Beating A Dead Horse About The EEOC’s “Shooting Fish In A Barrel”

Ok, enough.

I promise no more mixed metaphors or posts about the EEOC going after medical or health care facilities for alleged violations of the ADA because, as I believe, they are easy pickins. No more “shooting fish in a barrel” or “plucking low hanging fruit, or other such things.

Well, maybe just this once.

Bowl, Fish, Goldfish, Tank, Water, Sad

I wondered frequently in the past about the sheer number of ADA lawsuits filed by the EEOC against health care companies:  “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 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.”

There are two EEOC cases I want to highlight today – one just commenced and one just settled.   Because they tend to support my thesis, as well as because important points need be made – still.

In the just-settled category, the EEOC announced that a nationwide dialysis provider has agreed to end an ADA suit by paying $190,000 to a former nurse with breast cancer who it allegedly fired and then refused to rehire because she asked for more medical leave to complete her chemo treatment following mastectomy surgery. The EEOC claimed that the employer fired her after 4 months, telling her that she had exceeded the time limit set out in it’s medical leave policy, despite the fact that the nurse was on approved medical leave and her doctor had approved her return to work without restrictions.

“Extending her medical leave would have posed little burden … Employers with inflexible leave policies lose the opportunity to help a valued employee return to work – and they’re violating the law,” one EEOC attorney was quoted as saying.  Another EEOC official said that “Revising policy and training are positive changes to ensure that employees with disabilities … will be given full benefit of the reasonable accommodation process, and, if needed, the medical leave necessary to address their needs.”

Ok, we know that an employer must attempt to accommodate a disabled employee if it does not create an undue burden.  And that the employer must engage the employee in an interactive process to try to reach such an accommodation.  And that leave policies must be updated and kept flexible – no “one size fits all.”

In the second case, the EEOC announced that it had sued a Texas home health agency for allegedly telling a pregnant employee that she needed a doctor’s note to continue working. When she provided a note which stated that she could perform all of her job duties with the only limitation being that she should not lift or pull more than 25 pound she was fired virtually on the spot.

We already know that employers cannot hide behind an outdated or false paternalism to prevent disabled or pregnant employees from working “to save them from themselves.”  Do not succumb to stereotypes, or fears or myths about disabled or pregnant employees – you may be violating Title VII or the ADA.

The EEOC boasts that it is on a tear:  “Since the start of fiscal year 2011, EEOC has filed over 45 lawsuits involving pregnancy discrimination. During that time, the federal agency has recovered approximately $3,500,000 — as well as important injunctive and other case-specific “make whole” relief for victims of pregnancy discrimination through its litigation program.  EEOC recently issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question-and-answer document about the guidance and a fact sheet for small businesses. The Enforcement Guidance, Q&A document, and Fact Sheet are available on EEOC’s website.”

Takeaway:  Those employers who have not read this blog before take heed!  The EEOC may come a knockin’ on your door if you do not comply with the ADA!

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]