Diversity & Inclusion

Flurry of Disability Discrimination Claims Warrants Attention

The Equal Employment Opportunity Commission (EEOC) recently announced that a Hawaii employer agreed to pay $90,000 to settle a disability discrimination charge. That was just one of 19 settlements and lawsuits involving disability discrimination claims publicized by the EEOC since August 1, 2018. The flurry of EEOC activity and the high volume of disability discrimination claims being filed with the Hawaii Civil Rights Commission (HCRC) underscore the importance of including disability discrimination as an area of focus for employers’ compliance efforts.

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$90,000 Hawaii Settlement

In late August 2018, the EEOC announced that G4S Secure Solutions, Inc.—a national security company with offices in Hawaii—agreed to pay $90,000 to settle a disability discrimination charge filed by a Hawaii employee.

The EEOC alleged that the company failed to provide a reasonable accommodation for a security guard who required additional leave while undergoing medical treatment and instead fired the guard. The company denied liability but agreed to a settlement to resolve the charge.

The case resolved with G4S involved allegations similar to those in a lawsuit filed by the EEOC last year against another Hawaii employer. In that case, the agency alleged that the Blood Bank of Hawaii unlawfully failed to provide leave as an accommodation beyond the 12 weeks required by the Family and Medical Leave Act (FMLA) and allegedly terminated disabled employees who had exhausted leave or failed to return to work without restrictions at the end of their leave. That case is still pending.

Avalanche of Disability Claims

The settlement with G4S is just one of several lawsuits and settlements announced by the EEOC within the last couple of months involving alleged disability discrimination. Since August 1, the agency has announced the following settlements:

  • A convenience store chain agreed to pay $88,000 to settle a lawsuit filed by the EEOC alleging the company unlawfully refused to interview a deaf applicant who requested an interpreter.
  • A senior care company agreed to pay $40,000 to resolve a lawsuit alleging it denied employment to a caregiver based on a tuberculosis (TB) skin test even though a chest X-ray she submitted purportedly confirmed she didn’t have TB.
  • A commercial property management company paid $50,000 to settle a lawsuit filed by the EEOC alleging the company refused to extend a 30-day unpaid leave of absence by one week because the company had a 30-day maximum leave policy.
  • A marine transportation provider agreed to pay $165,000 to settle an EEOC lawsuit that claimed the company terminated an employee because of his pancreatitis even though the condition allegedly didn’t impede his work.
  • Coca-Cola Refreshments USA, Inc., agreed to pay $2.25 million to resolve nine charges that asserted it failed to accommodate employees with disabilities.
  • A scenic railroad agreed to pay an undisclosed amount to settle an EEOC charge alleging the company failed to conduct an individualized assessment of whether an applicant for a brakeman position could perform the essential functions with or without a reasonable accommodation for his disability.
  • Home Depot agreed to pay $100,000 to settle an EEOC lawsuit that claimed the retailer unlawfully terminated an employee with irritable bowel syndrome and fibromyalgia for leaving her post unattended instead of providing her with an emergency break as an accommodation.
  • A gas retail store agreed to pay $100,000 to settle an EEOC lawsuit alleging the company failed to accommodate an employee with a serious back impairment and fired him for complaining to management.

Since August, the EEOC has also announced it filed several new lawsuits alleging disability discrimination, including:

  • A lawsuit against an industrial supply company that allegedly terminated an employee rather than granting his request for unpaid leave to receive treatment and recover from prostate cancer;
  • A lawsuit claiming a Golden Corral franchisee unlawfully terminated an employee with epilepsy;
  • A lawsuit against two sheet metal companies alleging they fired an employee who lost an eye in an out-of-work injury and refused to permit him to return to work after he recovered from the injury;
  • A lawsuit alleging that a Cracker Barrel restaurant refused to hire a deaf applicant for a dishwashing position;
  • A lawsuit against a staffing company for allegedly denying employment to an applicant because of actual and perceived learning and mental disabilities;
  • A lawsuit against a media company for allegedly failing to accommodate an employee with cataracts and night blindness by removing the accommodation of an earlier shift and putting her back on a shift that ended at 9:00 p.m.;
  • A lawsuit against a tool manufacturer alleging the company terminated an employee who took leave for cancer treatment;
  • A lawsuit against a hotel chain for allegedly refusing to permit an employee with a chronic back impairment to use a chair while working at the front desk;
  • A lawsuit claiming an oil refinery withdrew a job offer after discovering the applicant had permanent vision loss in one eye; and
  • A lawsuit against a staffing agency and its manufacturing company client for allegedly refusing to provide a reasonable accommodation to an employee with a kidney condition.

Disability Claims #1 in Hawaii

The flurry of disability-related claims isn’t just a national phenomenon. For the third straight year, disability discrimination topped the list as the most common type of employment discrimination complaint filed with the HCRC. According to the commission’s most recent annual report, 24 percent of charges filed with the commission during fiscal year 2017 alleged disability discrimination. Age discrimination was the second most common at 18 percent of the charges filed.

The percentage of disability discrimination claims filed with the EEOC in Hawaii is also higher than the nationwide percentage, further illustrating that employers in the state should focus on ensuring compliance with disability discrimination laws.

Bottom Line

Although the reasons for the increasing numbers of disability discrimination claims aren’t clear, the recent EEOC activities and high volume of claims in Hawaii demonstrate that it’s worthwhile to focus on ensuring compliance with the disability discrimination laws. Additional training for HR professionals and managers is a good investment.

You should also review your leave policies. A common complaint—and one that the EEOC has demonstrated it is willing to pursue—is that a company has failed to accommodate a disabled employee by refusing to permit leave as an accommodation. You should remember that unpaid leave can be a reasonable accommodation.

Amanda M. Jones is a Partner at Cades Schutte LLP and an Editor for the Hawaii Employment Law Letter. She can be reached at ajones@cades.com.