The EEOC has recently highlighted the significant legal risks that arise from an employer’s inflexible, one-size-fits-all application of certain employment policies. The EEOC has singled out two types of employment policies that are likely to draw its attention: (1) uniform job qualification requirements that permit no exceptions for applicants “regarded as” disabled, and (2) leave policies containing inflexible cut-off dates.

Uniform Job Qualification Requirements Must Be Relevant to Performance

Speaking recently at the 2011 Technical Assistance Seminar, EEOC Legal Counsel Peggy Mastroianni warned employers that, in the wake of the ADA Amendments Act (ADAAA), the EEOC will apply heightened scrutiny to uniform job requirement policies that exclude applicants based on impairments. The ADAAA makes it easier for an applicant to qualify for ADA coverage if he/she is “regarded as” disabled . Prior to the ADAAA, an employer may not have had to defend a no exceptions policy because an affected applicant would not have been regarded as disabled for failing to meet the job requirements. Now, an affected applicant will likely be regarded as disabled, and employers will have to defend the policy on the merits by showing how the policy is relevant to job performance.

EEOC Cracks Down on Inflexible Leave Policies

In recent years, the EEOC has entered into several sizeable settlement decrees resolving allegations that maximum leave policies violate the ADA. The following cases illustrate this trend:

  • In June 2011, Denny’s, Inc. agreed to pay $1.3 million to settle claims it discriminated against disabled employees, including by “maintain[ing] a maximum medical leave policy that automatically denied workers any additional medical leave beyond a pre-determined limit, even when additional leave was required by the [ADA] as a reasonable accommodation.”
  • In January 2011, Supervalu, Inc. entered into a $3.2 million consent decree settling EEOC claims that Supervalu unlawfully terminated disabled employees who, after one year of leave, could not return to work without any accommodation and without any restrictions. The EEOC alleged that this policy shirked the company’s duty to engage in individualized assessments of employees returning from leave.
  • In February 2010, Sears Roebuck & Co. entered into a $6.2 million settlement resolving EEOC allegations that the company maintained “an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.”  

In light of the EEOC’s position towards inflexible job requirement policies and maximum leave provisions, employers should consider reviewing such policies to allow for flexibility and individualized assessment. Employers should be prepared to defend job requirements on the merits by showing a connection with job performance. Leave of absence policies should permit individualized assessment and make room for reasonable accommodation upon an employee’s return from leave.