They seem to be increasing rapidly and feeding my obsession to report them.
That is, the EEOC’s seemingly insatiable targeting of health care providers for alleged violations of the Americans With Disabilities Act (“ADA”).
If you are a reader of this blog you know. But if not … I refer to this type of ADA case as the EEOC’s targeting “low hanging fruit.” And here’s my refrain:
“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?”
“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.”
Well, we now have one new lawsuit and one new settlement – each of which illustrates my theory about “low hanging fruit.”
The EEOC just sued Goodwill Industries of New York and New Jersey “which provides job opportunities to people with disabilities.”
The EEOC alleged that “it failed to provide reasonable accommodations that would have allowed an employee [with a cognitive disability] to continue working as a janitor in New York City-owned buildings.” The employee “needed additional training or job coaching to properly understand the rules he was required to follow.”
However, it was alleged that his boss issued him written warnings – which he couldn’t read or understand, and when he asked for someone to explain them to him … he was ultimately fired.
Nice touch for any employer. But for an employer “which provides job opportunities to people with disabilities?”
Besides being outrageous, it provided the EEOC with a bullseye in which to shoot at point black range.
As I mentioned in my 2018 year-end post about this subject, if you had any doubt about the EEOC relishing these cases, read the following quote from the EEOC related to a recent “conciliation agreement”: “We appreciate that MJHS was founded upon core values of compassion, dignity and respect and this agreement is consistent with those values.”
For all health care providers out there who follow this blog you know that the EEOC was eager to stress “core values of compassion, dignity and respect,” as a cudgel to batter this health care provider in the media. I shudder to think what the EEOC will say about this new case when it settles – as these usually do.
In a second case, BlueCross/Blue Shield of Texas settled an EEOC lawsuit for $75,000 in which it was alleged that a job applicant who is deaf applied online and was asked to complete an assessment exam with an audio part – which, of course, she was unable to complete. She told the company that she was deaf and requested an accommodation, but the company simply stopped all contact with her.
The EEOC trial attorney noted that “Like so many other people with or without disabilities, [this applicant] just wanted the opportunity to work. She was well-qualified for this position, irrespective of the nature of her disability. Unfortunately, however, the application process became a needless roadblock to her employment.”
What was the company thinking?
This was my takeaway last month, and 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!