The Equal Employment Opportunity Commission (EEOC) has quietly maintained its focus on disability discrimination. Since July 1, 2018, the agency has filed 19 lawsuits alleging various violations of the Americans with Disabilities Act (ADA) and has collected more than $6 million in settlements.
Leave policies. A major area of focus for the EEOC is employer leave policies that haven’t been updated to align with its position on leave as a reasonable accommodation. One of the agency’s six national enforcement priorities is eliminating employers’ maximum or fixed-leave limits for workers and “100 percent healed” policies. The EEOC recently settled a case involving such a policy.
Mueller Industries agreed to pay $1 million for failing to grant extended leave to employees with medical conditions. The company held its employees to strict limits on how much time they could take off and required them to be fully healed before they returned to work. The EEOC accused the company of violating the ADA by discharging disabled workers for using leave as a reasonable accommodation or for exceeding the limits set out in its “maximum leave” policy.
Other recent settlements involving an employer’s maintenance of a leave policy that fails to reasonably accommodate disabled workers include a $2.25 million settlement with Coca-Cola, a $3.5 million settlement with Las Vegas tavern chain Dotty’s, and an $832,500 settlement with Associated Fresh Market. (Details on the Coca-Cola and Fresh Market settlements are included below.)
Prescription drug policies. The EEOC is also targeting employers’ prescription drug policies. Some employers that require drug testing have been firing employees without investigating their prescription drug use. According to the agency, the failure to investigate why an employee is taking prescription drugs violates the ADA’s requirement that an employer engage in an individualized assessment to determine what, if any, impact prescription drug use might have on the employee’s ability to perform her job.
ADA website accessibility lawsuits. While the EEOC is pushing reasonable accommodation litigation, plaintiffs’ attorneys have been filing lawsuits alleging violations of the ADA’s public accommodation requirements based on website accessibility. In 2017, lawsuits alleging website inaccessibility were filed against 814 companies. In 2018, 685 lawsuits have been filed so far, most of them in either the 2nd Circuit or the 11th Circuit. Not much guidance on what the ADA requires for website accessibility has been provided to employers. In fact, the U.S. Department of Justice (DOJ) recently placed its ADA website compliance guidelines on its “inactive list.”
Recent website accessibility lawsuits filed in California under the ADA allege that online job application systems maintained by Hard Rock Café, GameStop, Dart Container, Albertsons, and seven other employers discriminate against blind applicants. Visually impaired individuals require screen reader software that allows them to “read” Internet sites. While there are questions about whether federal law requires websites to be accessible to disabled individuals, California provides for money damages if a company fails to accommodate a disabled user or discuss potential accommodations.
Employer takeaways. In light of the increased focus on disability discrimination by both the EEOC and plaintiffs’ attorneys, employers should:
- Review their absence/leave policies to eliminate any maximum leave or “100 percent healed” requirements;
- Determine whether their website is accessible to disabled individuals, and if not, implement any changes needed to make it accessible; and
- Ensure that visually impaired applicants can use your online application system.
While there are no regulations addressing website accessibility, employers can use version 2.0 of the Web Content Accessibility Guidelines (WCAG), which is the standard used by the federal government for its websites. The WCAG has also been cited as a model by the DOJ.
Recent Race Discrimination Settlement
On September 14, the EEOC announced that Cargill Meat Solutions will pay $1.5 million and provide antidiscrimination training for its managers and employees to resolve allegations that it denied prayer breaks to and harassed 138 Muslim, Somali, and African workers.
Recent Disability Discrimination Settlements
On August 23, Coca-Cola Refreshments USA, Inc., agreed to pay $2.25 million and update its policies and procedures to improve accommodations provided to employees returning to work after disability-related absences. The company will also establish a dedicated accommodation and leave management team to provide assistance to its employees. Monetary payments will be distributed among the employees who filed discrimination charges and donated as annual financial support to select “non-profit entities dedicated to helping individuals with disabilities find and keep employment.”
On July 12, Associated Fresh Market (AFM) agreed to pay $832,500 to resolve allegations of disability discrimination uncovered during an EEOC investigation. The investigation revealed that AFM had a practice of disciplining or firing employees because of their need for reasonable accommodations under the ADA. Although it denied that it violated the ADA, AFM acknowledged a need to improve its interactions with job applicants and employees who have disabilities. In addition to making monetary payments to the discrimination victims, AFM agreed to change its ADA policies and procedures and conduct training for its HR team and all store directors, assistant store directors, and employees.
Recent Gender Discrimination Settlements
On July 17, Estée Lauder agreed to pay $1.1 million to resolve an EEOC lawsuit charging it with engaging in sex discrimination against male employees. The EEOC alleged that Estée Lauder discriminated against a class of 210 male employees who were new fathers by providing them less paid leave to bond with newborn or newly adopted or fostered children than it provided new mothers. The agency also alleged that the company unlawfully denied new fathers the same return-to-work benefits it provided new mothers, such as temporary modified work schedules to ease their transition back to work after the arrival of a child and their exhaustion of paid parental leave.
The consent decree requires Estée Lauder to administer its parental leave and related return-to-work benefits in a manner that ensures equality for male and female employees and uses sex-neutral criteria, requirements, and processes. The settlement applies retroactively to all employees who experienced a qualifying event (i.e., birth, adoption, or foster placement of a child) since January 1, 2018. The decree also requires Estée Lauder to provide training on unlawful sex discrimination and allow monitoring by the EEOC.
Juanita M. Beecher is an attorney with Fortney & Scott, LLC in Washington, D.C. and contributor to Federal Employment Law Insider. She may be contacted at nbeecher@fortneyscott.com.