Is “Shooting Fish In A Barrel” A Lost Sport?
I thought that a new case of a health care provider being caught discriminating on the basis of disability would be a good way to start this blog, since I spent so much time writing about this phenomenon in my old blog. Recall the characterizations “low hanging fruit,” and “shooting fish in a barrel?”
I did one post entitled “Two More ADA Lawsuits Filed By The EEOC: Guess Which Companies Got Sued?” The title referred to my frequent posts asking why the EEOC seemed to target health care companies for lawsuits under the Americans With Disabilities Act (“ADA”). I asked “What is it about health and medical care facilities that brings down the heavy hand of the EEOC so often, alleging ADA and pregnancy discrimination? Is it that the helping profession somehow has an innate bias against the disabled and against pregnant women, and discriminates more than other employers?”
“Or, could it be,” I wondered, “that the EEOC sees such health care folks as fat, juicy targets — for example, accusing the helping profession, which is there to treat the sick, disabled and pregnant, of disability discrimination surely attracts the inevitable sanctimonious media attention. Alleging that doctors discriminate on the basis of disability against the very folks that they are there to minister is sure to bolster a somewhat battered EEOC image.”
Now the EEOC reports a similar case in which Mississippi HomeCare, a major home healthcare provider in the Picayune, Mississippi area, agreed to settle a disability case for $100,000. In that case an employee suffered an epileptic seizure while working and upon her return she asked for an accommodation as to certain job tasks which she was having a hard time with because of temporary medication side effects. The employer fired her. See http://www.jdsupra.com/legalnews/mississippi-homecare-of-picayune-to-pay-39067/
An ADA official said that “The ADA prohibits the termination of a disabled employee based on stereotypes of whether they can or cannot perform their job duties.” Another EEOC official stated that “We hope this resolution will be a lesson to companies of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA.”
Takeaway – as I noted before, you must engage with a requesting employee in an interactive process to seek a reasonable accommodation. If you don’t, especially if you are a heath care or medical facility, you are inviting EEOC intervention, if not taunting the EEOC to target you!