EEOC Offers Guidance on Specific Disabilities in the Workplace

The federal Equal Employment Opportunity Commission recently issued revised “Q&A” documents addressing how the Americans with Disabilities Act (ADA) applies to applicants and employees with four specific disabilities:

• Cancer
• Diabetes
• Epilepsy
• Intellectual disabilities

The documents are part of the EEOC’s “Disability Discrimination, the Question and Answer Series.”

The revised Q&A’s reflect changes to the definition of disability made by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The ADAAA made it easier for an individual who brings an ADA claim to establish a disability. Under the ADAAA, the definition of “disability” will be construed in favor of broad coverage.

The revised Q&A documents cover topics such as what types of reasonable accommodations an employee with a specific disability might need. The documents provide specific examples. For instance, the guidance on cancer states that some employees with cancer may need one or more of the following accommodations:

• Leave for doctors' appointments and/or to seek or recuperate from treatment
• Periodic breaks or a private area to rest or to take medication
• Modified work schedule or shift change

California employers are reminded that state disability protections under the Fair Employment and Housing Act may be broader in some areas than federal law. At the end of 2012, California amended its disability regulations.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia subscribers can get detailed information on the amended disability regulations. Not a subscriber? Start a free trial now.

CalChamber customers can also get an expanded discussion of the disability regulations and their impact on state law in the 2013 California Labor Law Digest.

EEOC Makes Tackling Genetic Information Bias a Top Priority

This month, the Equal Employment Opportunity Commission (EEOC) settled its first ever lawsuit involving the Genetic Information Nondiscrimination Act of 2008 (GINA).

GINA prohibits the use of genetic information in making employment decisions in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits or any other term or condition of employment.

What was the violation? According to the allegations, a large fabric distributer violated GINA when it asked an applicant for her family medical history in a post-offer, pre-employment physical.

As part of the physical, the applicant was required to fill out a questionnaire which asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and “mental disorders” in her family.

“Employers need to be aware that GINA prohibits requesting family medical history,” said David Lopez, general counsel of the EEOC. “When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis.”

On a related note, the EEOC also filed its first GINA class-action lawsuit. The EEOC alleges that a nursing and rehabilitation center conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, the employer requested family medical history, a form of prohibited genetic information.

The EEOC’s Strategic Enforcement Plan (SEP) identifies addressing emerging issues, such as GINA violations, as one of the EEOC’s six national priorities.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia subscribers can learn more about GINA on this HR Library page. Not a subscriber? Start a free trial now.

Largest EEOC Verdict Ever: $240 Million for Disability Discrimination

On May 1, the U.S. Equal Employment Opportunity Commission (EEOC) announced that an Iowa jury awarded damages totaling $240 million — the largest verdict in the federal agency’s history — in a lawsuit related to disability discrimination and severe abuse.

Update: On May 14, 2013, a federal district court issued an order that capped the damages at $1.6 million because Title I of the ADA imposes a statutory cap on damages of $50,000 (combined compensatory and punitive damages) for each claimant. 

The lawsuit filed by the EEOC against Hill County Farms, doing business as Henry’s Turkey Service, alleged that the company subjected a group of 32 men with intellectual disabilities to severe abuse and discrimination for a period between 2007 and 2009, after 20 years of similar mistreatment.

The jury agreed and awarded each of the men $2 million in punitive damages and $5.5 million in compensatory damages. This verdict follows a 2012 order from the district court judge that Henry’s Turkey pay the men $1.3 million for unlawful disability-based wage discrimination — making the total judgment $241.3 million.

The affected men lived in Iowa, where they worked for 20 years as part of a contract between Henry’s Turkey and West Liberty Foods, an Iowa turkey processing plant. At trial, the EEOC presented evidence that the owners and staffers of Henry’s Turkey subjected the workers to abusive verbal and physical harassment for years and years; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions and failing to provide adequate medical care when needed.

The EEOC alleged that Henry’s Turkey exploited the workers, whose jobs involved eviscerating turkeys, because their intellectual disabilities made them particularly vulnerable and unaware of the extent to which their legal rights were being denied.

Such abuse violated the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, including intellectual disabilities, in terms and conditions of employment and wages and bars disability-based harassment. The EEOC filed its lawsuit after attempting to settle the case through its conciliation process.

Protecting vulnerable workers from disparate pay, harassment and other discriminatory policies is one of the priorities identified in the EEOC’s Strategic Enforcement Plan.

Equal Employment Opportunity Commission

HRCalifornia’s HR Library offers extensive information on federal and state laws that protect employees with disabilities.

Abercrombie Religious Discrimination Suit Moves Forward

In 2010, the federal Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Abercrombie & Fitch, claiming that the company refused to hire an applicant because the applicant wore a hijab – an Islamic religious head scarf.

Recently, a federal court denied Abercrombie’s motion asking for the case to be dismissed prior to trial.

The applicant, Halla Banafa, wore a hijab to her interview at the ‘abercrombie kids’ store in Milpitas, California. She received a passing score, but not a job offer. The EEOC claimed that she was not hired because Abercrombie felt the Hijab was inconsistent with the Abercrombie “look.”

Abercrombie maintains a “look policy” that gives employees guidelines about what clothing to wear while working so the employees’ appearance is consistent with Abercrombie’s “preppy” style. Headwear is prohibited, but exceptions have been made for religious accommodation on a case-by-case basis.

According to the EEOC’s allegations, the interviewing manager (who had been on the job for only one month) asked Banafa during the interview if she was Muslim and also discussed the hijab, including whether Banafa was required to wear it.

Banafa allegedly asked if the hijab would be a problem, and the interviewer said she would check with the district manager, but never did. The interviewing manager’s notes during the interview stated that Banafa did not have the “Abercrombie look.”

Abercrombie argued that the case should be dismissed before trial because it had a legitimate, non-discriminatory reason for the refusal to hire — Banafa was not available to work on Mondays through Thursdays. 

But the court found that there was at least enough evidence to allow the case to go to trial:

• Religion and the hijab came up during the interview and the “look policy” was discussed
• Three people were hired even though they scored lower than Banafa
• The “availability” explanation was contradicted by witnesses who said weekend workers were needed more than weekday workers
• The interviewing manager changed her story about the reason for refusal to hire — repeatedly  saying the decision was made because Banafa was not outgoing or confident, but four years later (in a deposition for the lawsuit) changing the reason for the decision to Banafa’s lack of availability

This isn’t the only lawsuit brought against Abercrombie for discriminating against workers or applicants who wear a hijab. Nearly two years ago, the EEOC filed a lawsuit against the clothing retailer, claiming that the company violated federal law when it fired a Muslim employee for wearing a hijab.

This past year, the California legislature passed AB 1964, which clarifies that the state Fair Employment and Housing Act covers a religious dress practice (such as a head covering or jewelry) or a religious grooming practice (such as a hair style or facial hair) as a belief or observance.

As an interesting side note, the same year that Banafa was denied the job she got married, moved to South Carolina, stopped wearing the hijab and got a job at Olive Garden.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

State Agency May Pursue More Class Action Discrimination Suits

The California Department of Fair Employment and Housing (DFEH) recently indicated its desire to use class action lawsuits to combat discrimination in the workplace.

The DFEH is now able to file lawsuits directly in court on behalf of a complainant and can require mandatory dispute resolution because SB 1038 changed the landscape for how claims under the Fair Employment and Housing Act (FEHA) are resolved. The bill eliminated the administrative hearing process.

DFEH Director Phyllis Cheng was quoted as saying she believes class actions are “a good way to pool resources” and “be much more effective.” She also stated that class actions may put pressure on employers to comply with the Fair Employment and Housing Act. See this article from Law360.com and this article from The Workplace Class Action Blog published by Seyfarth Shaw LLP.

The DFEH does not dispute what the articles say and, in fact, posted them on its website and LinkedIn page.

In December, the DFEH announced that Mari Mayeda, a prominent civil rights class action lawyer, joined the department as senior staff counsel.

Stay tuned to HRWatchdog for more coverage of the DFEH.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia subscribers can learn more about the DFEH and FEHA claims from the HR Library. Not a HRCalifornia member? Start a free trial now.