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Wednesday, September 15, 2010

EEOC Files 3 ADAAA Cases


















Reprint O&A News October 10, 2010
Alabama@Work
By Tommy Eden, Attorney

The U.S. Equal Employment Opportunity Commission (EEOC) on September 9, 2010 filed three new disability discrimination cases under the broader and simplified definition of disability set forth in the ADA Amendments Act of 2008 (ADAAA). These cases allege discrimination against qualified individuals with diabetes, cancer and severe arthritis.

In Atlanta, the agency charged Eckerd Corporation, a nationwide drug store chain doing business as Rite Aid (EEOC v. Eckerd Corporation d/b/a Rite Aid filed in U.S. District Court for the Northern District of Georgia) with refusing to provide a reasonable accommodation -- a stool to sit on -- to a long-time employee who experienced severe arthritic symptoms in her knees. Fern Strickland, who had worked as a cashier for Rite Aid with this reasonable accommodation for seven years without incident, lost the use of her stool in January 2009 when a new district manager decided that the company would no longer accommodate her disability. According to the EEOC Complaint, the district manager “did not like the idea” that Strickland used a stool. The suit claims that she was terminated several weeks later because of the manager’s failure to accommodate her disability.

In a case filed in Baltimore, the EEOC alleges that surveying company Fisher, Collins & Carter fired two employees because they had diabetes and hypertension. According to the suit (EEOC v. Fisher, Collins & Carter, filed in the U.S. District Court for the District of Maryland), the company asked Robert Gray and Wayne Seifert and other employees to complete a questionnaire regarding their health conditions and medications. Gray had worked for the company for 15 years starting as a rodman, and had been promoted to the position of party chief by the time of his termination. Seifert had been employed since 2000 as a rodman. The EEOC suit asserts that, despite their many years of successful performance, the company unlawfully selected Gray and Seifert for a reduction-in-force on January 21, 2009, on the basis of their disabilities, while retaining less qualified, non-disabled employees.

In the third case filed in Lansing, Mich., the EEOC charged that IPC Print Services fired one of its employees rather than allowing him to work part time while being treated for cancer. According to the EEOC Complaint, Derek Nelson, who had been employed by IPC as a machinist for over ten years, went on medical leave in 2008 in order to undergo chemotherapy. The EEOC's suit (EEOC v. IPC Print Services, Inc., in U.S. District Court for the Western District of Michigan), alleges that in January 2009, when Nelson sought to continue working part-time while he completed his treatment, IPC discharged Nelson for exceeding the maximum hours of leave allowed under company policy. That decision, the agency contends, violated IPC's obligation to reasonably accommodate Nelson's disability.

Common Sense Counsel: These cases, the first filed by the EEOC under the ADA Amendments Act of 2008, illustrate that the new definition of “disability” is both broad and straightforward. Those with serious medical conditions such as cancer, diabetes, and severe arthritis — must be evaluated according to their qualifications, and not their disabilities. Where a reasonable accommodation will enable a person with a disability to perform the essential functions of her job, an employer must provide it. Employer Action Steps: 1) updated job descriptions with essential functions; 2) ADAAA handbook policy language is strongly advised; 3) supervisor training on ADAAA responsibilities is critical; and 4) understanding the interactive ADA dance is just good risk reduction.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com