I attended the Labor & Employment State Bar luncheon this past week and the topic for discussion was Smart Strategies for EEOC Charge Handling. The seminar served as a great reminder of some of the best practices to follow in responding to EEOC charges, requests for information and documents, administrative subpoenas and related inquiries. It also got me thinking that there are a couple EEOC updates worth mentioning from the past week or two:
The EEOC recently gave a good reminder to reexamine hiring policies, particularly those that automatically exclude specific groups of individuals based on predefined criteria. During a public meeting, the EEOC explored whether the process of excluding unemployed job applicants from hiring pools discriminates against protected groups. The EEOC press release highlighted some of the testimony that was heard during the public meeting:
Fatima Goss Graves, Vice President for Education and Employment of the National Women’s Law Center testified, “Women, particularly older women and those in non-traditional occupations, are disproportionately affected by this restriction.”
Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute stated that unemployment rates for African-Americans, Hispanics and Native Americans are higher than those of whites.
Joyce Bender, an expert in the employment of people with disabilities explained, “Given my experience, I can say without a doubt that the practice of excluding persons who are currently unemployed from applicant pools is real and can have a negative impact on persons with disabilities.”
Fernan Cepero, representing the Society of Human Resource Professionals, and James Urban from Jones Day expressed doubt as to the extent of the problem.
The meeting transcript is not yet available. The discussion is just one of many that the EEOC has held and will likely continue to hold examining the “barriers to employment and their potential adverse impact on protected groups.” In October 2010, for example, the EEOC took a closer look at whether credit checks have a disparate impact on certain groups of individuals. All employers would be wise to explore whether any of their current hiring practices adversely impact protected groups.
Also, the following case from the District Court of Maryland is worthy of a quick mention as it seems to be a recurring theme of litigation: the right of disabled employees to pursue actions under the ADA when they have applied for and/or obtained Social Security disability benefits. In EEOC v. Greater Baltimore Medical Center, Inc., the court granted summary judgment in favor of the employer because the plaintiff was unable to provide a sufficient explanation for this contradiction.
The court followed the guidance from the Supreme Court in Cleveland v. Policy Management Systems Corporation, which explained that an employee receiving SSDI benefits can still bring a discrimination claim under the ADA (which requires that the employee be able to perform the essential functions of his or her job with or without reasonable accommodation), provided that the employee can explain why his or her receipt of SSDI benefits (which require that the employee is unable to work) is consistent with the ADA claim. Of significance, the definition of “disabled” in the Social Security context does not take into account the effects of reasonable accommodations on the employee’s ability to work.
In Greater Baltimore, the EEOC did not proffer any reason as to why the employee could perform the essential functions of his job, at least with reasonable accommodation. Rather, the EEOC argued that the employee did not bring the lawsuit and the employee was not a party to the lawsuit, and also claimed that the employee never represented that he was “totally disabled” in his SSDI application or in the course of his treatment. The court explained that the EEOC was unable to reconcile the inconsistencies in this matter, and the EEOC can be barred from bringing an ADA suit, if it “does not provide sufficient explanation for an apparent contradiction between a claimant’s SSDI application and the claimant’s later contentions that he is able to work.”
While an employee who receives SSDI benefits is not automatically barred from bringing ADA claims against his or her employer, the employee does have to offer a sufficient explanation for the apparent contradiction between the two claims. Accordingly, the receipt of SSDI benefits is something that should be evaluated when defending any ADA claim. Even if a plaintiff is not totally foreclosed from bringing the claims such as in this case, some courts, including the Ninth Circuit, have also limited damages an employee is entitled to receive, when the employee has failed to presented evidence to demonstrate that he or she could have returned to work with a reasonable accommodation.
*** A special thanks this week goes to Bschool.com for including Employment & the Law in its list of the Top 40 Corporate Law Blogs.