The Equal Employment Opportunity Commission (EEOC) is the agency that enforces most federal employment laws. Periodic review of the EEOC’s website provides a moving picture of the types of claims the EEOC feels strongly enough to enforce by commencing litigation itself, as well as the kinds of risks these claims pose for employers. (To access a running list of press releases describing EEOC’s recent settlements and court successes, visit www.eeoc.gov and click on “Newsroom.”) While some of these claims appear to be egregious examples of garden-variety discrimination fact patterns, many of the cases present unusual issues — and all of them are instructional for employers that prefer not to receive an EEOC claim in the mail.

During a representative two-week period in May, the EEOC posted approximately 12 press releases regarding its most recent favorable (to the EEOC) litigation results. These are all lawsuits that EEOC commenced in federal court against employers on behalf of current or former employees. Following are examples of some of these postings, listed by the press release dates.

May 24, 2012, Age Discrimination: A school district in Arizona agreed to pay $148,000 to 49 employees to settle an age discrimination lawsuit regarding retirement. According to the EEOC’s press release, the district’s early retirement incentive plan offered greater economic benefits to younger employees to induce them to retire than it offered to older employees. While it might seem logical that younger employees would need more of an incentive to retire than older ones, employers should never lose sight of the fact that except for certain very limited exceptions, the Age Discrimination in Employment Act (ADEA) makes it unlawful to treat older workers less advantageously than younger ones solely because of their age.

May 24, 2012, Disability Discrimination: A nursing home in Oregon agreed to pay $80,000 to a single job applicant to settle a disability discrimination lawsuit. According to this press release, it appears that the applicant had completed all initial hiring procedures, and her start date had been discussed, when she was told that she had to pass a drug test as a final hiring screen. She mentioned that she had epilepsy and was taking a prescription medication for this condition that would show up on the drug test. She was then rejected for employment based on the drug test result, after she had quit her existing job. Presuming that the drug test result was negative, or at most showed the epilepsy medication, it seems clear that the employer actually made the decision not to hire because it did not want to have to deal with an epileptic employee.

Under the Americans With Disabilities Act (ADA), an employer must not ask applicants about disabilities, but if an applicant volunteers that she has a disability, the employer may not simply reject the applicant for that reason. It must conduct an interactive dialog with the applicant to determine whether the disability will actually restrict her ability to perform the essential functions of the job, and if so whether there is a reasonable workplace accommodation that would alleviate that restriction. In this case it appears that the employer simply rejected the disabled applicant without considering the reasonable accommodation issue, which violates the law.

May 29, 2012, Retaliation: This press release addresses a type of retaliation that is somewhat unusual but is important for employers to be aware of. EEOC sued a multinational chemical company on behalf of a class of employees who were presented with “last chance” agreements by the employer and were told that their employment would be terminated unless they signed the agreements. The agreements, if signed, prohibited the employees from filing discrimination charges with the EEOC, including charges related to things the employer might do in the future. Thus, continuing employment was conditioned on the employees waiving their right to pursue a remedy under the law for wrongful acts by the employer in the past and in the future. One of the employees refused to sign the agreement and was terminated. The judge granted summary judgment to this individual, ruling that his discharge for refusing to waive his rights constituted retaliation as a matter of law. The lawsuit continues for the other employees who signed the agreements to keep their jobs. Whenever employers ask employees to sign legal waivers, they should keep this case in mind and consider whether the circumstances of such waivers might give rise to a possible retaliation claim.

June 1, 2012, Religious Discrimination: In this case, a large retailer agreed to pay $70,000 to a single employee to settle a religious discrimination claim. The employee was Mormon and observed the Sabbath, and for almost 15 years the employer had accommodated his requests to take leave from work on Sundays. Then the employer changed its scheduling system and began disciplining the employee for absences on Sundays that he was scheduled to work. Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination, requires employers to accommodate employees’ religious convictions unless the accommodation would be a hardship for the company. Given the settlement in this case, the employer presumably decided that it would be difficult for it to establish such a hardship, which is not surprising since it had been able to accommodate this employee’s Sabbath need for so many years.

June 1, 2012, Disability Discrimination: This case illustrates a type of ADA violation that many employers commit out of ignorance, often by simply continuing a practice that was common prior to the enactment of the ADA. A health care employer maintained a policy that except for on-the-job injuries, employees who took medical leaves of absence were not allowed to return to work unless they could do so without any medical restrictions. Such a policy violates the ADA, because employers are required by that law to provide reasonable accommodations for employees’ disabilities. An employer should never require employees returning from medical leave to be medically 100 percent. Instead, returning employees may be required to inform the employer if they have any medical restrictions (e.g., no lifting over 20 pounds, no standing more than two hours at a time), and if so, the employer must consider whether it can accommodate such restrictions. In this lawsuit, the employer agreed to pay $31,000 to two former employees who were not allowed to return to work because they had physical impairments, not related to work injuries, that prevented them from doing their jobs without accommodation.

June 6, 2012, Retaliation: This case illustrates another somewhat unusual method of retaliation. A former employee of a child care facility filed an EEOC discrimination charge against her former employer, which then filed a lawsuit against her alleging that she made fraudulent statements about it in her EEOC charge. Such a tactic is bound to result in a retaliation claim. Employers may understandably become angry when accused of discrimination, but they need to restrain their anger and act with moderation. In this case, the employer’s action caused EEOC to file a retaliation lawsuit against it, and settling that lawsuit cost $40,000. Interestingly, the former employee got the lawyer who had sued the former employee on its behalf to contribute some of the money for this settlement.

June 6, 2012, Disability Discrimination: This case is similar to a May 24 press release discussed earlier. During a casual conversation, an employee’s mother revealed to his employer, a garden center, that her son had hemophilia. Following that conversation, the employer told the employee not to return to work. EEOC took the position that this was discrimination based on a perception that the employee was disabled, a classic type of claim under the ADA. If the employer thought the employee’s disability would interfere with his ability to do the job, it was required to discuss reasonable accommodation issues with him. Settling this case cost the garden center $50,000.

The foregoing are just some of the press releases posted by EEOC during a two-week period. All of them describe successful results achieved by EEOC in lawsuits that it filed on behalf of employees or former employees. By paying attention to these kinds of results and educating your managers not to act like the employers in the press releases, you may increase your ability to prevent such lawsuits.

For more information about how this may impact your business, or for assistance with preventative measures to help avoid facing EEOC claims, please contact:

• Philip H. McIntyre (716.844.3422; pmcintyre@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Labor and Employment Practice Group