Employment Law

EEOC Ends Fiscal Year with a Flurry of Suits

The Equal Employment Opportunity Commission (EEOC) operates under a fiscal year (FY) that runs from October 1 to September 30. An FY-end tradition for the agency is to file as many lawsuits as possible on or before September 30 so that they will count toward the statistical measures for the closing FY.EEOC

This year was no exception, and the EEOC filed scores of lawsuits in September throughout the country. In North Carolina, the Charlotte district office filed three such lawsuits. The cases show where the agency is currently focused and where it may be going in the future.

Matthews Restaurant Faces Disability and Sexual Harassment Claim

The first case involves “Alvin,” who was hired in February 2014 as a dishwasher at a Golden Corral restaurant in Matthews. He worked 2 to 5 days per week and was regularly scheduled to work the closing shift.

Alvin has high-functioning autism. The EEOC claims that from September 2014 to January 2016, the assistant manager responsible for the closing shift engaged in verbal and physical conduct of a sexual nature toward Alvin.

The alleged conduct included telling him on multiple occasions to perform oral sex on the manager, threatening him with anal rape, pinching his buttock, penetrating his rectum with a finger, and using profane language toward him constantly even though he asked the assistant manager to stop using such language.

The EEOC also alleges that Alvin was harassed by the assistant manager because of his disability. The lawsuit claims that the assistant manager called him a “retard,” “stupid,” and “weird,” and claimed Alvin was on drugs.

On January 16, 2016, Alvin went to the restaurant, accompanied by his parents, and filed a formal complaint with the general manager and a district manager. On January 19, the HR manager called him, and he reiterated his complaints.

The agency claims that the company never adequately investigated the complaints, nor did it take any appropriate corrective action or advise him regarding how he would be protected at work from future harassment. Accordingly, he was unable to return to work, which amounted to a constructive discharge. The lawsuit seeks back pay and compensatory and punitive damages.

Based on the pleadings in this case, it appears that one of the key issues will be whether the restaurant has a legal defense available because Alvin failed to take advantage of its antiharassment policy. In likely anticipation of this issue, the EEOC’s lawsuit alleges that although he was provided with the policy, he received no training on it, and his disability precluded him independently reviewing and understanding it.

Raleigh Grocery Store Charged with ADA Violation

The second case involves “Melanie,” who began working for Whole Foods in Raleigh as a cashier in October 2005. Her job duties included assisting customers with the checkout process, performing all cash register functions, bagging groceries, and working at the customer service desk on occasion.

Melanie has a physical impairment known as polycystic kidney disease (PKD), a genetic condition causing uncontrolled growth of cysts in the kidneys and eventual kidney failure. Because of her impairment, she had a kidney transplant in March 2009. Since the transplant, she must take antirejection and immunosuppressant drugs daily and must see her doctor for regular monitoring.

Whole Foods had an “absenteeism and tardiness” policy under which three reported absences within a 30-day period were deemed excessive. According to its corrective action procedure, a violation of the absenteeism policy would warrant written corrective action, including written warnings and/or discharge.

If another violation occurred within 12 months of the initial written warning, a final written warning would follow, remaining in place for 6 months and then reverting to a written warning. Once an employee was issued a final written warning, the next related offense within 6 months would result in discharge.

From approximately December 12 through December 16, 2015, Melanie was hospitalized because of her disability. She was scheduled to work on December 12. Before her shift began that day, she informed a customer service team leader that her doctor was immediately checking her into the hospital because of her disability. The team leader approved her absence.

Melanie was scheduled to work again on December 14. Before her shift that day, she called a store associate team leader to say that she was still in the hospital because her doctor thought her kidney was shutting down.

Melanie was released from the hospital on December 16. She was scheduled to work on December 17, but before her shift began, she spoke with the store associate team leader to explain she would be unable to work because she had just been released from the hospital. The team leader told her it would be okay for her to miss work that day. According to the EEOC’s lawsuit, Whole Foods counted her absence on December 17 as a violation of its absenteeism policy.

Melanie returned to work on December 18. During her shift, she informed a customer service associate team leader that she would be unable to work her scheduled hours on December 22 because of a doctor’s appointment to check that her kidney was functioning at a healthy level following her hospitalization. The customer service associate team leader removed her from the schedule for December 22, and the store counted that absence as a violation of its absenteeism policy.

On December 24, Melanie was working her scheduled shift when a front-end supervisor/associate team leader offered her the option to leave early. She agreed and did so. The store then counted the early departure as an absence under its absenteeism policy. On January 4, 2016, the store terminated Melanie’s employment because she had three reported absences within a 30-day period, which it deemed excessive under its absenteeism policy.

The EEOC alleges that at least two of the three absences for which Melanie was terminated were because of her disability and, by implication, shouldn’t have been counted against her. In doing so, the store had refused to provide her with the reasonable accommodation of modifying its absenteeism policy as it applied to her disability-related absences in violation of the ADA.

This case should be interesting. First, there’s undoubtedly more to the facts than what’s recited in the EEOC’s complaint. Second, the agency seems to be taking the position that as long as the absences were the result of Melanie’s disability, they couldn’t be counted against her. If this position is accepted and taken to its logical extremes, it would in essence grant indefinite job-protected leave.

Morehead City Rehab Center in ADA Lawsuit

In the third case, the EEOC alleges that a certified nursing assistant with rheumatoid arthritis was denied a reasonable accommodation and then unlawfully fired by a residential rehabilitation facility because of her disability.

Harborview Rehabilitation and Healthcare Center in Morehead City hired “Rachael” in April 2015. Rachael has rheumatoid arthritis (RA), an autoimmune disorder that she managed with prescription medication. Without medication, she has difficulty picking up or gripping objects. In July, Rachael was unable to fill her RA prescriptions because she hadn’t received her insurance card from Harborview, and as a result, she experienced an arthritis flare-up. By August, she resumed her medication regimen and requested 4 weeks of light duty to allow the medication to take effect.

In response, Harborview placed Rachael on unpaid leave, never considered her request because its policy only allowed light duty for job-related injuries, and offered her no other accommodation. Although it had been informed that she could return to full duty at the end of the 4 weeks for which she requested light duty, the company fired her for exceeding its maximum 2-week leave policy for employees not yet eligible for leave under the Family and Medical Leave Act (FMLA).

This is another case in which the EEOC alleges that the employer failed in its duty to reasonably accommodate an employee by making an exception to one of its policies. It will argue that allowing two additional weeks of leave wouldn’t have been an undue hardship for Harborview. The employer may have a different version of the facts, and we will need to see how this case plays out.

Bottom Line

With the expanded definition of disability under the ADA, we continue to see increases in ADA litigation. In these latest cases, the key question becomes not whether the individuals have disabilities, but whether the individuals are “qualified” and whether the employers could have reasonably accommodated them. Modifying leave policies as a reasonable accommodation is an area ripe for litigation because there are often no clear lines when deciding whether an accommodation is reasonable or whether it creates a hardship. We expect the EEOC to continue to look for opportunities to litigate this issue.

Richard L. Rainey is an editor of North Carolina Employment Law Letter and may be reached at rrainey@wcsr.com.