Eight Figure EEOC Settlement Underscores Need for Flexibility in ADA Accommodations

In the September, 2011 edition of HR Magazine, it is reported that 24 named subsidiaries of a telecommunications company collectively paid $20,000,000.00 to settle a nationwide class disability discrimination lawsuit filed in Baltimore arising from charges of discrimination under the Americans with Disabilities Act (“ADA”).  According to the article, this payment constitutes the largest disability discrimination settlement in a single lawsuit in EEOC history.  The settlement is pending court approval.  In a press release issued by the EEOC, the Director of the EEOC’s Philadelphia District Office, said, “[t]his settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.” 

The underlying ADA charge alleged that the employer unlawfully denied reasonable accommodations to hundreds of employees, then disciplined or fired them under a “no fault” attendance plans.  The crux of the EEOC charge is that the employer violated the ADA by refusing to make exceptions to accommodate employees with disabilities.  Under the “no fault” attendance policy, employees were subjected to discipline after accumulating a number of “chargeable absences.”  Placement into the disciplinary program ultimately subjected the employees to more serious consequences, including termination.  The EEOC claimed that by subjecting all employees to this “no fault” plan, the employer failed to provide reasonable accommodations for people with disabilities by refusing to make exceptions to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities.  Instead, according to a press release issued by the EEOC, the employer disciplined or terminated employees who needed such accommodations. 

This charge of discrimination, and ultimate settlement, highlights the fact that best practices dictate that employers must engage in an interactive process with employees to identify whether a reasonable accommodation is needed, and, if so, to what extent.  The HR Magazine article also points out that the recent ADA amendments require employers to take into account the more liberal and expanded definition of what constitutes a disability.  The more liberal definition of “disability” could account for the higher number of EEOC charges based on alleged disability discrimination.  According to the EEOC’s statistics, in fiscal year 2010, private sector workplace disability discrimination charge filings increased by 17.3 percent over the prior fiscal year. 

However, even the recent ADA amendments do not require an employer to excuse an employee’s absences indefinitely.  Regular attendance is still considered by most jurisdictions to be a necessary job function.  While an employer may need to look to flex time and telecommuting in some instances, it is not a requirement under the ADA that you have to continually excuse an employee who never comes to work.

This article was written by M. Robin Repass, Jackson Kelly PLLC.