The Americans with Disabilities Act (ADA) figured prominently in the tributes surrounding the death of former President George H.W. Bush. One poignant story emphasized Bush’s wry humor as well as how the stroke of his pen in signing the Act into law in 1990 made the physical world more accessible for disabled Americans. After he began using a wheelchair, his staff had to park his limousine a few blocks from a speaking engagement and push him quickly to the venue. As they maneuvered over the curb cuts and ramps the ADA mandated, Bush reportedly quipped, “Those ramps and those sidewalks are very convenient. Who thought of putting those there?”
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In 2018, the Equal Employment Opportunity Commission (EEOC) aggressively enforced the ADA through litigation. In the last five months of the year, the agency publicized at least 20 settlements or lawsuit filings against employers for alleged violations. That sent a strong signal that as the nation approaches the 30th anniversary of the civil rights law, there still is much work to be done to achieve full compliance.
Embattled Workplaces
One of the recent EEOC press releases trumpeted the lawsuit the agency filed in September 2018 based on discrimination charges made by four Arizona employees and one Idaho employee of Corizon, the private, for-profit contractor that provides medical and mental health care in the state prison system.
The Arizona prison system settled an earlier lawsuit more than four years ago over inadequate inmate health care. Since then, former Corizon employees have come forward to blow the whistle on an alleged failure to comply with the settlement. In June 2018, a federal judge issued a scathing order finding the state in contempt. These are the already embattled workplaces at issue in the ADA lawsuit filed by the EEOC in federal court in Arizona.
The EEOC alleges that Corizon refused to engage in the interactive process with employees with disabilities who exhausted their leave under its 30-day medical leave policy or the Family and Medical Leave Act (FMLA). The agency claims that Corizon implemented its leave policies in a manner that served as a qualification standard and a method of administration that screened out or tended to screen out qualified individuals with disabilities.
The EEOC claims that Corizon discriminated against qualified persons with disabilities by requiring employees with disabilities to be 100% healed or to be free of any medical restrictions before they could return to work. Employees who had medical restrictions were fired because of their disability or their need for accommodation, according to the lawsuit. The EEOC also claims that Corizon subjected employees to a hostile work environment based on disability, failed to promote qualified individuals because of their disabilities, and retaliated against some of the four employees and other qualified aggrieved individuals by, among other things, disciplining them for leave used due to disabilities and assigning them more strenuous job duties.
‘Deal With It’
There’s a common theme in the alleged mistreatment of the four Arizona women on whose behalf the EEOC is suing Corizon. In each case, rather than engage in good faith in the interactive process, Corizon allegedly told the disabled employees to “deal with it.” Hint: That is a quick way to get unwanted attention from the EEOC.
Ann Pogue, a mental health technician, sustained severe neck and back injuries on the job in 2006 and suffered from asthma. She worked 7:00 a.m. to 3:00 p.m. organizing files in a medium security prison facility, which allowed her to schedule medical and physical therapy appointments after her shift so she didn’t have to miss work. Corizon moved her to another location and changed her work schedule, despite her objections that the maximum security facility used products that exacerbated her asthma and had two stories—requiring her to climb stairs and putting more strain on her back—and that the 8:00 a.m. to 5:00 p.m. schedule left her no time for the medical appointments she needed. According to the lawsuit, she was told she had to “deal with it.” Her condition worsened, and she took FMLA leave for surgery. When the FMLA leave ran out and she was not 100% healed, the company refused to let her return to work on modified duty and ended her employment.
Elizabeth McCrehin had foot surgery to repair an injury and suffered a broken toe bone during the procedure, which prolonged her recovery beyond the medical leave available to her. She submitted medical documentation that she would be able to return to work after a period of additional leave, but Corizon allegedly would not extend the leave and terminated her employment for “health reasons.”
Nicole Moore had a cardiac condition that caused palpitations, dizziness, and fatigue. She was never told she had any right to leave and was repeatedly disciplined and reprimanded for missing work because of her medical condition. According to the lawsuit, she complained to corporate HR, after which her immediate supervisor demanded that she turn in her ID and asked another employee to escort her off the facility in front of coworkers, corrections officers, and prison inmates. Through the intercession of corporate HR, Moore came back to work, but her local managers refused to speak with her even when she was in the same group as other employees with whom they spoke. Moore eventually resigned, but the EEOC is suing for constructive discharge, claiming she had no choice but to quit to escape intolerable working conditions.
Linda Magnelli had multiple medical conditions and used a cane or a rolling walker. During a staff meeting, her supervisor told her he wished someone had asked him whether she could use her cane because he wouldn’t have allowed it. The lawsuit claims her supervisor kept ratcheting up the physical demands of her work assignments, which aggravated her disabilities until she had to go on medical leave. When she wasn’t able to return to full duty after she had exhausted her medical leave, Corizon fired her, also for “health reasons.”
Lengthy Litigation Ahead?
The lawsuit is in its early stages, and Corizon has denied violating the ADA. It will be interesting to see whether it has the appetite to continue the fight with the EEOC in defense of its leave and 100%-healed policies.
The EEOC has firmly staked out the position that additional leave beyond that provided by the FMLA or an employer’s own policies may be a reasonable accommodation under the ADA. Likewise, the agency’s view is that employers cannot require employees to achieve 100% healing before they can return to work because the ADA requires reasonable accommodation of a disability.
To date, employers have settled with the EEOC rather than battle it out to a definitive court ruling on whether the the agency is right on what the ADA requires. Given the other challenges Corizon is facing in Arizona, it seems an unlikely candidate for fighting the EEOC to the finish. We will monitor the lawsuit and keep you posted on developments.
Dinita L. James is a Partner in the Gonzalez Law, LLC law firm in Tempe, Arizona and is an Editor for the Arizona Employment Law Letter. She can be reached at dinita.james@gnzlaw.com or 480-565-6400.