In recent months, the U.S. Equal Opportunity Employment Commission (EEOC) has intensified its scrutiny of employer qualification standards under the Americans with Disabilities Act (ADA). This trend follows the EEOC’s identification of this area as an “emerging or developing” issue as highlighted on this blog in September. Indeed, between September 14 and October 2, 2023, the EEOC launched three systemic enforcement actions against prominent businesses in different states, alleging ADA violations due to their qualification standards effectively excluding individuals with disabilities.  

Recent EEOC Actions Under the ADA: Implications for Employers

These cases, involving a  railroad operator, a logistics and shipping company, and a box-retail store, raise significant concerns for employers nationwide. Each of the suits allege that the employer violated the ADA by imposing unlawful qualification standards that have the effect of screening out persons with disabilities:

• In Minnesota, the EEOC alleges that the major railroad operator violated the ADA in 23 states by requiring conductors and locomotive engineers to pass a “light cannon test” and other medical examinations confirming that they did not have a color vision deficiency.
• In Illinois, the EEOC alleges that the logistics and shipping company refused to hire or reasonably accommodate deaf or hearing-impaired individuals to drive trucks over 10,000 pounds.
• In Arkansas, the EEOC filed a nationwide class action alleging that a large box retail store operator terminated disabled employees who were unable to pass a training course shortly after their hire despite supposedly satisfactory job performance.

It is not a foregone conclusion that the EEOC will prevail on these claims. The ADA, its implementing regulations, and other federal regulations permit employers to use qualification standards, tests, or other selection criteria that screen out disabled individuals on the basis of their disability when it is shown to be “job related for the position in question and consistent with business necessity” and no reasonable accommodation is available.[1]

Interestingly, two of these cases involve a conflict between the employer’s duty to comply with federal transportation safety regulations and an employer’s right to apply more stringent safety requirements than required by the regulations. For instance, federal transportation regulations allow for employers to mandate “more stringent requirements relating to safety of operation and employee safety and health.”[2] These very issues have been heavily litigated in the past, and that litigation does not appear be slowing down.[3]

Proactive Measures for Employers

Given this legal landscape, what steps can employers take to ensure compliance with the ADA while maintaining necessary safety standards? An ounce of prevention is indeed worth a pound of cure in this context. Employers should:

Consult Legal Experts: Seek advice from legal professionals experienced in ADA compliance and employment law to conduct a privileged audit of employment tests, to provide clarity regarding ADA requirements, and to minimizing potential legal exposure.

Conduct a Thorough Review: Examine existing testing procedures and qualification standards to ensure they are compliant with the ADA.  This analysis includes evaluating whether each qualification standard (including any post-offer physical demands testing) is necessary and directly related to job duties.  For any tests administered, employers should additionally consider taking steps to validate the testing process. 

Incorporate Accommodation Process: Ensure that any place where employment qualifications are listed, screened or evaluated also contains information about how to request an accommodation.  Accommodations may be available for both the qualification standard itself as well as any testing process used by an employer.  This provides a process by which an employer remains open to potential or new accommodations that may allow an individual to safely perform the essential functions of his of her position.  

Update and Adjust as Needed: If any standards or tests are found to potentially exclude individuals with disabilities unnecessarily, they should be modified. This adjustment must balance the job’s essential requirements with an employer’s ADA obligations.

Conclusion                  

Whether this recent spate of filings is the tip of a new enforcement iceberg, or a new sample of test cases for the agency to assess the viability of a new litigation strategy remains to be seen. Employers are advised to stay vigilant and informed about these developments. By proactively reviewing and adjusting their policies, they can ensure compliance while balancing their duty to offer a safe and inclusive work environment.

[1] 42 U.S.C. § 12112(b)(6); 29 C.F.R. § 1630.10; 29 C.F.R. § 1630.15.

[2] 49 C.F.R. § 390.3(d)

[3] See Tate v. Farmland Indus., Inc., 268 F.3d 989, 995 (10th Cir. 2001) (“Subject to DOT’s minimum standards, Defendant as the employer has the prerogative of determining what is physically required of its [Commercial Motor Vehicle] operators.”); Equal Emp’t Opportunity Comm’n v. Schneider Nat., Inc., 481 F.3d 507, 510 (7th Cir. 2007) (affirming trucking company’s decision not to employ truck drivers with neurocardiogenic syncope, even though DOT allowed it).

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