Tag Archives: EEOC

Supreme Court Revives Pregnancy Discrimination Case

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“[W]hy, when the employer accommodated so many, could it not accommodate pregnant women as well?” This is the question the United States Supreme Court posed to the Fourth Circuit in Young v. United Parcel Service, Inc., as it voted 6-3 to revive a pregnancy discrimination case where a pregnant employee was denied an accommodation. This is the Court’s first ruling since 1991 on employers’ duties toward pregnant workers.

Peggy Young worked as a part-time driver for United Parcel Service, Inc. (“UPS”). Her responsibilities included pickup and delivery of packages. In 2006, Young became pregnant and her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy and not more than 10 pounds thereafter. UPS required drivers like Young to be able to lift packages weighing up to 70 pounds and up to 150 pounds with assistance. UPS had a collective bargaining agreement with a union that provided for reassignments to be available to workers with job-related injuries, those who lost their driver’s certification, and those considered permanently disabled under the Americans with Disabilities Act. Because Young did not fall into any of those categories, UPS did not allow her to work while under her lifting restriction. Young subsequently brought action against UPS claiming she was discriminated under Title VII because UPS refused to accommodate her while giving temporary assignments to other employees.

After the Court agreed to hear this case, the Equal Employment Opportunity Commission (“EEOC”) issued new guidelines which provided that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).” Although urged to give weight to these guidelines, the Court refused because they lacked the timing, consistency, and thoroughness of consideration necessary to “give it power to persuade” because (1) the guidelines were issued after it agreed to hear this case; (2) the position of the guidelines is inconsistent with positions for which the Government has long advocated; and, (3) the EEOC did not explain the basis of its latest guidance.

The Court ultimately adopted a “middle ground” approach and rejected the positions of both parties. Young argued that whenever an employer accommodates only a subset of workers with disabling conditions, it must provide the same accommodation to pregnant workers even if other non-pregnant workers do not receive accommodations, thus providing pregnant workers with “most-favored-nation” status. UPS, on the opposite end of the spectrum, argued that employers should be allowed to have neutral policies like seniority systems and special preferences for workers who are injured on the job and that employers are not prohibited from denying pregnant women accommodations on the basis of an evenhanded policy (e.g., light duty only offered to those with on-the-job injuries, regardless of whether the employee is pregnant or not).

The Court determined that an individual pregnant employee may show a case of discrimination through the application of what is known as the McDonnell Douglas framework. There, the employee must first show that: (1) she is a member of a protected class (here pregnant); (2) she sought an accommodation; (3) her employer did not accommodate her; and, (4) her employer did accommodate others “similar in their ability or inability to work.” Once the employee shows this evidence, the employer may justify its refusal to accommodate the employee by relying on “legitimate, nondiscriminatory” reasons for denying her accommodation. If the employer shows such reasons, the employee may in turn show that the employer’s proffered reasons are in fact pretextual. Importantly, the Court stated that the legitimate, nondiscriminatory reason proffered by the employer “normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.”

The Court sent Young’s case back to the Fourth Circuit Court of Appeals. The Fourth Circuit is now tasked with considering the facts of this case under the Supreme Court’s standard outlined above.

Where do we go from here? It is important to note that after the Supreme Court agreed to hear this case, UPS changed its policy and now treats pregnant employees in need of reasonable accommodations the same as workers with on-the-job injuries, giving them light-duty assignments if available. Employers should review their reasonable accommodation policies with respect to allowing pregnant employees light duty assignments in light of the Court’s decision. It can also be anticipated that the EEOC will revisit its guidelines and try to reassert the very same position which was rejected here, but do it the right way.

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Five Practical Tips For Providing Reasonable Accommodations in 2014

ADA requestIn recent years, the EEOC has put an emphasis on reasonable accommodations under the Americans with Disabilities Act (“ADA”) and its amendments, which has led to increase in failure to accommodate claims under the ADA. Set forth below are five practical tips to remember when a disabled employee is entitled to a reasonable accommodation.

1. Recognize a Request and Immediately Engage in the Interactive Process. Under the ADA, employers are required to engage in the interactive process when an employee requests a reasonable accommodation. In fact, part of an employee’s claim that an employer failed to accommodate the employee is a claim that the employer failed to engage in the interactive process. The first step of the interactive process is recognizing that a request has been made. Generally, it is the employee’s duty to make a reasonable accommodation request. The employee is not required to use any magic buzzwords. It is important for employers to recognize when an employee has made such a request and important to train supervisors and managers in recognizing such a request. The employee only needs to ask for some change or adjustment in the workplace and link that request to his or her disability. The employer’s response to the request must be “expeditious”, and a delay in responding may be a cause of action for the employee. After a request has been made, the employer has an obligation to engage in the interactive process, which requires the following steps: (i) recognize an accommodation request; (ii) gather information; (iii) explore accommodation options; (iv) choose a reasonable accommodation; (v) implement the reasonable accommodation; and (vi) monitor the reasonable accommodation.

2. Let the Employee Do the Talking. The best source of information about a reasonable accommodation request will likely come from the employee since he/she is the one requiring the accommodation. A good tool to use during the interactive process is a questionnaire for the employee to fill out. The employee should be asked to describe his or her impairment, identify his or her limitations, and provide suggestions for accommodations. Additionally, seriously considering the employee’s preference may be the best choice in maintaining a happy workforce and preventing a later claim, as long as such a request is reasonable. For example, a federal appeals court recently found that an employee was denied a reasonable accommodation where the employer rejected the employee’s choice of telecommuting to work, despite the fact that the employer offered other options to accommodate the employee. For more information on this case, see “Do I Really Need To Come To Work? New Frontiers In ADA Accommodation”. As an update on that case, on August 29, 2014, the United States Court of Appeals for the Sixth Circuit voted to rehear the case en banc. This means that the previous ruling by the court has been vacated and the case will be heard again by the full court. Stay tuned for an update when the Sixth Circuit issues its new decision.

3. Don’t Forget About Reassignment. If an employee has permanent restrictions and can no longer perform the essential functions of his or her job, an employer is still required to engage in the interactive process and consider job reassignment. If there is no vacant equivalent position for which the employee is qualified, the employee may be reassigned to another job with less pay and benefits as an accommodation. Don’t forget about the FMLA, however, which requires that an employee be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment upon return from FMLA leave. Remember, employers are not required to create a new job, move another employee, promote the employee or violate other employees’ rights under a collective bargaining agreement or other employment agreement when considering reassignment as an accommodation. Additionally, in the Eighth Circuit, which includes Nebraska, Minnesota, Iowa, Missouri and North and South Dakota, if there is a vacant position, the employer may follow company policy by choosing the most qualified candidate for that position.

4. Don’t Get Caught in the Indefinite Leave Trap. In the Eighth Circuit, an employer may deny a request for leave if the leave is indefinite and the employee cannot provide a return date or a timeframe for when they will return. The EEOC, on the other hand, requires that an employer prove an undue hardship before denying an indefinite leave accommodation request. These types of situations should always be evaluated closely by both the employer and counsel prior to terminating the employee.

5. Tread Lightly if using a Maximum Leave Policy. Many employers have a maximum leave policy and terminate employees for exceeding the maximum amount of leave available under the policy (for instance if an employee takes a medical leave of absence and cannot return to work after six months they are automatically terminated). The EEOC has taken the position that these policies are a per se violation of the ADA. For more information on the EEOC’s position, see “EEOC And Inflexible Leave Of Absence Policies: A Hot Button Issue For 2013”. However, a federal appeals court recently rejected the EEOC’s position and concluded that these types of policies are not inherently discriminatory, but rather protect the rights of disabled employees. For more information on that decision, see “Maximum Leave Policy Found To Be Fair And Lawful” . Because of the EEOC’s position and the unknown position of other courts, employers should still be wary about such policies. Employers should still engage in the interactive process and discuss the possibility of additional leave with a disabled employee in the event the employee reaches the maximum leave under such a policy rather than enforcing automatic termination under such a policy.

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EEOC And The Federal Trade Commission Remind Employers Of Their Duties When Using Background Checks

In two technical assistance documents issued earlier this year, the EEOC and the Federal Trade Commission (FTC) joined together to remind employers and employees of their obligations and rights when employers conduct background checks of employees. Such background checks must comply with the provisions of the Fair Credit Reporting Act, which is enforced by the FTC.

Pre-Report Obligations. Prior to obtaining background information, such as a credit or criminal background report, the employer must act as follows:

1. In writing, and in a stand-alone format, the employer must advise the applicant that the company may use the information for decisions about their employment. That notice cannot be in an employment application. Additional information may be communicated to the applicant at that time only if it does not confuse the notice.

2. If the employer seeks a report based upon interviews with acquaintances of the applicant concerning character, lifestyle, personal characteristics or reputation, the company has to tell the applicant of the right to obtain a description of the nature and scope of the investigation.

3. The employer must obtain the employee’s written permission to do the background check. That permission can be obtained in the same document used to notify the applicant that the employer will obtain a report. If that authorization is to extend to additional background reports during the employee’s employment, the authorization must clearly and conspicuously make that statement.

4. The employer must, obviously, certify to the company from which it is obtaining the report that it had notified the employee and received their permission, that they complied with all the FCRA requirements, and that they will not discriminate against the applicant or otherwise misuse the information.

Adverse Action. When an employer takes an adverse employment action against an applicant or an employee based on background information, it must act as follows:

1. Before taking an adverse employment action the employer must give the applicant or employee a notice that includes a copy of the consumer report the employer relied on and, a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.” That form has been updated.

2. After the employer takes an adverse employment action it must inform the employee (orally, although a better practice is in writing or electronically) that they were rejected because of the information in the report, provide the name, address and phone number of the company that provided the report, confirm that the company selling the report did not make the hiring decision and cannot provide the reasons for which the decision was made, and inform the employee that they have a right to dispute the accuracy or the completeness of the report and to get an additional free report from the reporting company within 60 days.

The new information also provides that the employer may dispose of background reports when it is done using them, but only securely by, for example, burning or shredding them.

The importance of complying with these requirements is that there have been a number of class actions by employees or applicants against employers for violating the provisions of the FCRA. Employers who use background reports with regularity should reexamine their protocol for providing information to the applicant or the employee to avoid becoming the target of yet another class action.

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