leave expired, according to the agency.

The allegations in this suit paint a textbook picture of an employer that violates its duty to engage in the interactive process of determining an appropriate job accommodation. The employer allegedly did not adequately communicate with the employee about the nature of her condition or what other possible accommodations might be available.

Plain and simple: If an employee asks for a job accommodation, engage in a good-faith, interactive dialogue to determine if a suitable one is available.

EEOC Suit 3: Providing communication aids

In a third case, the agency sued a government contractor that provides janitorial and maintenance employees to federal worksites.

According to the suit, the employer did not provide communication-related job accommodations to its employees who are deaf or hard of hearing.

Such accommodations may include sign-language interpreters and assistive technology, such as a video relay service.

In January, the EEOC released expansive guidance on how employers can accommodate job applicants and employees with hearing impairments.

This suit was filed in a federal district court in Maryland, and it seeks back pay, compensatory and punitive damages, and equitable relief.

EEOC Suit 4: Deaf drivers may be qualified

In a separate suit that was filed in Illinois, the EEOC has accused shipping behemoth UPS of unlawfully refusing to let deaf or hearing-impaired individuals drive trucks that weigh more than 10,000 pounds.

It says the employer's policy amounts to an unlawful qualification standard that wrongly screens out people with disabilities.

The federal Department of Transportation (DOT) has authorized the practice of allowing dear or hearing-impaired people to drive such trucks, the agency says.

The DOT authorized the affected drivers to drive the big trucks via a program that exempts them from a hearing test and uses other criteria to make sure they can do the job safely.

Remember: Employers can exclude individuals with hearing disabilities from a job for safety reasons only when they pose a direct threat, which means a significant risk of substantial harm that cannot be eliminated via the provision of reasonable accommodation.

Acting on the basis of myths, fears or stereotypes about hearing disabilities - or any other disability - will most certainly cause problems for an employer.

A jury in Nebraska recently awarded a deaf driver more than $36 million in a similar suit.

EEOC Suit 5: Fired on first day

In the fifth suit, which was also filed in Illinois, the agency alleges that a beauty product manufacturer illegally terminated the employment of a production line worker on her first day of work.

The agency says the employer terminated the employee when it learned that she is deaf.

The employer assumed that the employee could not do the job, the agency asserts, even though she was able to perform all of its essential functions.

These allegations again raise the specter of an employer that makes decisions relating to hiring, firing or other aspects of employment based on fears, myths or stereotypes.

Remember to conduct an individualized assessment of whether an individual with a disability is qualified to perform the job at hand.

Posted In:Americans with Disabilities Act (ADA); Discrimination, Illegal; Equal Employment Opportunity Commission (EEOC); Illinois; Reasonable Accommodation

Want to know more? Read the full article by Tom D'Agostinoat HR Morning