ADA & Disabilities

When an Employer Overshares About a Pending ADA Lawsuit, the EEOC Gets Involved

“Oversharing” is a common complaint these days. I know that my own adult children warn me that I am oversharing when I disclose too many details about my personal life to them. But even a well-meaning employment attorney can overshare without realizing it.ADA

In the following case, oversharing put an employer in hot water with the Equal Employment Opportunity Commission (EEOC) and created more legal headaches than the original Americans with Disabilities Act (ADA) charge brought by a former employee.

Background

The facts in this Connecticut case are simple. Day & Zimmerman NPS, Inc., provides maintenance services to power companies. When a nuclear power station needed to perform its semiannual routine maintenance in 2012, Day & Zimmerman provided the needed manpower by hiring temporary craft workers, including electricians, pipe fitters, and welders. It hired approximately 150 union electricians through local Brotherhood of Electrical Workers hiring halls.

“Stan,” a licensed electrician, was hired through a local union hiring hall and began training with Day & Zimmerman. While he was still in training, he gave the company a doctor’s note that stated he couldn’t work around radiation. The note, from a pulmonary medical group, stated that his lung disease prevented him from working in areas where he would be exposed to radiation or chemicals and requested that his disability be reasonably accommodated. Day & Zimmerman told him it couldn’t provide a reasonable accommodation and promptly fired him.

Stan filed a timely charge of discrimination with the EEOC alleging he had been discriminated against on the basis of a disability. He claimed that 90 percent of the nuclear power station where he had been scheduled to work didn’t contain radiation and he could have been reasonably accommodated. Instead, he was terminated.

The EEOC began an investigation of Day & Zimmerman based on Stan’s charge of disability discrimination. The agency asked for a list of the other 146 electricians who had been hired to work at the nuclear power plant in the fall of 2012, including their names, job titles, dates of employment, addresses, and telephone numbers. The employer initially resisted the request but eventually provided the information.

The Ill-Advised Letter

Day & Zimmerman’s employment attorney decided to send a letter to the electricians whose contact information had been provided to the EEOC. She wanted to let them know, as a courtesy, that their contact information had been given out and they might receive a phone call from an EEOC investigator.

The letter also offered representation by an attorney provided by Day & Zimmerman if an employee chose to speak to an investigator. The employment attorney also wanted the employees to know that it was their choice to speak to the EEOC, but if they did, they wouldn’t face retaliation.

However, the letter also included details about Stan’s claim of employment discrimination against Day & Zimmerman. It named him as the electrician who had filed an ADA claim; restated his EEOC charge, including the fact that his doctor told him he couldn’t work around radiation or chemicals; and repeated his claim that the majority of the nuclear power station didn’t contain radiation. The letter went on to deny that Day & Zimmerman had discriminated against Stan or had done anything wrong.

EEOC Brings Two Charges Based on Letter

The EEOC was very upset about the attorney’s letter because it disclosed information about Stan, his doctor’s note, and his request for accommodation. The only thing the letter didn’t share was the fact that he has a lung condition. The agency filed a lawsuit, separate from Stan’s original charge, alleging that by sending the letter, Day & Zimmerman had retaliated against Stan for filing an administrative charge, in violation of the ADA, and interfered with his—and the letter recipients’—ability to exercise ADA-protected rights by creating the chilling effect of unwanted publicity.

Day & Zimmerman argued that sending the letter wasn’t an adverse employment action, even though it identified Stan and his ADA charge. However, the court noted that the definition of “adverse employment action” is broader in retaliation cases than it is in discrimination cases.

In a retaliation case, an adverse employment action is something that could dissuade a reasonable worker from making or supporting a charge of discrimination. Stan testified that after the letter was sent out, he didn’t receive as many union jobs from the hiring hall, and when he was hired, he was the first one laid off. Those facts alone, the court found, could persuade a reasonable jury that sending the letter was an adverse employment action against him.

Day & Zimmerman also argued that it sent the letter to employees to minimize the disruption to its business. In previous investigations, its HR department had to answer multiple questions about why it had provided employees’ names and telephone numbers to the EEOC and what, if anything, employees were required to tell the investigator. By sending the letter, the company argued, it was able to answer 146 employees’ questions all at once and reassure them that they wouldn’t be retaliated against if they chose to cooperate with the EEOC’s investigation.

The court quickly disposed of that argument. If the letter was simply intended to minimize business disruption, it didn’t need to include the information identifying Stan, the nature and subject matter of his ADA charge, and specific information about the accommodations he sought, including his doctor’s request that he not work in an area where he would be exposed to radiation or chemicals.

In the end, the court held that a jury could determine that the letter and the company’s reasons for sending it were either retaliation or interference with Stan’s ability to exercise his rights under the ADA, or both. The court decided that at this point, the case must proceed to a jury trial. EEOC v. Day & Zimmerman NPS, Inc., U.S.D.C., Conn. Case No. 15-cv-1416 , August 22, 2017.

Takeaway

The takeaway should be obvious: Don’t share the details of a discrimination charge filed against your organization with your employees—or with anyone else, for that matter. It would have been sufficient, and not an adverse employment action, to inform the 146 electricians that their contact information had been given to the EEOC and that whether or not to cooperate with an “ongoing charge of discrimination” was their choice.

It wasn’t even necessary to identify the discrimination charge as an ADA claim. By oversharing and identifying the charging party by name, including a description of his doctor’s note and his requested accommodation, the employer set itself up for further discrimination charges and more legal headaches.

Barbara J. Koenig, a contributor to New Mexico Employment Law Letter, can be reached at barbara@frjlaw.com.