Search Jobs

Disability Discrimination - By Julia Méndez, CAAP, PHR, CELS

Almost two years after the Americans with Disabilities Act Amendment Act (ADAAA) became effective, the lawsuits filed with the Equal Employment Opportunity Commission (EEOC), the agency which oversees compliance with ADAAA, do not appear to be diminishing. Although the comprehensive enforcement and litigation statistics for fiscal year (FY) 2011 were not available at press time, we do know that the amount of monetary benefits to victims of discrimination, inclusive of all laws enforced by the EEOC, has hit a record high for FY 2011. According to the EEOC within its annual report, it received 99,947 charges of discrimination and collected $365 million for victims of discrimination in all categories enforced by the EEOC. These are record-breaking figures for the 46-year history of the agency. When we compare the amount of monetary fiscal benefits for victims of discrimination due to a disability over the previous two fiscal periods, we notice an increase in benefits from $57.2 million in FY 2008 to $67.8 million in FY 2009, and then $76.1 million in FY 2010.

Charges Pending:

As of October 25, 2011, the agency had approximately 50 lawsuits pending under the ADAAA. Interestingly enough, many of the lawsuits we have seen this fiscal period have involved pharmacies and other organizations within the healthcare industry. Rite Aid is alleged to have discriminated against a cashier who has severe arthritis, a condition that impedes the individual from walking or standing for long periods of time. The pharmacy is charged with failing to accommodate and then discharging the individual because of the disability.

Professional Media Corporation, d/b/a Your Health Magazine, had a complaint filed against them from a former bookkeeping employee who was discharged and harassed in the workplace due to Attention Deficit Hyperactivity Disorder and Auditory Processing Disorder. The EEOC also charges that the company violated ADA when it required new hires to sign a statement that they had no pre-existing health conditions and were not taking any drugs or narcotics for any medical condition (including psychological disorder).
Tri City Comprehensive Community Mental Health Center has a suit pending after the Defendant charges that she was discriminated against after requesting a leave of absence for breast cancer treatment. She was ultimately discharged due to her disability.

Other organizations in the health field also have lawsuits pending for disability-related discrimination (Personal Touch Home Care, Johns Hopkins Home Care Group, Inc., Children’s Hospital, National HealthCare Corporation, The Scooter Store, and Gulf Coast Homecare).

Pending charges include other industries as well, such as restaurants (Lang’s Seafood discharged an employee with a prosthetic leg citing safety reasons), and retailers like Wal-Mart (cancer-related disability charge and a separate charge due to cerebral palsy), Dollar General Store (discrimination due to HIV, bi-polar disorder, and spondylosis) and Kohl’s Department Stores (discrimination due to complications from diabetes).

Top Settlements:

The three major settlements of FY 2011 involving charges of discrimination due to a disability were AutoZone, Supervalu/Jewel-Osco, and Verizon. AutoZone failed to reasonably accommodate a disabled sales manager who was unable to perform what were deemed non-essential functions of his job (mopping floors and other cleaning tasks) due to back and neck impairments. Even after showing the store’s management evidence of his impairment, he was refused an accommodation and was required to continue mopping, which led to further injury and his need for medical leave. He was awarded $600,000 and will possibly obtain up to an additional $115,000 in back pay.

Supervalu/Jewel-Osco signed a consent decree on January 5, 2011 for $3.2 million after it was determined that the supermarket giant had a practice of terminating employees with disabilities “at the end of medical leaves of absence rather than bringing them back to work with reasonable accommodations.” The EEOC determined, after investigating this practice, that over 1,000 employees in the greater Chicago area could have been impacted by this policy since its inception in 2003.

And lastly, on July 6, 2011, Verizon was ordered to pay $20 million and provide significant equitable relief due to a nationwide class disability lawsuit. This case is the largest discrimination settlement in the history of the EEOC. Verizon was found to have an attendance policy that would result in disciplinary action, including termination, if an employee accumulated a certain number of “chargeable absences.” In cases where the absences were due to a disability, Verizon failed to provide reasonable accommodations.

A Look Ahead:

What can we expect for the upcoming fiscal year? With the increased number of compliance officers and investigators on staff with the EEOC and the Office of Federal Contract Compliance Programs (OFCCP), which oversees compliance by federal contractors and subcontractors with Section 503 of the Rehabilitation Act, we are seeing more thorough investigations, as well as an increase in the amount of financial recovery for victims of discrimination. Under President Obama’s leadership, we have seen a renewed interest in compliance with all equal opportunity laws, especially those that cover the disabled. This week, the OFCCP released a notice of proposed rulemaking which, if adopted in its final regulatory state, will impose mandatory training for persons involved in employment decisions. This training would include sensitivity training, compliance with disability laws, and the handling of accommodation requests. If adopted, it will also impose a placement goal for the hiring of persons with disabilities by federal contractors.

Julia Mendez, CAAP, PHR, CELS, is principal business consultant for PeoplefluentTM and a member of the INSIGHT Into Diversity Editorial Board. She currently manages the customer-training programs related to equal employment opportunity (EEO) and affirmative action (AA) compliance, EEO-1, VETS-100A, web accessibility for the disabled, and reviewing responsibilities under affirmative action and equal employment opportunity laws to management. Julia offers 16 years of experience in preparing affirmative-action plans and assisting clients through OFCCP compliance reviews. She is the diversity chairperson for the Workforce Compliance and Diversity Solutions division and a recognized conference speaker on various affirmative action and EEO topics. She may be contacted at Julia.Mendez@peoplefluent.com.

Originally published in our February 15 issue (March 2012).
 
 


INSIGHT Into Diversity