Written by Ginger McRae, Esq., SPHR
Senior Consultant / Shareholder • Atlanta, Georgia
Employment Practices Solutions, Inc.
gmcrae@EPSpros.com
Should we have been surprised by the announcement in July 2011 that telecommunications giant Verizon settled EEOC claims that it violated the Americans with Disability Act (ADA) through enforcement of Verizon's no fault attendance policy? There were signals that such employer policies were problematic before that record-setting $20 million settlement. Indeed, in the past few years the EEOC has challenged a workers' compensation leave exhaustion policy1 and maximum leave periods.2 And while it has been widely believed that regular attendance is an essential function of performing a job, cracks have appeared in this seemingly reliable concept.3
So perhaps there were signals that no fault attendance policies were at risk. And while there was no court adjudication of alleged ADA violations by Verizon, clearly there is much that can be learned from this historic settlement, the largest disability discrimination settlement in a single lawsuit in EEOC history.
Background
The case began with an EEOC Commissioner charge followed by a charge filed by the Communications Workers of America, AFL-CIO, as well as over 40 individual charges, all involving the application of Verizon's no fault policy to union-represented employees. The complaint and proposed consent decree, which must be approved by the court, were filed on the same day in federal court in Maryland. The EEOC claimed that Verizon violated the ADA by refusing to make exceptions to its no fault attendance policy to accommodate employees with disabilities. Under the Company's policy, after an employee accumulated a defined number of "chargeable absences," he/she was placed on a disciplinary step which could lead to more serious discipline, including termination.
What the parties said
In the press release announcing the settlement, EEOC Chair Jacqueline Berrien stated, "Flexibility on leave can enable a worker with a disability to remain employed and productive – a win for the worker, the employer and the economy. By contrast, an inflexible leave policy may deny workers with disabilities a reasonable accommodation to which they are entitled by law – with devastating effects." EEOC General Counsel David Lopez said, "Hopefully this nationwide decree will further public awareness of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA." Clearly, the EEOC is looking for flexible policies and individualized, interactive processes to determine accommodations.
Verizon said the settlement provided the Company "with clearer guidance from the EEOC regarding when it may be appropriate to provide additional leave as a reasonable accommodation under [the ADA] which was previously lacking and was a significant factor in Verizon agreeing to settle the matter."
Terms of the Verizon settlement
Verizon must revise its attendance plans and policies and ADA policy to include reasonable accommodation for persons with disabilities, including excusing certain absences. Additionally, Verizon agrees to provide mandatory periodic training on the ADA to employees primarily responsible for administering its attendance policies. Further, Verizon must report to EEOC on all employee complaints of disability discrimination related to attendance policies and maintain records of attempts to accommodate, including description of accommodations considered. Other terms include posting a notice about the settlement and appointing an internal monitor to insure compliance with the consent decree.
Other targets
EEOC is actively filing lawsuits in support of its initiatives in the disabilities arena. Ford, in a recent lawsuit filed by EEOC, allegedly failed to accommodate a worker with a gastro-intestinal condition by refusing to allow her to telecommute. EEOC also recently sued Kohl's, a large retail chain, alleging it unlawfully refused to accommodate a diabetic worker's request for a regular schedule her doctor said was needed to prevent complications from her condition. In another recently filed case, EEOC claims that SITA, an air transport communications company, offered employment to an applicant, but when the applicant advised the company she needed cancer surgery, it refused to delay her start date and her request to work part-time for the first two weeks and rescinded the job offer. In yet another freshly filed case, EEOC alleges that the Scooter Store, a retail company, refused to accommodate an employee's request for a temporary leave of absence due to a knee injury and subsequently fired the employee.
Going forward
The message to employers is clear: employers must carefully evaluate situations involving accommodation of employee and applicant disabilities. Policies and practices should be carefully reviewed and revised where appropriate to provide for reasonable accommodation of disabled workers. With regard to attendance policies in particular, they should include the ability to excuse absences under the ADA, the Americans with Disabilities Act Amendments Act, Family and Medical Leave Act, and state and local laws. Those responsible for administration of policies and procedures must consider modifications of policies and practices when situations arise that would impose discipline or some other adverse action on an employee for absences that are caused by a protected disability. They must also consider exceptions to regular practices when such an exception may constitute a reasonable accommodation.
Documentation of requests for accommodation and all responses of the employer will be very important. Employers should document the duties of the position in question, the ability to assign the disabled employee's responsibilities to others, and the need for and cost of replacement workers. Above all, employers must realize there are no bright line tests in this difficult area; in each situation accommodation must be considered.
1. EEOC v. Sears, Roebuck and Co., Case 1:04-cv-07282 (N.D. Ill. Sept. 29, 2009). Sears and EEOC entered a consent decree involving $6.2 million and other relief.
2. EEOC. Supervalu Inc., et al., Case 1:09-cv-05637 (N.D. Ill. Jan. 14, 2011). EEOC and Supervalu entered a consent decree involving $3.2 million and other relief. EEOC v. Denny's, Inc., Case 1:06-cv-02527 (D. Md.). EEOC and Denny's entered a consent decree involving $1.3 million and other relief.
3. See Holly v. Clairson Indus., LLC, Case 06-cv-13365 (11 Cir. July 19, 2007), in which the Court held that strict punctuality was not an essential function of Holly's job and that the employer violated the ADA's requirement of reasonable accommodation through application of its punctuality policy to Holly's disability-related tardiness.
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