Navigating EEOC and Labor Department

The focus is likely to be on the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act -- and litigation should increase.

Trends in 2013 suggest that the Equal Employment Opportunity Commission is stepping up litigation, potentially involving large dollars.

Recoveries by the EEOC were $39 million in 2013, slightly down from the $44 million recovered in 2012, but 2013 featured some high-profile cases. In 2014, the focus is likely to be on the Americans with Disabilities Act (ADA) and on the Genetic Information Nondiscrimination Act (GINA).

Even though GINA has been in effect since 2009, it wasn’t until 2013 that the EEOC filed its first lawsuit alleging genetic discrimination. The suit, against Tulsa-based Fabricut (Civil Case No: 13-CV-248-CVE-PJC), alleged the company violated the ADA by refusing to hire a woman because it regarded her as having carpal tunnel syndrome and violated GINA when it asked for her family medical history in a post-offer medical examination. Employers need to be very aware that GINA prohibits requesting family medical history, even with a contract medical provider during a post-offer examination. In May 2013, Fabricut agreed to settle the suit for $50,000 and to take specific actions to prevent future discrimination.

Just nine days into 2014, the EEOC settled its first systemic lawsuit alleging GINA violations, for $370,000. According to the complaint (EEOC v Founders Pavilion Inc. No 13- CV-06250), Founders Pavilion conducted post-offer, pre-employment medical exams and asked applicants to provide information about their family medical history. The suit also alleged that Founders Pavilion: fired an employee after refusing to provide her with an accommodation, a violation of the ADA; refused to hire two women because of a perceived disability; and either refused to hire or fired three women because they were pregnant.

It appears that there will be a major focus in 2014 on ADA and GINA violations –- which go hand in hand. Note that the trend in EEOC litigation regarding ADA claims has shifted from disability to a focus on an employer’s obligation to provide reasonable accommodations.

For federal contractors, the key question in 2014 is: “Are you disabled?” The Labor Department issued new rules that will require federal contractors with 50 or more employees or with more than $50,000 in government work to pose that question to workers, in an effort to reduce the ever-increasing jobless rate of people with disabilities. Employees aren’t required to answer the question, but federal contractors will have to show that at least 7% of their workforce has disabilities or will face fines and potential loss of contracts.

Although the ADA does not allow employers to inquire about disability, the EEOC has made an exception so employers can comply with the Labor mandate. But lots of issues will arise. Do employees want their bosses to perceive them as disabled? Will more employees qualify as disabled with the broader definition of disability enacted with the 2008 amendment to the ADA? What will happen to reasonable accommodations, given that the exception that allows employers to ask about disabilities doesn’t appear to then allow a disabled individual to ask for a reasonable accommodation? 2014 will certainly be interesting!

While we wait to see what shakes out, there are some practices and employer can follow.

Relative to GINA, it is important for employers to know that the new regulations provide a quasi-safe harbor to employers who have inadvertently received genetic information when that information was not sought. The EEOC suggests that the employer use the following language on any requests for medical information:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services."

Relative to reasonable accommodations, employers are being urged by the EEOC to accept a doctor’s work release even if it has restrictions. Employers are also being urged to document entering into the interactive process if the reasonable accommodation is not straightforward or if the employer cannot meet the physician’s restrictions.

Although an employer may not ask disability-related questions or conduct a medical exam of an applicant until after making a conditional offer of employment, an employer may condition employment on the results of a medical examination or inquiries so long as all employees in a classification are subject to the same testing and or inquires and so long as the testing does not infringe on GINA. In addition, post-offer examinations may not be used to discriminate against individuals with disabilities. The testing must also be job-related and consistent with business necessity and evaluate some of the essential functions of the job. Furthermore, these tests cannot discriminate against a certain class. For example, they cannot be unduly difficult for a woman.

According to the ADA, the term “discriminate” includes an employer’s failure to make reasonable accommodations. The applicant should be provided the criteria for passing the test, based on the job description. It is very important for the employer to enter into the interactive process if performance of the essential job functions cannot be met.

Baseline testing -- a tool that can assist employers in managing employees’ injuries by establishing if the injury arose out of the course and scope of employment -- must follow the same guidelines as a post-offer test. Baseline testing must be conducted for all individuals in a classification, must be consistent with business necessity, cannot discriminate against a certain class and must evaluate some of the essential functions of the job. Baseline testing differs from post-offer testing in that it is usually not read until a work-related incident occurs.

2014 might be a trying time for employers, but the best defense for an employer is to be prepared.

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