Diversity & Inclusion

New EEOC General Counsel Calls Bias Damages Caps ‘Unacceptable’

In a recent interview, Equal Employment Opportunity Commission (EEOC) General Counsel Karla Gilbride argued the damage limitations on employees’ recovery under federal employment discrimination laws are “morally unacceptable.” Currently, total compensatory and punitive damages are capped for the largest companies at $300,000. Congress established the limits when it passed the 1991 revision to Title VII of the Civil Rights Act of 1964, which added jury trials as well as compensatory and punitive damages. Gilbride believes the 1991 limits are out of step with inflation and encourage employers to consider discrimination as just the cost of doing business.

In a number of recent discrimination verdicts, the caps have reduced the verdicts to a fraction of their original amount:

  • A $36M jury verdict for a deaf applicant for a truck driving position was reduced to $335,000 including back pay.
  • A private plaintiff’s $366M race verdict against FedEx was reduced to $249,000.

Recently, U.S. House lawmakers have begun to have long-overdue conversations about raising the 1991 damage caps, but it’s unlikely the caps will be raised this year.

EEOC Removes Conciliation Rule After CRA Repeal

In a notice announced in the Federal Register on Thursday, February 15, the EEOC removed the Trump-era rule modifying the agency’s conciliation process. Nearly three years previously, Congress had repealed the rule under the Congressional Review Act (CRA). The rule had required the agency to disclose additional information to employers upfront about how it determined an employer had discriminated against an individual.

Vice Chair Samuels Urges Caution on Religious Requests

At a recent legal seminar, EEOC Vice Chair Jocelyn Samuels spoke about workforce religious accommodations. She noted the Supreme Court’s decision in Groff v. DeJoy revised the “undue hardship” standard to require employers to show the burden of granting a religious accommodation would result in “substantial increased costs in relation to the conduct of its particular business.”

Samuels pointed out that the EEOC has plenty of guidance regarding religious discrimination and that while employers can engage in “limited factual inquiry” to confirm the sincerity of the religious belief, they must have an objective basis for questioning it. She said it remains to be seen whether the new standard will actually alter the results in cases.

Recent Settlements and Verdicts

Hospital Housekeeping Systems, LLC (HHS) will pay $520,000 as part of the settlement of a disability discrimination lawsuit filed by the EEOC. The agency claimed HHS violated the Americans with Disabilities Act (ADA) when it began requiring employees to take an essential functions test (EFT) at hire, annually, and upon the return from a medical leave of absence, even when portions of the test were not job-related. When the employees failed any portion of the EFT, HHS fired them despite the employees successfully performing the essential functions of their jobs. The company also didn’t offer any reasonable accommodations during the EFT.

In addition to the monetary relief, the three-year consent decree requires HHS to provide reasonable accommodations to individuals with disabilities during the administration of the EFT in the future, enjoins it from taking adverse action against any employee who complains about the EFT, and prohibits it from terminating an employee solely based on a failed EFT. HHS will conduct semiannual training regarding EFT testing and retaliation under the ADA.

McLane Northeast, a distribution company with a large facility in Baldwinsville, New York, will have to pay $1.675 million after a seven-person jury in Syracuse, New York, found in favor of the discrimination victim in an EEOC disability lawsuit. After nearly 4 full days at trial and just two hours of deliberation, the jury found McLane Northeast violated the ADA by refusing to interview a deaf candidate once it learned about her disability. Then the company further violated the ADA by refusing to hire the candidate for the two entry-level warehouse jobs she applied for. The jury awarded the deaf applicant $25,000 in back pay, $150,000 in emotional distress damages, and $1.5 million in punitive damages.

H. Juanita Beecher is an attorney with FortneyScott in Washington, D.C. You can reach her at nbeecher@fortneyscott.com.

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