Railroad Unlawfully Disqualified Workers Because Of Disabilities, Federal Agency Charges

PITTSBURGH, Pa. - Norfolk Southern Corporation and subsidiary Norfolk Southern Railway Company, a provider of rail-based transportation services in 22 states, violated federal law by disqualifying a class of job applicants and employees from positions at Norfolk Southern based on disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit the agency filed today.

According to the EEOC's lawsuit, Norfolk Southern's medical department subjected a class of workers to unlawful exclusion from employment based on a wide range of actual or perceived disabilities, or a history of such disabilities, disclosed during pre-employment or return-to-work medical evaluations. The EEOC asserts that Norfolk Southern engaged in a practice of medically disqualifying workers without proper consideration of whether, or to what extent, their conditions may or may not affect the workers' ability to safely perform the jobs they sought or already held.

The class of workers to which Norfolk Southern subjected to disability discrimination included people with, or who Norfolk Southern perceived to have:

• cancer, receiving chemotherapy treatment or having previously received such treatment within a year of seeking employment;
• diabetes or related elevated glucose levels;
• past drug addiction and drug addiction treatment, including any workers who had not yet reached a one-year post-treatment threshold without relapse;
• arthritis;
• non-paralytic orthopedic impairments;
• cardiopulmonary or cardiovascular impairments; and
• post-traumatic stress disorder (in this case, a military veteran).

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination in employment based on disability, an employer's accurate or mistaken perception that a worker has a disability, or a history of disability. An employer that excludes a worker from employment based on disability status and purported safety concerns must demonstrate that the worker actually poses a significant risk of substantial harm when performing essential functions of the position and that such risk cannot be eliminated or reduced to an acceptable level through the employer's provision of reasonable accommodations for the disability.

The EEOC filed suit (U.S. EEOC v. Norfolk Southern Corporation and Norfolk Southern Railway Company, Case No. 2:17-cv-01251) in U.S. District Court for the Western District of Pennsylvania - Pittsburgh after first attempting to reach a pre-litigation settlement through its administrative conciliation process. The agency's lawsuit seeks an injunction to stop such discrimination and prevent it in the future, court-ordered job reinstatement, and payment of monetary remedies in the form of past and future lost wages and benefits, compensatory damages, and punitive damages to a class of workers adversely affected by Norfolk Southern's employment practices.

"Cancer, diabetes, opioid addiction recovery, and other medical conditions involved in this case - these are all major public health concerns in our country," said EEOC Regional Attorney Debra M. Lawrence. "Workers living with disabilities such as these need our nation's support and protection, and employers have a responsibility to respect the legal rights of those workers to earn a living free from unlawful discrimination."

EEOC District Director Kevin Berry added, "The law and common decency do not permit employers to bar people with disabilities from employment when the disability does not affect their ability to do the job safely. Qualified individuals with disabilities, like all people, deserve the chance to support themselves and their families and the EEOC is here to ensure they receive equal employment opportunities."

Eliminating barriers in recruitment and hiring -- especially class-based recruitment and hiring practices that discriminate against persons with disabilities; members of racial, ethnic and religious groups; older workers, and women -- is one of six national priorities identified by the Commission's Strategic Enforcement Plan.

The lawsuit was commenced by the EEOC's Pittsburgh Area Office, one of four component offices of the agency's Philadelphia District Office. The Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Attorneys in the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.