The EEOC appears to be stepping up its efforts on the reasonable accommodation front. On June 20th, the agency issued two press releases announcing settlements with employers, one a non-profit and the other a larger retailer. The agency alleged that these employers failed to reasonably accommodate qualified disabled applicants and employees. This follows a settlement announced in May on a reasonable accommodation failure by a hotel. And just this past week, it issued yet another press release announcing a new lawsuit against a limousine service for failing to discuss reasonable accommodations with an otherwise qualified applicant.
A brief review of the cases is instructive. On May 30, the EEOC announced that Hyatt Corporation would pay $85,000, provide paid leave worth approximately $15,000, and furnish other relief to settle a lawsuit in which the agency alleged that a Hyatt hotel refused to accommodate an employee with a back impairment. The employee’s condition was aggravated by prolonged standing required by his duties as a front desk agent. The employee requested an accommodation in the form of use of a chair while working at the front desk.
The hotel initially granted that request, then withdrew that permission after two-weeks, and refused to discuss alternative accommodation possibilities. The EEOC concluded that the accommodation request was reasonable, that use of a chair did not interfere with the agent’s duties and did not impose on the employer an undue hardship. This is one of many chair cases the EEOC and state FEP counterparts have pursued over the years.
One of the June settlements involved a case the EEOC brought against an Illinois childcare and child education nonprofit, Illinois Action for Children (IAFC). IAFC agreed to pay $60,000 as part of a consent decree to a former employee who was terminated while on leave for breast cancer treatment which included surgery and extended follow-up treatments. The employee requested an accommodation in the form of a leave of absence from June 2015 through November 2015. IAFC granted the employee leave until September 30, 2015 but denied her request for the additional two months. IAFC terminated the employee in mid-October. The EEOC argued that this accommodation request was reasonable.
In the other settlement, Value Village agreed to pay $45,000 to settle a lawsuit the EEOC had filed on behalf of an employee who worked as a stocker. The employee suffered from a chronic lung condition that compromised her ability to perform strenuous tasks and required the use of supplemental oxygen. The employee made repeated requests for permission to use a portable oxygen tank and to be transferred to a less strenuous position to prevent aggravating her conditions. The employee, resigned after being hospitalized, alleging that Value Village’s denial of her accommodation requests had compromised her health. The EEOC took the position that these accommodation requests were reasonable in light of the circumstances.
Finally, on June 24, the EEOC issued yet another press release stating that it had filed suit against a Chicago area limousine service for rejecting a deaf individual’s application for a driver position. The EEOC said that the limo service told the applicant that it could not hire him because he is deaf, despite the fact that he met the qualifications for the position. The rub here was that the employer rejected the application outright, without considering whether the applicant could do the job with or without reasonable accommodations.
These cases illustrate certain realities when it comes to dealing with applicants and employees with disabilities. Not only must employers make serious and earnest efforts to reasonably accommodate qualified disabled employees and applicants, they must properly document those efforts as well.
First lesson: chair cases are easy – don’t make them hard. If an applicant or employee requests a chair or a stool to accommodate a disability (once you confirm that a chair will assist the employee perform the essential functions of the employee’s position), then provide a chair or stool. Other employees probably will complain that this employee gets to use a chair and they don’t. Tell those complainers to have some compassion and get over it.
Second, extended leave of absence cases are hard. For reasons too numerous to detail here, extended leaves of absence can and usually do create real hardships not just for employers but for the employees’ coworkers who often bear the burden of extra work necessitated by the absences. On the other hand, if an employee needs an extended leave to treat or recover from symptoms caused by a disabling condition, they usually are in pretty bad shape and may not ever recover 100%. Natural sympathies are going to lie with the employee.
Although sympathy is not a factor the ADA or the EEOC cites as a factor in determining the reasonableness of an accommodation request, it’s a factor. Regulators, judges and jurors are going to sympathize with the employee, who they will see as twice victimized, once by the disability and again by the employer.
Third, get familiar with the “interactive process.” The EEOC takes the position that an accommodation request triggers “an informal, interactive process between the individual and the employer” whereby the employer will consider the specific request made by the employee along with any alternative suggestions for reasonable accommodations the employer may have. It also requires a discussion the effectiveness of the alternatives. Often, however, the viability of a failure to accommodate claim is based not on the decision that was made in the end, but on the process the employer followed to reach that decision. The EEOC will always take a hard look at that decision-making process to determine whether the employer seriously considered the accommodation request and engaged in good faith in an interactive dialogue with the employee, the employee’s manager and the employee’s health care providers in reaching its conclusions.
Fourth, read the Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. It is a valuable resource in predicting how the EEOC views the more common reasonable accommodation issues that arise in the workplace. For example, relevant to the Value Village case is the following guidance: “The employer is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time. In order to narrow the search for potential vacancies, the employer, as part of the interactive process, should ask the employee about his/her qualifications and interests. Based on this information, the employer is obligated to inform an employee about vacant positions for which s/he may be eligible as a reassignment.”
Finally, on the particularly difficult questions, call an experienced employment law attorney. You may not have encountered a particular accommodation predicament before, but chances are that some other employer has and has discussed the issue with their lawyer. Lawyers talk to each other about such matters all the time. Take advantage of that collective experience and pool of knowledge. It will be money well spent.