Synopsis of Settlement Agreements,Court Rulings,EEOC Lawsuits

The case descriptions and EEOC responses given below are excerpts or summations of EEOC press releases.

Reasonable Accommodation and Policy Modification

G2 Secure Staff Pays $30,000 to Resolve EEOC Disability Discrimination Lawsuit: Federal Agency Charged that Texas Staffing Company Failed to Provide Applicant with Reasonable Accommodation and Denied Him Employment Because of Kidney Disease. (11/7/11)
According to the EEOC's complaint, Sharif K. Thompson has end-stage renal disease, a condition in which his kidneys no longer function and he is not able to urinate. The EEOC charged that around May 2010 Thompson applied for a shift supervisor position at G2 Secure Staf'’s facility at Raleigh-Durham International Airport in Raleigh, N.C. Thompson successfully completed all of the requirements for obtaining the position with the exception of a drug test. Due to the fact that Thompson is not able to urinate, he asked if he could take the drug test using a hair sample rather than a urinalysis as an accommodation for his disability. However, the company failed to provide Thompson the opportunity to take the drug test by hair sample or any other means that would have enabled him to be hired into the position he sought. Consequently, Thompson was denied the job. EEOC: "This was a situation where based on EEOC's allegations in the complaint, EEOC contends that the employer could have easily made the requested accommodation and avoided this entire process. This case shows that the EEOC will vigorously prosecute cases where the employer refuses to provide a reasonable accommodation that would enable a person to be hired." http://www.eeoc.gov/eeoc/newsroom/release/11-8-11a.cfm

Use of a Job Coach as a Reaonsable Accommodation

Comfort Suites to Pay $132,500 for Disability Discrimination Against Clerk with Autism: Hotel Fired Him After Denying Him a State-Paid Job Coach
The EEOC charged that a front desk clerk at the Comfort Suites Mission Valley Hotel in San Diego was denied a reasonable accommodation, disciplined and ultimately fired in 2008 due to his disability. The clerk, who has autism, had prior hotel experience in a similar position, where his work earned him a positive recommendation. Shortly after starting at Comfort Suites, he sought free job coach services from the state. A job coach would have helped the clerk learn to master his job by using autism-specific training techniques. However, Tarsadia refused to allow the assistance of a job coach and then fired him. EEOC:Marla Stern, local director of the EEOC's San Diego Local Office, added, "A reasonable accommodation is often minimal in cost and merely involves open communication between the employer and employee to make it work. The results can make all the difference for people with disabilities, allowing them to succeed in the workplace." http://www.eeoc.gov/eeoc/newsroom/release/11-7-11a.cfm

Termination Based on Disability as Health and Safety Risk

Maverik Agrees to Pay $115,000 to Sette EEOC Lawsuit for Disability Discrimination: Employee Unlawfully Fired Because fo HIV Status (11/7/11)
According to public filings in the lawsuit, EEOC v. Maverik, Inc, Maverik learned of the employee's HIV status when it was disclosed in a workers' compensation proceeding. The employee, who had worked for the company over three years, was fired two weeks later because of an alleged fear that he should not be working with food. The EEOC also said that Maverik failed to make reasonable accommodations for the employee. EEOC: "The ADA prohibits employers from terminating employees because of irrational fears about disabilities," said EEOC Regional Attorney Mary Jo O'Neill of the Phoenix District, which includes Wyoming. "HIV/AIDS has been recognized as a disability under the ADA, and there is nothing about having HIV which should preclude an individual from working with food." http://www.eeoc.gov/eeoc/newsroom/release/11-7-11.cfm

Failure to Provide Reasonable Accommodations, Return to Work Based on Job Performance with No Medical Restrictions

Tic Wyoming Agrees to Pay $135,00 to Settlement EEOC Lawsuit for Disability Discrimination (10-21-11)
According to the EEOC’s lawsuit, millwright Matthew Gilkey, despite satisfactorily performing his job for several weeks, was fired by TIC Wyoming on Oct. 27, 2006, because of the need to make reasonable accommodation for his physical impairments, which included a leg amputation. The EEOC also claimed that TIC Wyoming refused to allow Gilkey to return to work unless he provided medical documentation that he could perform his job duties without medical restrictions. The EEOC further alleged that the company also failed or refused to engage Gilkey in good-faith discussions about accommodations he had requested and TIC Wyoming had previously provided but then withdrew. http://www.eeoc.gov/eeoc/newsroom/release/10-21-11.cfm

Reasonable Accomodation for Qualified Employees Who Aquire Disabilities

EEOC lawsuite based on claim that companies should use reasonable accommodations such as assistive technology and workplace flexibility to keep qualified employees on the job if they aquire a disability.

Company Refused to Consider Accommodations for Technician Gone Blind From Diabetes (10-6-11)
A switch technician for a company in Puerto Rico monitored and maintained data, telephone and cellular servers for the wireless provider. He suffered from diabetic retinopathy, which caused him to lose vision in both eyes in November 2008. The accommodation he requested would have permitted him to continue working as a switch technician by utilizing computer software that allows blind persons to use computer programs and applications. The company knew that such software existed, the EEOC said. AT&T acquired the company, Centennial de Puerto Rico, in January 2010 and continued Centennial’s business operations.
EEOC: "Workplace flexibility and making reasonable workplace modifications, such as the use of computer software, to keep qualified employees working, not only makes good business sense in the 21st century, it is required by federal law," said Malcolm Medley, director of the EEOC's Miami District Office. http://www.eeoc.gov/eeoc/newsroom/release/10-6-11c.cfm

Rescinding Job Offers After Medical Examinations

EEOC lawsuit is based on the ADA requirement that if a medical examination reveals a disability, companies must make the decision to rescind a job offer based upon the applicants ability to do the job, with or without reasonable accommodation or significant safety concerns based upon data.

Health Care Staffing Firm Refused to Hire HIV-Positive Nursing Aide (10-5-11)
The EEOC charges that Pittsburgh-based Capital Healthcare Solutions, Inc. extended a job offer to an experienced certified nursing assistant but unlawfully rescinded the job offer less than one month later based on his disability. The job offer was conditioned on the nursing assistant passing a medical examination. In the medical form, his doctor noted that the certified nursing assistant was HIV-positive, but was not restricted from performing the required job tasks, so long as “universal precautions,” such as gloves and face masks, were used.
EEOC: District Director Spencer H. Lewis, Jr., of the EEOC’s Philadelphia District Office,...said, “This lawsuit should remind all employers that they must make employment decisions based on an individualized assessment of the person’s ability to do the job, and not act out of speculative fears or biases against individuals with HIV. http://www.eeoc.gov/eeoc/newsroom/release/10-5-11a.cfm

Employers Responsibility to Engage in the Interactive Process of Reasonable Accommodation

ADA basis for the claim is that employers must engage in an interactive process of reasonable accommodation, before determining an employee with a known disability cannot do the essential functions of the job, and therefore, terminating the employee.

Roadrunner Redi-Mix Sued by EEOC for Disability Discrimination: Cement Driver Discharged, Despite His Ability to Perform the Duties of His Job (10-3-11)
In its suit, the EEOC said that Roadrunner Redi-Mix terminated Mr. Eluid Tafoya because of his alleged inability to perform the job functions of cement driver, although Mr. Tafoya safely performed his job duties for two and a half years of employment. It was not until Tafoya placed Roadrunner on notice of his disability, because of his need for a reasonable accommodation, that Roadrunner immediately sent him home on unpaid leave, and then discharged him from his employment. EEOC: EEOC Deputy District Director Elizabeth Cadle added, "The ADA prohibits managers from ignoring reasonable accommodation requests made by qualified persons with disabilities. Employers must understand their obligation to engage in the interactive process, to talk to their employees and to explore reasonable accommodations." http://www.eeoc.gov/eeoc/newsroom/release/10-3-11i.cfm

EEOC files Lawsuit Against Continental Structures for Disability Discrimination: Industrial Components Molding Company Terminates Disabled Employee (10/5/11)
CSP terminated Joseph Guth after one day of employment because of his disability. According to the EEOC's Complaint, CSP concluded that Guth, who does not have fingers on his right hand, could not operate certain machinery because he is disabled. The EEOC said that CSP failed to engage in any interactive process with Guth and did not provide him with any reasonable accommodations. According to the EEOC's Complaint, Guth performed work assigned to him in an above-satisfactory manner and CSP did not advise Guth that his work was unacceptable.
EEOC: "The reality is that many employers still exclude individuals with physical impairments from certain positions based on myths, fears, or stereotypes," said Regional Attorney Debra Lawrence of the EEOC's Philadelphia District Office... "The ADAAA provides broader coverage for individuals with a disability, however, the duty for an employer to provide reasonable accommodation to a disabled employee has not changed." http://www.eeoc.gov/eeoc/newsroom/release/10-5-11.cfm

Termination Based Appearance of Disability/Regarded As

All Star Marketing Sued by EEOC for Disability Discrimination: Fremont Vacuum Distributor Fires New Hire on Discovering His Disability (9/30/11)
Fremont, Calif.-based vacuum distributor All Star Marketing violated the Americans with Disabilities Act by rejecting an employee because his left hand is deformed...Nathan Sanders successfully interviewed in person with All Star Marketing for a salesperson position. The recruiting manager hired Sanders, asking him to start training and orientation the following Monday. However, on his first day at work, the same manager seemed shocked by the appearance of Sander’s left hand and questioned whether he could do the work of demonstrating vacuums as required by the sales position. She asked Sanders to leave, stating that she was sorry for ever asking him to come in. EEOC: "The goal of the ADA is to ensure that qualified workers, who happen to have disabilities, are able to join the workforce and contribute to their fullest extent. Our office will defend Mr. Sander's right to an equal opportunity to work," said Michael Baldonado, director of EEOC's San Francisco District Office". http://www.eeoc.gov/eeoc/newsroom/release/9-30-11d.cfm

Denial of Job Offers Based on Use of Medication for a Disability/Mitigating Measure

EEOC Files Suit Against Garney Construction and Georgia Power for Disability Discrimination: Contractor Withdrew Job Offer to Applicant with Epilepsy Because of Contract with Electric Utility Company (9/30/11)
According to the EEOC's suit, Garney offered a front-end loader job to Bryan Mimmovich at its construction site at the Georgia Power plant in Juliette, Ga. Mimmovich had worked for Garney operating a front-end loader on two previous occasions. This time, the contract with Georgia Power required applicants for the job to pass a Department of Transportation (DOT) physical examination or an American Society of Mechanical Engineers (ASME) physical examination for crane operators. Mimmovich was diagnosed with epilepsy at age 12 and had been seizure-free with medication since 1988. Nonetheless, he could not pass the DOT physical examination utilized by Garney pursuant to Georgia Power's instructions because he was on medication for epilepsy. Garney subsequently withdrew the job offer citing contractual requirements with Georgia Power.
EEOC: "Refusing to hire a qualified job applicant with epilepsy long controlled by medication defies logic and violates the law," said Barbara A. Seely, regional attorney of the EEOC's St. Louis District Office. "Congress passed the ADA to protect Americans with disabilities from fears and myths about their conditions. People with epilepsy whose seizures are controlled by medication should not be excluded from any job because employers fear on-the-job accidents." http://www.eeoc.gov/eeoc/newsroom/release/9-30-11b.cfm

Performance Standards and Reasonable Accommodation

EEOC Sues Hospital Housekeeping for Disability Discrimination at Children's Hospital Mentally Impaired Housekeeper Denied Time to Learn Safety Signs and Fired (9/30/11)
The housekeeper applied for the position in 2006 with the assistance of her mother, disclosing her difficulty with reading, which was due to a mental impairment. The department director assured them that it would not be an issue and hired her into the position, according to the EEOC. Two weeks later, a new department director indicated that the reading issue was a problem and tested the housekeeper's ability to read signs at the hospital. The EEOC contends that the housekeeper requested time to learn the signs at home, since she was not able to do so quickly on the spot. However, the new department director denied her request for a reasonable accommodation and immediately fired her, despite the retention of other housekeepers without disabilities who were also unable to read the signs, according to the EEOC. EEOC: Melissa Barrios, director of the EEOC's Fresno Local Office,... "Applying higher standards to candidates and workers with disabilities is both wrong and illegal. In fact, employers should dialogue with them to ensure that proper accommodations - which are often minor - are made so they may be fully successful on the job." http://www.eeoc.gov/eeoc/newsroom/release/9-30-11k.cfm

Required Leave of Absence Based on Disability

Required leave of absence because of a disability, must be based only on medically documented risk or inability to perform the essential functions of the job without reasonable accommodations.

Dole Sued by EEOC for Disability Discrimination: Salinas Farmworker with Epilepsy Denied Opportunity to Work (9/30/11)
The EEOC's investigation showed that for eight years, Dole was able to accommodate a worker with epilepsy employed as a broccoli packer at its Salinas facility. When he experienced a seizure at work, the company simply allowed him to take a break and he would return to work when he had recovered. The number of seizures varied, but had decreased in frequency over the years. However, after an epileptic seizure in 2010, the employee was sent home and not permitted to return to work for two weeks, despite past policy and several notes from his doctor clearing him to return to work, says the federal agency. EEOC: EEOC San Francisco Regional Attorney William R. Tamayo said, "Based on the doctor's notes and its own past practice, Dole should have returned this employee to work. Instead, the company allowed speculation and fears over his disability to prevent a long-time employee from returning to his job. This is exactly the type of discrimination the ADA was meant to address and stop." http://www.eeoc.gov/eeoc/newsroom/release/9-30-11e.cfm

Denial of Promotion Based on Disability

Safeway Sued for Disability Discrimination EEOC Says Qualified Employee Repeatedly Denied Promotion, Told "You Need Two Hands" To Advance (9/30/11)
According to the EEOC's investigation, Glenn Davis, who worked as a clerk at Safeway's store in Carmel, Calif., was deterred from applying for a promotion by his supervisor. When Davis, who has cerebral palsy and physical limitations in one of his hands, expressed a desire to advance, his supervisor consistently advised him that he needed two hands to perform the jobs he was interested in, said the agency. Meanwhile, other less qualified employees obtained promotions. Only after filing an EEOC charge, Davis finally was promoted. EEOC: San Francisco District Director Michael Baldonado added, "Don’t confuse disability with inability. The ADA encourages us to open doors to all a worker can do, rather than preemptively rejecting qualified and motivated employees, who just so happen to have a disability." http://www.eeoc.gov/eeoc/newsroom/release/9-30-11f.cfm

Reasonable Accommodation and the Application Process

EEOC files suite on the basis that employers must provide reasonable accommodations to individuals with disabilities seeking employment during the application process.

Texas Staffing Company Failed to Provide Applicant with Reasonable Accommodation (9/12/11)
According to the EEOC's suit, Sharif K. Thompson has end-stage renal disease, a condition in which his kidneys no longer function and he is not able to urinate. The complaint alleges that around May 2010 Thompson applied for and successfully completed all of the requirements for obtaining the position of shift supervisor with the exception of a drug test. Due to the fact that Thompson is not able to urinate, Thompson asked if he could take the drug test using a hair sample rather than a urinalysis as an accommodation for his disability. However, the company failed to provide Thompson the opportunity to take the drug test by hair sample or any other means that would have enabled him to be hired into the position he sought. Consequently, Thompson was denied the job.
EEOC: "Employers have a duty to work with applicants as well as employees who request reasonable accommodations," said Lynette A. Barnes, regional attorney for the EEO'’s Charlotte District.... "Once an applicant has made such a request, he cannot just be ignored". http://www.eeoc.gov/eeoc/newsroom/release/9-12-11a.cfm

Resasonable Accommodation and Apparent Disabilities

Bank of America's Failure to Accommodate Blind Employee Draws EEOC Lawsuit: Giant Could Have Kept Data Entry Worker On the Job at Chicago Facility Instead of Firing Him (9-13-11)
Bank of America Corporation violated federal law by failing to accommodate a legally blind data entry worker and firing him after one day’s work because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. John P. Rowe, the EEOC’s district director in Chicago, said the agency found reasonable cause to believe that Bank of America was aware of the vision impairment of the worker at the bank’s 540 West Madison Street facility in Chicago and did not even consider the possibility of accommodating him.
EEOC: When a worker's disability is obvious or apparent, the ADA requires employers to engage in an interactive process with the employee to identify possible accommodations," said Rowe. "Here, our pre-suit administrative investigation indicated that Bank of America was aware of this worker's vision impairment and allegedly failed to consider whether it would be reasonable to provide him with a bigger monitor, font-enlarging software, or any other accommodation". John C. Hendrickson, the EEOC's regional attorney in Chicago, said, "Visually impaired individuals are fully capable of performing data entry work when appropriate accommodations are provided. Indeed, as long as typewriters have been around -- not to mention all the kinds of keyboards, monitors, and talking terminals now available -- this is a kind of work at which people with impaired sight have long excelled. Our contention is that a banking giant like Bank of America could have accommodated the charging party and kept him on the job. There was no need to put him on the street." http://www.eeoc.gov/eeoc/newsroom/release/9-13-11a.cfm

Termination after Denial of Reasonable Accommodation/Reasonable Accomodation and Training

Employers who deny reasonable accommodation requests and then fire employees for being unable to perform their jobs, may be in violation of the ADA. Employers also have an obligation to provide reasonable accommodations for employees to participate in training offered by the employer.

Company Refused to Accommodate Deaf Employee, Then Fired Her (9/12/11)
While working in Miles Kimball's Information Technology Department in 2007, Nejedlo was assigned to use a new software program for the company’s computer system. She was allegedly denied her requested accommodation of a sign language interpreter for training and so could not fully utilize the new program. In February 2008, after 13 years of successful employment with Miles Kimball, Nejedlo was fired.
Response: EEOC Chicago Regional Attorney John C. Hendrickson added, "In our view, this is one of those cases in which a reasonable accommodation would have made all the difference. An employer would have kept an able and loyal long-term employee. The employee would have kept a needed job. That didn’t happen, apparently because of a violation of federal disability law. Our objective here will be to set things right." http://www.eeoc.gov/eeoc/newsroom/release/9-12-11.cfm

Reasonable Accommodation and Flexible Workplace Policies

Employers should consider modifying workplace policies or allowing flexibility, as needed, in adhering to workplace policies as a reasonable accommodation.

Store Fired Worker with Diabetes for Eating Chips to Stop Hypoglycemia Attack (9/8/11)
According to the EEOC, Josefina Hernandez, a cashier at Walgreens' South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar). Hernandez had worked for Walgreens for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes. Nevertheless, Walgreens fired her after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty." I almost always carry a piece of candy in my pocket for situations when I feel my blood sugar getting low, but I didn’t have anything on me this time," said Hernandez. "I knew I needed to do something quickly, so I reached for a bag of chips and paid for them as soon as I could. I worked for Walgreens with no problems almost two decades, so I am very upset to lose my job over this."
Response: EEOC San Francisco Regional Attorney William R. Tamayo said, "Employers clearly have an affirmative duty to accommodate employees with disabilities. Ms. Hernandez took action to raise her blood sugar in what could have turned into an emergency situation. Accommodating disability does not have to be expensive, but it may require an employer to be flexible and open-minded. One wonders whether a long-term, experienced employee is worth less than a bag of chips to Walgreens." http://www.eeoc.gov/eeoc/newsroom/release/9-8-11c.cfm

Termination Based Solely on Disability

Termination cannot be based solely on the fact that an employee has a disability or the belief that the disability "might" result in ability to perform the job, or pose a health/safety risk based on unfounded concerns or stereotypes.

Tire Manufacturer Violated ADA by Firing Woman Because of Bleeding Disorder (9/7/11)
In October 2007, Alisha D. Adams applied for the position of tire builder at Goodyear’s Fayetteville facility and was deemed qualified for the job. Adams received a conditional offer of employment. During Goodyear’s post-offer medical examination, Adams disclosed that she had menorrhagia, a bleeding disorder associated with her menstrual cycle. As a result of this disclosure, Goodyear required Adams to obtain medical clearances from two physicians. Adams was medically cleared to work by two separate physicians, including a specialist, and began to work for Goodyear on or about Jan. 31, 2008. Around Feb. 22, 2008, after Adams had been medically cleared and had begun her employment, Adams disclosed to her supervisor that she had been diagnosed with menorrhagia. Thereafter, according to the complaint, Adams was terminated by Goodyear because of its unfounded belief that Adams was substantially limited in remaining conscious and working.
Response: "It's unfortunate that 20 years after the enactment of the ADA, some employers still react to applicants and employees with medical impairments based on myths, fears and stereotypes about those impairments," said EEOC Regional Attorney Lynette A. Barnes of the agency’s Charlotte District. http://www.eeoc.gov/eeoc/newsroom/release/9-7-11a.cfm

Reasonable Accommodation and Temporary Leave of Absence/Reasonable Accommodation and Interactive Process

This settlement agreement affirms that temporary leave of absence is a reaonsable accommodation under the ADA. Also, employers must not refuse to consider a request for reasonable accommodation, but must engage in the interactive process and provide accommodations that would not pose an undue hardship.

Scooter Store Refused Leave of Absence for Employee with Kenn Injury, Then Fired Him. (9/2/11)
The EEOC alleges that The Scooter Store failed to accommodate an employee's request for a reasonable accommodation for his disability, psoriatic arthritis, after he sustained a knee injury that required a temporary absence from work. The EEOC's suit states that the employee timely informed the company he was incapacitated until further notice and that he required a leave of absence to seek treatment for his disability. However, The Scooter Store refused his request and instead fired him, purportedly for job abandonment, although he had presented medical documentation.
Response: "Granting a temporary leave of absence to this employee would have posed no undue hardship on this company and would have allowed the employee to recuperate and return to work," said Adela Santos, trial attorney in the EEOC's New York District Office.

Elizabeth Grossman, regional attorney for the EEOC's New York District, added, "Employers are obligated to engage in an interactive process with employees and provide reasonable accommodations for their disabilities. Refusing to even consider an employee's request for a reasonable accommodation is tantamount to a clear violation of the ADA." http://www.eeoc.gov/eeoc/newsroom/release/9-2-11a.cfm

Reasonable Accommodation and Temporary Leave of Absence or Reduced Work Hours

Temporary leave and/or reduced work hours may be considered as a reasonable accommodation and should not be immediatly denied unless the leave would cause an undue-hardship. (8/30/11)

Air Transport Communications Company Discharged Employee with Cancer While on Short-Term Disability Leave
Darlene Case was hired as a full-time personal assistant to SITA's vice president. Shortly after accepting the offer of employment, Case learned that she would require surgery as a result of her cancer. Due to the surgery, she requested a reasonable accommodation of having her start date moved and then being allowed to work part-time for the first two weeks. In response, the employer rescinded the employment offer.
Response: "This suit is being filed to ensure that employers understand that they have an obligation, short of incurring undue hardship, to provide a reasonable accommodation to employees," said Robert Dawkins, regional attorney for EEOC's Atlanta District Office, which filed the suit.http://www.eeoc.gov/eeoc/newsroom/release/8-30-11a.cfm

Denial of Reasonable Accommodation and Retaliation

A request for reasonable accommodation should not be treated as a employee performance problem and employers must engage in the process of reasonable accommodation before determining an employee cannot do the essential functions of his or her job. (8/29/11)

Auto Giant Refused Disabled Employee's Request to Telework and Fired Her Instead
The lawsuit alleges that Ford violated the Americans With Disabilities Act when it refused to let Jane Harris participate in its liberal telecommuting program as a reasonable accommodation for her gastro-intestinal condition. Instead, Ford began to criticize her performance, placed her on a "performance enhancement plan," and discharged her only months after she complained about being denied an accommodation.
Response: "Failing to offer a reasonable accommodation to an employee and then discharging her under these circumstances is a clear violation of the ADA," said Nedra Campbell, trial attorney for the EEOC. "Ford denied Ms. Harris’s request without considering its legal obligations". http://www.eeoc.gov/eeoc/newsroom/release/8-29-11.cfm

Reasonable Accommodation & Schedule Changes.

Schedule changes should be considered as a reasonable accommodation and employers must show that a schedule change would cause an undue hardship as a reason for denial. The main point of the case was that a request for a schedule change was not even considered by the company.

Employee Forced to Quit After Store Denies a Regular Schedule to Accommodate Her Diabetes (8/23/11)
Kohl's department store in Westbrook, Maine changed the long-held set schedule of an employee with diabetes to a rotating schedule. She began to suffer significant complications to her diabetes after working the rotating schedule. She requested to be returned to her set schedule and provided a note from her physician explaining that a set schedule was needed to prevent serious complications from her diabetes. Kohl's repeatedly denied the request even though other employees had received changes in their schedules for reasons such as day care and transportation. The woman then left her job in order to maintain her health. Response:""Keeping Ms. Manning on a regular, set schedule would have posed no undue hardship on this company. When one considers the possible dire consequences of ignoring her needs, refusing her request out of hand was unconscionable." --Elizabeth Grossman, regional attorney for the EEOC's New York District. http://www1.eeoc.gov/eeoc/newsroom/release/8-23-11.cfm

Denial of Reasonable Accommodation and Termination Based on "possible danger to employees and customers".

Employment decisions must be based on actual threats to safety rather than perceptions or bias. The EEOC commended Starbucks response that included training of managers and supervisory employees. The case demonstrates the importance of a company's managers and supervisors understanding employees rights under the ADA.

El Paso Cafe' Refused Reasonable Accommodation and Fired Barista Due to Dwarfism (8/1811)
According to the EEOC's suit, Elsa Sallard, whose stature is small due to dwarfism, was denied an opportunity to work for (Starbucks) the world's largest coffeehouse chain. The job description for the barista position stated that no prior experience was required. During the orientation training, Sallard suggested that she could use a stool or small stepladder to more easily perform some of the tasks of preparing orders and serving customers. The manager at the El Paso Starbucks location disregarded Sallard's request, the EEOC said. On the same day that Sallard requested the accommodation, Starbucks terminated her employment, claiming that she would pose a "danger" to customers and employees. Response: EEOC Trial Attorney Joel Clark added, "The ADA prohibits managers from ignoring reasonable accommodation requests made by qualified persons with disabilities. In-house education can be effective toward eliminating assumptions and promoting an interactive process for a more inclusive work force." http://www1.eeoc.gov/eeoc/newsroom/release/8-18-11.cfm

Termination Based Solely on Disability

This case shows the importance of basing both hiring and termination decisions upon the individual's ability to do the essential functions of job rather than terminating a new hire solely on the fact that the employee has a disability.

National Health Care Corporation Sued by the EEOC for Disability Discrimination (8/17/11)
According to the EEOC's suit, National Health Care violated the ADA by firing Elisa Stamey because she had multiple sclerosis (MS) and a history of bursitis. Stamey, a registered nurse with over 15 years of experience, applied for a job with NHC's Ft. Oglethorpe, Ga., location and was hired in December 2009 as a part-time weekend registered nurse/shift supervisor. On Dec. 21, 2009, she received her schedule and filled out the new hire paperwork including a medical questionnaire which revealed her medical conditions. Upon learning of these, the company required a medical release from Stamey's physician. The next day, before she could get the proper form from her doctor, Stamey was terminated. Response: "The EEOC is committed to vigorously enforcing the ADA," said Bernice Williams-Kimbrough, district director for the EEOC's Atlanta District Office. "As Congress made clear in the ADAAA, the protections for persons with disabilities should be broadly applied. Ms. Stamey is a perfect example of the people the amendment was designed to protect." http://www1.eeoc.gov/eeoc/newsroom/release/8-17-11a.cfm

Protection of Employees Who are "Regarded As" having a Disability.

Woman Was Fired for Migraines at Work, Federal Agency Charges. (8/17/11)
The EEOC is suing Rexnord Industries for violating Title I of the ADA. According to the EEOC's district director in Chicago, the EEOC's pre-suit administrative investigation revealed that Rexnord's Stearns Division fired Danielle Sullivan after she twice became ill at work. Sullivan suffers from migraines and was regarded by Rexnord as having a seizure disorder.
Response: EEOC Chicago Regional Attorney John C. Hendrickson said, "The ADA has been on the books for around 20 years. Most employers achieve compliance as a matter of course, but there are those who don't. It looks to us as though Rexnord may have slipped into the latter group as far as Danielle Sullivan is concerned, and we have undertaken this litigation to correct that."

Reasonable Accommodation & Medication.

The EEOC charges that allowing an employee time to alter and/or adjust to medication can be a reasonable accommodation. Failure to consider or engage in any attempt to provide reasonable accommodations is considered discrimination under the ADA.

Pantengo Utility Failed to Provide Employee with Reasonable Accommodation
According to the EEOC's complaint, since 2002, Jeffrey Erdman has suffered from a chronic pain condition that substantially limits the functioning of his neurological system. Erdman began working for Tideland EMC as an apprentice lineman in February 2009. According to the EEOC's suit, around May 2009, Tideland EMC learned that Erdman was taking a legally prescribed narcotic medication in order to manage his chronic pain condition. Upon learning about Erdman's medication, the EEOC said, Tideland EMC terminated Erdman without giving him a reasonable amount of time to change his medication regimen in order to keep his employment. EEOC Response: "Employers must attempt to work with disabled employees who need an accommodation to perform the essential functions of their jobs," said Lynette A. Barnes, regional attorney for the EEOC's Charlotte Regional Office.http://www1.eeoc.gov/eeoc/newsroom/release/6-23-11.cfm

Discrimination Based on Disability Confidentiality of Medical Information

The ADA protects employees from termination based solely on having a disability. Title I provisions of the ADA also require employers to keep employee medical and health records confidential. The settlement agreement below provides a clear example of both improper use of medical information and termination based on the fact that the employee had or was perceived as having a disability.

Ellicott City Surveying Company To Pay $77,000 To Settle EEOC Disability Discrimination Lawsuit
According to EEOC's suit, Fisher, Collins & Carter, Inc. engaged in unlawful disability discrimination when it fired Robert Gray and Wayne Seifert shortly after it discovered, through a questionnaire on employees' health conditions, medical issues and medications, that they both had both diabetes and hypertension. Gray had worked for the company for 15 years starting as a rodman (a surveyor's technician) and was a party chief at his termination. Seifert had been employed since 2000 as a rodman. Both had demonstrated successful performance throughout their employment there. http://www1.eeoc.gov/eeoc/newsroom/release/6-20-11.cfm

Discrimination based on being "regarded as" an individual with a disability.

The ADA protects not only people with disabilities against discrimination, it also extends this protection to individuals who do not have a disability but experience discrimination because they are "regarded as" an individual with a disability. The settlement agreement below provides a good example of the definition of "regarded as"having a disability under the ADA.

Englobal Engineering To Pay $100,000 To Settle EEOC Disability Discrimination Suit Company Fired Employee Because of False Belief He Had MS.
The Agency Charged Jeffery Rose was employed as the regional safety supervisor at ENGlobal's Beaumont facility. Soon after starting his job, he began experiencing numbness and tingling in his extremities. Rose sought medical tests to determine the cause of the symptoms. He informed his immediate supervisor, the regional safety manager, of the symptoms, his doctor's visits, and medical tests. He also told the regional safety manager that the doctors believed he may have MS. The regional safety manager was a part-time paramedic who claimed to be familiar with MS. Upon learning of the potential MS, the regional safety manager recruited someone else for Rose's position and urged him to take medical leave, telling him that MS is "very debilitating" and that he did not think the company would "want to deal with" his disease. Rose followed his supervisor's advice and took medical leave. However, when Rose obtained from his doctor full medical clearance to return to work without any restrictions, ENGlobal's human resources manager refused to honor it, stating that Rose's position was no longer available, despite the fact that it was available and remained so until the company hired someone else for the position approximately two weeks later. EEOC: "We hope this settlement sends a clear message to all employers that decision making based on myths, fears and stereotypes about physical conditions, rather than on objective analysis of a person's actual capabilities, constitutes disability discrimination and it is a violation of federal law," said EEOC Houston Regional Attorney Jim Sacher. "The ADA requires that all employees be given equal opportunity to jobs regardless of actual or perceived disabilities". http://www1.eeoc.gov/eeoc/newsroom/release/6-17-11.cfm

Transfer to another position as a reasonable accommodation.

A transfer to another position, if the employee with a disability is qualified for the position, is considered a reasonable accommodation unless doing so would cause an undue hardship or administrative burden for the employer. When a qualified employee with a disability requests a reasonable accommodation, the employer must take steps to see if the accommodation, or some form of the accommodation, can be provided. Refusal of a reasonable accommodation must be based on the criteria for establishing undue burden, direct threat, and administrative hardship.

Apparel Retailer Finish Line Settles EEOC Disability Discrimination Lawsuit
According to the EEOC's suit, Finish Line refused to grant Emma Armon, who has a physical impairment related to a right shoulder injury, a transfer to an available customer service representative position as a reasonable accommodation to her disability. Armon, who worked at Finish Line's Indianapolis store/warehouse, was qualified for the open position. EEOC Response: "As the statute makes clear, failure to provide a reasonable accommodation for disabilities is in violation of federal law," said Laurie Young, regional attorney for the EEOC's Indianapolis District Office. "We are committed to pursuing justice for those who are denied the right to continue to work in their jobs and make a living because their physical impairments. http://www1.eeoc.gov/eeoc/newsroom/release/6-16-11a.cfm

Definition of Essential Functions of a Job Reassigning Non-Essential Functions as Reasonable Accommodation

A qualified individual with a disability is protected from employment discrimination if they can do the "essential functions" of their job with or without reasonable accommodations. Essential functions are the fundamental job duties of the position-- activities considered essential because the reason the position exists is to perform that function. Activities that are marginal to the job are not considered "essential functions". Some activities can be considered essential to a particular position based upon that fact that a limited number of other employees are available to carry out the activity or the activity is highly specialized and the employee was hired because of his or her expertise and ability perform that specific activity.

EEOC Obtains $600,000 Verdict Against AutoZone For Failure To Accommodate Disabled Employee. Jury Finds That Auto Parts Retailer Refused to Accommodate Sales Manager with Neck and Back Impairments.
AutoZone was charged with requiring a sales manager to perform certain cleaning tasks, including mopping floors, that violated his medical restrictions. The sales manager, who worked at the company's Macomb, Ill., retail store until 2003, is disabled with permanent back and neck impairments. The EEOC presented evidence that mopping floors was a non-essential function of the sales manager position that could have been reassigned to other employees, and that the employee could perform all of the essential functions of his job. The sales manager testified that that he asked not to be assigned mopping and supported his request with documentation of his impairment. The EEOC's evidence at trial indicated that in 2003, new store management refused the request and required the employee to mop, leading to further injury and necessitating a medical leave. EEOC Response: The EEOC charged that the company's actions violated the Americans with Disabilities Act (ADA), which requires that employers make reasonable accommodations to the known physical limitations of employees with disabilities. Under the ADA, a reasonable accommodation may include the elimination or modification of a non-essential job duty, or the transfer of a non-essential job duty to another employee. http://www.eeoc.gov/eeoc/newsroom/release/6-3-11e.cfm