March 30, 2010

EEOC STEPPING UP PRESSURE ON DISABILITY CLAIMS?

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

Perhaps. or perhaps it’s coincidental. I’ll let you judge. Between March 2 and March 12, 2010, the EEOC announced settlements in 5 ADA cases. Here they are.

On March 2, the EEOC announced a $90,000 settlement with a McDonalds franchise in Philadelphia, PA on grounds that an employee (Timothy Artis) was harassed because of an intellectual disability. The allegations were that Artis was called offensive and degrading names, was physically shoved and threatened (on one occasion by a co-worker who threatened him with a box cutter), even though he was performing his job duties successfully. The victim’s mother repeatedly complained to store officials who, apparently, took no corrective actions. Artis ultimately quit in what reads like a constructive discharge.

On the same day, the EEOC announced a $50,000 settlement with Direct Wines, a beverage distribution company in Lake Forest, ILL. At issue here was a company policy that limited employee leaves to 2 time periods (Feb 15 to May 15 & July 15 to Oct 15) when business is slow. An employee (Pamela Stokes) requested a 6-week leave for heart surgery outside these windows, and was told she would effectively be resigning. She took her leave on Nov 20, 2006 and, as promised, was terminated.

On March 3, the EEOC announced a $32,500 settlement with Valley Isles Motor, Ltd. located in Maui, HA. The allegation was that Valley Isles rescinded a job offer after a urine test revealed the applicant was taking prescribed medication. The charge was that the applicant erroneously perceived the applicant as being “too disabled” despite other medical evidence to the contrary. The case presents a failure on the part of the employer to “flexibly interact” with plaintiffs to determine what, if any reasonable accommodations are required in relation to actual or perceived disabilities. Or noted by Timothy Riera, director of the EEOC’s Honolulu Local Office, stated “Employers should heed the lesson learned by Valley Isle Motors and be mindful to judge a candidate by his or her qualifications, not some ill-informed presumption. Communication with prospective employees is the key in determining whether one’s actual or perceived condition will interfere with work. Businesses should take advantage of appropriate training opportunities that are available to learn how to appropriately engage in that interactive process.”

On March 10, the EEOC announced a $17,000 settlement with A&A Contracting, a St. Louis, MO construction company. The allegation was that an employee (Rick Wells) was terminated when his application for health insurance coverage revealed a history of liver and kidney problems, including cancer. Additionally, A&A agreed to implement a comprehensive anti-discrimination policy in which it would train all management employees and designate an HR professional to consult and participate in HR-related matters. As noted by James R. Neely, District Director of the EEOC’s St. Louis District Office: “Even small employers need to keep themselves educated and informed of the law’s requirements. At the time Mr. Wells was fired, A&A Contracting had approximately 20-25 employees. Any business with that size work force needs to make sure that they have clear, effective anti-discrimination policies and that they provide thorough, comprehensive anti-discrimination training to its managers and employees on a regular basis.” I would add that it is unlikely that Wells would have satisfied that statutory ADA requirement for an impairment that significantly restricts a major life activity. In other words, by regarding Wells as being disabled, they gave him a free pass to fit the definition of being disabled within the meaning of the law.

And on March 12, the EEOC announced a $33,000 settlement against Kali Bottling Company, a large Arizona bottling/distribution company on behalf of a now deceased employee (Gerald Nez). Nez was a diabetic. Kali had a 30-year policy of requiring federal DOT medical certification for driving trucks that are 10,000 pounds or more. The DOT expressly forbids people who take insulin from driving such trucks. However, Nez was a merchandiser, and as such, was required to drive his own vehicle (a compact pickup truck) to do his job. Therefore, Nez was not required by DOT policy to obtain the medical certification. This is another instance in which the employer regarded the employee as being disabled. Also, there is case law supporting reasonable accommodations of insulin-dependent Diabetics to drive lighter vehicles (e.g., chocolate candy bars on the dash).

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