by Gail Cohen, Esq. - Assistant General Counsel Employment and Litigation
& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
March 24, 2017
& Marti Cardi, VP-Product Compliance
It appears the Equal Employment Opportunity Commission has added a new focus to its enforcement efforts. In its latest Strategic Enforcement Plan, the EEOC announced that one of its national priorities is for “the Commission to address . . . issues involving hiring barriers and the ADA.” Many of the recent settlements by the EEOC highlight just how seriously the EEOC is taking this strategic priority, in particular regarding applicants who request a reasonable accommodation in the pre-employment processes. Here are a couple of examples:
EEOC Settlement on Behalf of Trucking Applicant for Failure to Accommodate
An applicant for a truck driver position with Covenant Transport sought accommodation, on the basis of his medical condition, to have a blood test instead of providing a urine sample in connection with the company’s pre-employment drug screening. The EEOC filed suit, alleging that the company initially agreed to this request for accommodation, but ultimately reneged and declined to hire him because he could not submit a urine specimen for testing.
The oddest part of the settlement is that it requires Covenant to develop a written drug testing policy (surprised they did not have one already!) and to provide 90-minute trainings annually on the policy (that’s a long time to discuss one policy!) to its recruiters and head of safety. Covenant also agreed to pay $30,000 to the applicant.
Cell Phone Repair Facility Settles EEOC Lawsuit on Behalf of Two Applicants Denied Reasonable Accommodation.
As part of its hiring process, S&B in Fort Worth, Texas, required applicants to participate in a “group interview” with prospective supervisors. During this interview, the EEOC contended that the two applicants on whose behalf it brought this lawsuit were observed to be engaging in American Sign Language to communicate with each other. They asked that the supervisors provide them with written questions. The lawsuit alleged that the supervisors initially did so, then declined to continue and told both applicants the company would not hire them.
This lawsuit cost S&B $110,000 but, as you no doubt can guess by now, the EEOC imposed additional requirements on S&B to settle. The company is also required to maintain a written log of all disability-related complaints and report semi-annually to the EEOC. In addition, managers, supervisors, and HR personnel are required to attend a training conducted by a Dallas advocacy center for deaf individuals on the use of sign interpreters in interview and employment settings.
Pings for Employers:
Remember that the ADA applies to applicants as well as current employees. The prospective employer must provide reasonable accommodation(s) to applicants for known disabilities to assist them through the application process.
Train internal recruiters and interviewing personnel on the requirements of the ADA, so that they recognize and respond appropriately to a request for an accommodation during the application process.
Establish a culture of disability acceptance and recognition of each individual’s capabilities, not their disabilities.
MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].