No Summer Breaks for the EEOC

by Kelley Drye & Warren LLP
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As many of us settle into September, with fond memories of our summer vacations, do not think that the federal agencies were on a hiatus. In fact and despite predictions that the EEOC under the new administration would be less aggressive in enforcing the discrimination laws, the Commission has been very active and did not take much of a summer vacation.

A survey of recent enforcement actions brought and settlement by the EEOC illustrate that the agency is still aggressively prosecuting cases, and continues to be focused on several key areas namely: combatting disability discrimination, proper accommodations and treatment of pregnant employees, and claims of systemic gender discrimination in company policies.

EEOC Sues Accuses Employer of Firing Worker With Breast Cancer
In late August, the EEOC sued the Illinois Action for Children (IAC), alleging that the IAC unlawfully fired an employee who was out on leave for breast cancer treatment, violating the Americans with Disabilities Act and the Civil Rights Act of 1991.

This case highlights the danger of standing behind a strict leave policy and denying requests for leave extensions.

The plaintiff, Myrnie Brown, had worked for the IAC for two years, when she was diagnosed with breast cancer and requested, and was granted, a leave that would span June through October 1, 2015. She later requested an extension of that leave to November when her doctor ordered follow-up treatments. IAC denied that extension and fired Brown.

Interestingly, Brown was eventually rehired, but had been out of a job for over 6 months. Clearly, the rehiring did not save the day for the IAC, as the EEOC contends that it failed to accommodate Brown by not considering an extension of the leave as a reasonable accommodation.

EEOC Chicago district regional attorney Greg Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness. When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

– We will have to wait and see where that case goes.

EEOC Disability Discrimination Suit Against UPS Settled for $2 Million
Continuing the emphasis on leave polices, in August, the EEOC announced a $ 2 million dollar settlement of a long-running suit against UPS challenging an inflexible leave policy as a violation of the ADA. The suit involved a class of nearly 90 current and former UPS employees.

The EEOC challenged the unlawful company policy which gave employees a maximum of 12 months of leave – MORE than any law requires – but then automatically discharged anyone who was unable to return to work after exhausting the 12 months.  The EEOC claimed that UPS violated the ADA, for not engaging in the interactive process to determine whether there was some reasonable accommodation that would have allowed the employee to return to work.

The plaintiff behind this suit was former employee, Trudi Momsen. Momsen had taken a 12-month leave due to multiple sclerosis. She returned to work but shortly after returning needed another two-week leave. At that point, UPS terminated her for exceeding the 12-month leave policy. The EEOC concluded that UPS’ strict 12-month leave policy violated the ADA.

In addition to $2 million dollars in monetary relief, the settlement requires UPS to:

  • revise its policies on reasonable accommodation; and
  • train those who administer the company’s disability accommodation processes.

UPS will also be monitored by the EEOC for several years.

Interestingly, the EEOC made clear in its press release that having a generous LOA policy, in this case 12 months, does not, in and of itself, guarantee compliance with the ADA. The EEOC stated that the policy “must also include the flexibility to work with employees with disabilities who may simply require reasonable accommodation to return to work.”

EEOC Sues Estee Lauder Over Its Parental Leave Policies  
Also in August, the EEOC sued Estee Lauder, claiming that its leave policy discriminated against Christopher Sullivan, a male employee who requested six weeks of paid leave as the primary caregiver for his child.

In 2013, Estee Lauder implemented a new parental leave policy, which allowed new mothers six weeks of paid leave as a “primary caregiver”, after their disability leave was used up, as well as four weeks of “transition” time in order to get back to work. According to the complaint, the policy allowed new fathers only two weeks of paid leave, as a “secondary caregiver”, and no “transition time”.

The employer vigorously denies the allegations of gender discrimination. However, the EEOC does not agree, arguing that parents of both genders should have equal access to childcare leave and that paid leave offered only to females violates Title VII and the Equal Pay Act.

This is to be distinguished from disability leave, as clearly a mother who has given birth is going to be entitled to that time off to recover from the pregnancy and childbirth.

– Again, it remains to be seen where this case goes.  However, any company implementing parental leave policies should be mindful of this trend.

WHAT SHOULD YOU TAKE AWAY 

  • Be flexible with leave – The UPS and IAC lawsuits demonstrate again that the EEOC is not a fan of any type of inflexible leave policy. Even if, as with UPS, the policy is more generous than what is required by the FMLA or state laws, any ‘cap’ on leave is a problem.  Employers need to be flexible about how they apply the cap and be sure to include some discussion of possible accommodation before terminating an employee who cannot return or has exceeded the cap.
  • Document the accommodation process –  Your ADA policy include language that even when an employee has exhausted such leave benefits, the employer will engage in the interactive process with the employee in need of extended leave in order to determinate possible reasonable accommodation consistent with the ADA. The bottom line is that any policy which does not allow for this flexibility in its application can create significant risk of liability under the ADA.
  • Parental leave should apply to both parents – If you have a paid parental leave policy (in addition to your FMLA and disability leave policies), consider that men and women could both be the primary caregiver.  You can limit the leave to one person, if both work for you but even if you offer more time off than the FMLA requires, you should consider making this leave available to both genders.
    • Under the FMLA, you must allow any new parent up to 12 weeks of unpaid leave to take care of new baby, a new foster child, or newly adopted older child.  Either parent may take leave, but if both parents work for you, you can limit it to 12 weeks total.
    • Under the FMLA, parents don’t have to use this leave in one lump.  This is also a good practice.
    • If you decide to offer parental leave, don’t limit that leave to married couples, or heterosexual couples. All parents should be given equal access.

Finally, bad facts tend to make for bad results.  In both the UPS and IAC cases, the plaintiffs were employees facing serious illnesses who were fired after they requested short extensions of leave.  Time off is difficult to manage but employers should try to be flexible.  Consider giving at least one extension, assuming it is backed up with legitimate medical documentation.  Further, if you cannot grant an extension, document the reasons why. Last, be sure when you terminate an employee who has been on leave that there is no reasonable alternative.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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