EEOC Lawsuits Focus on Employer's Reasonable Accommodation Obligation

In the past few weeks, the U.S. Equal Employment Opportunity Commission (EEOC) has filed suits alleging violations of the Americans with Disabilities Act (ADA) against several large employers, including Kohl's Department Stores, Ford Motor Co., and air transporter SITA Information Networking Computing USA. The suits all focus on when and how employers must provide reasonable accommodation.

One important aim of the Americans with Disabilities Act Amendments Act (ADAAA) of 2008, effective Jan. 1, 2009, was to take away the courts' previous focus on the definition of disability and place that focus on whether employers are meeting their legal obligations to refrain from disability discrimination and to provide reasonable accommodations.

"Under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person's impairment," the EEOC said in a statement issued March 24, 2011.

These new filings illustrate that the agency is aggressively pursuing this refocused approach to disability bias. Employers need to take note, and, if they have not already done so, follow the EEOC's lead and concentrate not on whether an employee is disabled within the meaning of the ADA but on what they can reasonably do to accommodate that employee.

The case against Ford, the second largest automaker in the United States, was filed in federal court in Michigan on Aug. 26, 2011. The EEOC is claiming that the company failed to provide a reasonable accommodation to an administrative employee with a gastro-intestinal condition who was working at its Dearborn facility by refusing to let her telecommute (work from home). Instead, the suit charges, Ford began to criticize her performance, placed her on a performance enhancement plan and discharged her only months after she complained about being denied an accommodation.

The suit against Kohl's, filed in federal court in Maine on Aug. 23, alleges that the nationwide, Wisconsin-based retailer violated the ADA when it refused to accommodate a diabetic employee's request for a regular schedule and forced her to quit her job at a Westbrook, Maine, Kohl's store. The agency claims that the worker began to suffer significant complications from her diabetes after Kohl's switched her from her long-held set schedule to an irregular schedule and that her oral requests for a return to a set schedule were repeatedly ignored. Even after the employee brought in a note from her doctor that explained the need for her to work a predictable day shift to help prevent serious complications from her diabetes, Kohl's again refused to change her schedule, the complaint alleges.

Kohl's refused to accommodate the employee, the agency states, even though it had numerous employees on set schedules and had accommodated employees' scheduling requests for such reasons as day care, transportation and other personal needs.

The complaint against SITA, an Atlanta-based air transport communications company, filed on Aug. 30, stems from a job applicant who received an offer of employment to serve as the personal assistant to a company vice president, only to learn that she would need cancer surgery. According to the EEOC, the applicant asked that her start date be moved back, and that she be allowed to work part-time for the first two weeks. The company said no and rescinded the job offer.

An EEOC attorney emphasized, "Employers are obligated to engage in an interactive process with employees and to provide reasonable accommodations for their disabilities, unless to do so would result in an undue hardship on the business operation. Refusing to even consider an employee's request for a reasonable accommodation is tantamount to a clear violation of the ADA."

SESCO Management Consultants is available to assist with your human resource issues, including compliance with ADA regulations. You may contact us by phone at 423-764-4127 or by email at sesco@sescomgt.com .