Phelps Dunbar has been advising our clients over the last year to expect an increase in EEOC charges and litigation following the passage of the Amendments to the Americans with Disabilities Act. Since the EEOC's final regulation under the Act were published in March of last year we have seen a sharp increase in EEOC charges filed under the ADA. Many of those charges have now worked their way through the EEOC process and we are seeing an increase in litigation that the EEOC is pursuing on behalf of employees who allege that they have been denied a reasonable accommodation under the ADA.
In a press release the EEOC issued following a consent decree it obtained against an employer, an EEOC Director was quoted as saying the following: "When an employer is on notice that one of its employees cannot perform a job function due to a disability, the ADA requires that the employer distinguish between the essential and non-essential functions of that job. The employer must then work to identify a reasonable accommodation for the employee's disability. Earnest, interactive communication with the employee, viewing the purpose of the job and its functions realistically, and carefully researching and considering options for reasonable accommodation of the disability are all keys to ADA compliance."
The EEOC filed two new lawsuits under the ADA in the last few weeks. In the first one, the EEOC alleged that a company refused to hire an individual for a managing consultant position because of his disability, ocular albinism. Ocular albinism is an inherited condition in which the eyes lack melanin pigment. Because of the lack of melanin pigment in his eyes, the plaintiff had a variety of vision problems which substantially limit his ability to see. According to the EEOC's complaint, when the company learned that the plaintiff did not have a driver's license and does not drive because of his disability, the company rescinded the offer of employment. Although the plaintiff was fully qualified to perform the duties of the managing consultant position, the employer unlawfully failed to hire him for the position because of his disability, the complaint alleges.
In a separate lawsuit, the EEOC sued a power grid operator, alleging that the company unlawfully discriminated against an employee and fired her she because she suffered from post-partum depression. The EEOC alleged that the company refused to grant the employee's request for some leave time to help her deal with the condition taking the position that "this company could easily have prevented this situation by working toward a reasonable accommodation, which it was legally obliged to do."
These two lawsuits reflect the fact that the EEOC is taking aggressive measures to enforce the ADA. Employers should review their policies and make sure that they are engaging in the interactive process when determining the accommodation under the ADA.