Reading the EEOC’s tea leaves: Year-end disability cases reveal priorities

By: Miriam L. Rosen

The EEOC has a fiscal year-end tradition of filing a flurry of cases in September that reflect its key enforcement priorities.  This year was no different. Hitting a five year high, the EEOC filed 86 new lawsuits in September 2017.  The cases reveal clear trends and highlight EEOC priorities.

Reflecting a key priority under its Strategic Enforcement Plan, the EEOC made alleged violations of the American Disabilities Act (“ADA”) a target of its year-end activity.  Over 40% of the new filings – 36 cases – involved ADA violations, including claims alleging failure to engage in the interactive process, failure to provide reasonable accommodations, and maintenance of inflexible leave policies.  So, let’s read the EEOC’s tea leaves to see what insights these new disability discrimination claims can provide employers focused on ADA compliance.

  • In one case, the EEOC alleges that an employer failed to accommodate a security officer who, without any explanation, was removed from her desk job and placed in a foot patrol position. The officer had trouble in the foot patrol position because of a medical condition and asked to return to her seated security position as a reasonable accommodation. The EEOC alleges that the employer violated the ADA when it did not engage in the interactive process, refused the employee’s accommodation request, and ultimately discharged her.
  • In another case involving reasonable accommodations, the EEOC alleges that a hospital failed to transfer an employee with an indefinite lifting restriction to a vacant position.
  • The EEOC alleges in another complaint that a hospitality industry employer terminated an area sales manager after it learned that she had breast cancer and would need time off. The complaint claims that the employer refused to grant leave as a reasonable accommodation; instead, the company fired the employee just one week before she was scheduled to undergo surgery.
  • Zeroing in on its now well-establish priority of combatting inflexible leave policies, the EEOC alleges that another employer violated the ADA by refusing to accommodate a worker recovering from wrist surgery by providing extended leave and terminating her because of her disability.
  • In yet another case, the EEOC asserts that a Hawaiian employer violated the ADA in two ways of particular concern to the agency. The EEOC contends that the employer maintained a rigid maximum leave policy that did not allow disabled employees leaves of absence as a reasonable accommodation beyond the required 12 weeks under the FMLA. In addition, the employer allegedly did not allow employees to return to work if they had any medical restrictions at the end of the FMLA leave period.

It is important to recognize that at this stage the claims noted above are based on the EEOC’s allegations, the employers will defend these claims, and the outcomes of these allegations are uncertain. However, the volume of disability cases is a clear message to employers that a year into a new administration the EEOC is still continuing to focus aggressively on pursuing disability discrimination as an enforcement priority.

Employers can take steps to limit the likelihood of ADA violations by:

  • Ensuring that they are effectively engaging in the interactive process to identify reasonable accommodations and documenting those efforts;
  • Evaluating the need for extended leaves as a reasonable accommodation, rather than maintaining inflexible leave policies; and
  • Eliminating policies that require employees to return to work “100% healed.”

This article was written by Miriam L. Rosen, who is a member of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. November, 2017.