The EEOC's Aggressive Stance on Disability Discrimination Continues

Author: Melissa Burdorf, XpertHR Legal Editor

Dillard's Inc., a large national retail chain, has agreed to pay $2 million to resolve a class action disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC). This settlement is further evidence that the EEOC will continue to go after employers if their policies and practices fail to adhere to the mandates of the Americans with Disabilities Act (ADA).

As part of its complaint, the EEOC claimed that the national retail chain violated the ADA by:

  • Having an attendance policy that, without exception, required all employees to provide a doctor's note disclosing the exact nature of their medical condition in order for such absences to get approved, and terminating employees if they refused to give Dillard's more specific health-related information; and
  • Automatically terminating employees for taking sick leave beyond the maximum amount allowed under company policy - without considering the ADA.

The ADA does not prohibit an employer from asking why an employee is requesting sick leave. Therefore, an employer may ask an employee to justify his or her use of sick leave by providing a doctor's note or other explanation. However, an employer cannot use an employee's sick leave request as a justification for far-ranging disability-related inquiries - questions likely to elicit information about a disability. Any disability-related inquiry must be job-related and consistent with business necessity.

In addition, the ADA requires that an employer provide a reasonable accommodation that will enable a qualified individual with a disability to perform the essential functions of his or her job. The EEOC has repeatedly challenged employers' policies and practices that do not incorporate an interactive process to assess whether additional, definite leave may be a reasonable accommodation under the ADA.

In addition to paying the $2 million dollars to all identified victims Dillard's must also:

  • Hire a consultant with ADA experience to review and revise any Dillard policy, as needed;
  • Post documentation related to the EEOC settlement;
  • Implement effective ADA training for supervisors and staff with an emphasis on medical inquiries and maximum leave policies; and
  • Develop a centralized tracking system for employee disability discrimination complaints.

Dillard's must also create a fund for currently unidentified victims who suffered similar discrimination and worked at a Dillard's store (other than El Centro, CA) between August 16, 2006, and August 15, 2009. They must also have a claims process for currently identified victims who believe they were unlawfully terminated after May 28, 2008, for taking too much leave. This fund will likely result in Dillard's paying more than $2 million to settle this matter.

Because the EEOC is continuing to be aggressive on ADA-related claims, employers should be careful when making inquiries into an employee's health situation. While employers may have a reasonable interest in curbing excessive absenteeism and abuse of attendance policies, they need to be careful not to violate the ADA. HR and supervisors should tread lightly here and limit medical-related inquiries to an employee's ability to perform the job.

Employers should also review all of their attendance policies to ensure compliance with the ADA. For example, an employer's attendance policy can require their employees to submit a doctor's note specifying the date on which the employee was seen, that the absence was medically necessary, and the date on which the employee can return to work. The danger is in asking for the details of the medical condition. In addition, employers should ensure that such policies do not have any inflexible maximum leave provisions.

Additional Resources

How to Handle an Employee's Request for Leave as an Accommodation

How to Handle an Employee Returning from FMLA Leave Who May Need an ADA Accommodation

How to Prevent Disability Discrimination Claims

Tackle Attendance Problems

How to Handle the Interaction of the FMLA, ADA and Workers' Compensation Laws

Discrimination Policy

What Supervisors Need to Know About the ADA - Supervisor Briefing

Discrimination - Supervisor Briefing

How to Prevent Leave Discrimination