Low Hanging Fruit 2018 – EEOC Targets Healthcare Providers
Ah, the new year! Awake from my holiday hibernation I thought that, based on a number of new cases and settlements, it was time to revisit the EEOC’s apparent targeting of healthcare professionals and companies for alleged disability and pregnancy law violations!
That’s right – a subject near and dear to my heart because it’s so obvious and easy to understand why the EEOC does this — and easy for an employer to avoid.
“What is it,” I have asked repeatedly, “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’ve 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.”
Recall my characterizations of this targeting as “low hanging fruit,” and “shooting fish in a barrel?”
One recent settlement seems to further evidence these characterizations as to the motives of the EEOC.
A Dallas home healthcare company agreed to pay $25,000 for allegedly discriminating against an employee with bipolar disorder by firing her when she requested leave to see her health care provider. The EEOC regional attorney stated:
“We would expect that employers in the health care field would be keenly aware of the importance of supporting the medical needs of their employees by allowing reasonable time that may be required for treatment.”
In a second case, a Maryland health care staffing agency agreed to pay $38,000 after the EEOC sued claiming that a phlebotomist at a medical center suffering from sickle-cell anemia-related pregnancy complications requested a “reasonable accommodation of not being required to staff mobile blood drives.” She was eventually fired.
A third case involved a Mississippi provider of inpatient and outpatient health care services which agreed to pay $85,000 to settle a disability case of a social worker/therapist who was hospitalized and underwent liver transplant surgery. When she was to return to work she requested several weeks additional leave to recover from the surgery. The employer denied her request “and subsequently fired her because she had exhausted her company-approved leave.”
The EEOC regional attorney correctly noted that “Employers should understand they cannot simply fire an employee with a disability once she has exhausted her allotted 12 weeks of leave under the Family and Medical Leave Act. Rather, the ADA requires the employer to determine whether that employee can be accommodated by a brief extension of leave that would enable the employee to return to work.”
A Minot, ND hospital just settled a pregnancy and disability discrimination lawsuit for $95,000. It allegedly “refused to provide light-duty work to a pregnant nurse who had lifting restrictions because of a pregnancy-related health condition. Instead, it fired her, although it provided light-duty positions to nurses injured on the job.”
Once again, an EEOC district director stated correctly that:
“Employers must understand that the law obliges them to accommodate restrictions of pregnant employees — just as they would accommodate other employees who are similar in their ability or inability to work. It is especially important that they understand that if they are accommodating persons with restrictions arising from a work-related injury, they may have to provide the same accommodations to employees with restrictions arising out of pregnancy.”
Finally, the EEOC recently sued a Georgia regional medical center alleging that it fired a Medical Records Analyst who requested two weeks leave due to a medical condition which caused her to faint at the hospital.
The EEOC said that “An employer cannot discharge an employee because that employee has an actual or perceived disability or because she sought a reasonable accommodation. The employee here sought to exercise her rights under the ADA to receive a reasonable accommodation, but instead of accommodating her, the hospital simply kicked her out the door.”
As I noted many times before, you must engage in an interactive process with a requesting employee who is pregnant or who has a disability to seek a reasonable accommodation that is not unduly burdensome to you.
It isn’t that difficult and usually not particularly expensive to arrive at a “reasonable accommodation” – at least compared to the cost of litigation and settlement.
And if you are a heath care or medical facility, be aware – be very aware – that if you fail to do this you are inviting EEOC intervention, if not taunting the EEOC to target you!