EEOC Update 2015 J OY CE W AL KER - J ONES SEN I OR AT T OR N EY - - PDF document

8/27/2015 1

J OY CE W AL KER - J ONES SEN I OR AT T OR N EY AD VI SOR EQU AL EMPL OY MEN T OPPOR T U N I T Y COMMI SSI ON

EEOC Update 2015

I’ll Discuss

2

 HOW many ADA charges we received  WHO we sued and who had to pay  WHAT (else) we’ve been doing

ADA Charge Statistics

 25,369/88,778 charges alleging disability

discrimination filed in FY 2014

 2nd year in which ADA charges have decreased since

the previous year

 For most impairments, percentages of charges

relative to total number of charges filed has remained relatively constant

3

8/27/2015 2

Impairments Most Frequently Cited

4 Back Regarded Other

Record of

5

“Record of” charges have increased since 2008

 Went from 5.9% of charges in 2007 to 6.6% in 2008

(first time over 6% of charges)

 In 2009 and 2010, record of charges were also 6.6%

• f total ADA charges

 Declined slightly in 2011 to 6.0% of charges but

increased to 7.3 % in 2014

Litigation Suits

6

In 2014, EEOC filed 167 lawsuits (19 more than in 2013)

 76 of those suits raised Title VII claims (about the

same as in 2013 when 78 suits raised such claims)

 49 raised ADA claims (about the same as in 2013 but

down from 2011 when EEOC filed 80 ADA claims)

8/27/2015 3

National Enforcement Priorities

7

 Eliminating barriers in recruitment and hiring by

targeting class-based recruitment and hiring practices that discriminate against certain groups, such as people with disabilities

 Targeting disparate pay, job segregation, harassment,

and discriminatory policies affecting vulnerable workers

 Addressing emerging and developing issues in

equal employment law

Obtaining Unlawful Medical Information

8

 Applicants were given a pre-offer employment

assessment performed by a psychologist

 Target agreed to pay $2.8 million to resolve

violations of the ADA and Title VII

Asking for Medical History

9

 Applicant was asked whether she had any health problems,

whether she had any major illness in the past five years, and about family medical history

 Applicant then told there were no vacant positions but suit

alleges there were at least two; company also filled at least nine other positions during the time it told applicant it would keep her application open

8/27/2015 4

Firing Employee for not Disclosing Medical Condition

10

 An applicant for an adult day care center was asked

whether she had any physical condition that would limit her ability to perform her job driving clients

 She responded “no” and was hired, but later told

employer that she had diabetes after experiencing few minutes of blurred vision

 Employer fired her for not disclosing her condition

before she was hired Subjecting Employees to Overly Broad Inquiries

11

 A trucking company’s medical clearance policy

required all drivers to notify company whenever driver had any contact with a medical professional

 Court ordered the company to change its policy to

make inquiries of drivers only when they are job- related and consistent with business necessity

 Company also was ordered to provide $225,998 in

back pay, $49,114 in compensatory damages, and $225,998 in punitive damages Requiring Employee to Return to Work with no Restrictions

12

 After a health and wellness director took leave for

symptoms due to fibromyalgia, her employer refused her request for a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her

• ffice and instead required her to remain on leave, then

fired her

 Company agreed to pay $112,500 to settle the lawsuit

8/27/2015 5

Failing to Engage in Interactive Process

13

 Employee at a healthcare provider had an epileptic seizure

while at work and requested an accommodation because of temporary side effects of seizure medication

 Employer ignored employee’s request  Company agreed to pay $100,000 to settle the suit and to

provide ADA training to employees

Playing Doctor

14

 A payroll manager asked to work from home when a

workplace chemical aggravated her asthma

 Employer decided that her asthma would only

worsen if she ever returned to work and terminated her

 Company will pay the employee $58,000 in loss

wages, provide ADA training, and draft a policy specifically allowing telework as a reasonable accommodation

Playing Doctor (cont.)

15

 An office associate who took two months leave

following a double mastectomy for breast cancer asked for additional leave that would have exceeded the hospital’s six-month leave policy

 After meeting to discuss request, managers decided

that employee looked “fragile” and unlikely to return and fired her

 The hospital agreed to change its policy and pay the

employee $300,000

8/27/2015 6

Refusing to Provide Alternative Test

16

 Applicant was offered a job as an assistant store manager

contingent on passing a urinalysis for illegal drugs

 She informed a manager that she could not produce

urine because of a renal disease

 Employer refused to order alternative drug test  Wal-Mart will pay $72,000 and provide significant

equitable relief

Failing to Allow a Job Coach

17

 After observing an employee with Down Syndrome

using an independently employed and insured job coach, a visiting partner ordered the pizza company to fire the employee

 Because allowing an employee to use a life coach is a

reasonable accommodation, the alleged conduct violates the ADA Requiring Employees Needing Reassignment to Compete for Vacancies

18

 Airline’s reassignment policy required employees

with disabilities to compete for vacant positions for which they were qualified

 United agreed to revise its policy, train supervisors,

and pay more than $1 million to settle the class action

8/27/2015 7

Denying Leave to Probationary Employee

19

 A maintenance worker requested six weeks of unpaid

leave to obtain treatment for seizures caused by disabilities related to his service in the military

 Although company offered up to 26 weeks of paid leave

to non-probationary employees, it fired employee because he was probationary

 Company will pay the employee $65,000 and revise its

policies to ensure that probationary employees are given unpaid leave as a reasonable accommodation

Wellness Programs

20

 On April 20, EEOC issued a notice of proposed rulemaking

• n how the ADA applies to workplace wellness programs

that include disability-related inquiries and/or medical examinations

 Received more than 340 substantive comments during 60-

day comment period

 Currently considering those comments in drafting file rule

Pregnancy Discrimination

21

 In July 2014, the Commission issued a

comprehensive update to its pregnancy guidance, including the application of the ADA to pregnancy- related impairments

 Updated and revised guidance on pregnancy

accommodation issues in light of Supreme Court’s decision in Young v. UPS

8/27/2015 8

Workplace Harassment

22

 30 percent of the charges filed in FY 2014 alleged

workplace harassment, with race being most frequently cited followed by disability and gender

 Commission held a public hearing to hear from

experts

 Commissioners Felblum and Lipnic are co-chairing a

task force to identify problems leading to harassment claims and effective strategies for preventing and remedying workplace harassment

Celebrated two Historic Milestones

23

 EEOC’s 50th anniversary  25th anniversary of the ADA  Visit our website at eeoc.gov for online

commemorations of both anniversaries

Contact Information

24

Joyce Walker-Jones Joyce.Walker-Jones@eeoc.gov (202)663-7031