One more “EEOC goes after low hanging fruit” post before the new year!!

For anyone just coming upon this blog, I like to highlight a few important trends or repeated fact patterns, such as code words for “old” in age discrimination cases, or the seeming increase in the use of the “N-word” in workplaces.

And one of my favorites is posting about EEOC developments involving disability or pregnancy discrimination claims against health care providers. It has become crystal clear to me that the EEOC targets these folks in particular for such cases because – quite frankly – it is easy poke the “caring profession” for discrimination against people with disabilities or employees who are pregnant, and it’s also good PR.

Such as a new EEOC settlement with a rehab center which allegedly fired an employee with rheumatoid arthritis.

Indeed, I started 2018 with a similar post:

“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.”

I wrote that:

“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?”

Not likely.

“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.”

I have dubbed the EEOC’s targeting of such health care folks as their plucking “low hanging fruit” and “shooting fish in a barrel.”

The latest case

Well, finally getting to the latest such case, the EEOC just announced a $21,000 settlement with a North Carolina rehabilitation and healthcare center which, it charged, refused a reasonable accommodation and ultimately fired a certified nursing assistant with rheumatoid arthritis. This is an autoimmune disease treatable with prescription medication, but the just-hired employee had not yet received her insurance card, could not fill her prescription, and experienced a “flare up” which made it hard for her to grip objects. She asked for an accommodation – four weeks of “light duty” – but was denied, placed on unpaid leave and fired.

A classic “low hanging fruit” case for the EEOC!

Takeaway (Redux) For the Holidays

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!

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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]