Seems that they are coming faster now – EEOC suits under the ADA against health care facilities, that is.
The EEOC just sued a senior living community in Colorado for refusing to accommodate an employee with fibromyalgia. The employee was — the Health & Wellness Director!
According to the complaint, the employee requested as a “reasonable accommodation” an ergonomic chair, adjusted office lighting, and a part-time schedule for eight days. This may not seem unreasonable, but she was told that they were, indeed, “unreasonable,” and would cause an “undue hardship.” The company did not engage in the required interactive process or proposed any alternative accommodations of its own.
When the employee filed a discrimination charge with the EEOC, she was fired, allegedly “because you have failed to engage in the interactive process within reasonable terms.”
The EEOC said (take heed employers and HR folks):
1. “Reasonable accommodations and the interactive process are essential and necessary parts of the process assuring people with disabilities those same opportunities;” and
2. “The EEOC stands ready to assist disabled employees and applicants whenever they believe their rights have been violated or they suffer retaliation for exercising their rights. Employers are responsible for complying with the employment practices lawfully required by the ADA.”
It seems that the company must have had some familiarity with the ADA – it used all the necessary buzz words and referred to the appropriate legal concepts – albeit ineptly. Nonetheless, accepting the allegations of the complaint as true, how did the company violate the ADA? Let us count the ways:
1. It failed to engage in the required interactive process with the employee, even though the employee commenced the process by setting forth her requested accommodation.
2. It failed to provide reasonable accommodations. (This is a weaker point, because we are not in a position to second-guess the company’s belief that the requested accommodation would be an “undue hardship.” But the request sure seems reasonable on its face).
3. It fired her in retaliation for her filing a discrimination charge with the EEOC.
4. It provided her with what seems to be a pretextual reason for her firing, which down the road may cause problems if the case goes to a jury. (Check out the concept of “pretext plus”).
Way back on October 1, 2012 we titled a post “EEOC Making An Example Of Health Care Industry As ADA Violators.” Since then we have written innumerable posts in which we have detected a pattern of the EEOC’s targeting of health care facilities and providers for violating the ADA, and have even characterized these cases as “low hanging fruit,” and “shooting fish in a barrel.”
In fact, just the other day we quoted an EEOC attorney, who was commenting on the filing of another suit against a health care facility said:
“One would hope that a health care organization would be the employer least likely to fire someone because she was recovering from serious surgery. Such conduct is not only cruel and insensitive, it’s illegal, and the EEOC is here to combat it.”
Employers: Knowing the law and getting legal advice is great and recommended – but make sure it is correct and you follow it!