The Legal Intelligencer
(by Molly E. Meacham and Sean R. Keegan)
Over the past 20 years, the Equal Employment Opportunity Commission (EEOC) has annually received anywhere between 75,000 and 100,000 charges of discrimination (charges). In Fiscal Year 2016, the EEOC received 91,503 charges, responded to more than 585,000 calls and received more than 160,000 inquiries in field offices. In that same time period, EEOC legal staff filed 86 lawsuits alleging discrimination–less than one-tenth of 1 percent of the total charges received. Those lawsuits included 55 individual suits and 31 suits involving multiple individuals or discriminatory policies. Given the volume of demand for its assistance and the fractional number of lawsuits it pursues, the EEOC issues a multi-year strategic enforcement plan to maximize its use of resources and provide direction to its staff.
In October 2016, the EEOC released its strategic enforcement plan for Fiscal Years 2017-2021, which followed the conclusion of its strategic enforcement plan for Fiscal Years 2012-2016, see U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan, Fiscal Years 2017-2021, available at https://www.eeoc.gov/eeoc/plan/sep-2017.cfm. Both plans list “eliminating barriers in recruitment and hiring” as the first national substantive priority. The 2017-2021 plan continues the EEOC’s focus on discriminatory hiring practices and pledges to “focus on class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.” The 2017-2021 plan names “the growth of the temporary workforce, the increasing use of data-driven selection devices, and the lack of diversity in certain industries and workplaces” as “areas of particular concern,” and notes that this priority “typically involved systemic cases” but may also be included “if it raises a policy, practice or pattern of discrimination.” As the EEOC embarks on its 2017-2021 plan, it is also significantly increasing the number of suits it filed in 2016. In Fiscal Year 2017 the EEOC filed approximately 190 lawsuits, more than 80 of which were filed in the last month of the fiscal year (September 2017). By nearly doubling its lawsuits from the prior year, the EEOC may be signaling a return to its levels of litigation from the early 2000s, when the EEOC typically filed between 200 and 400 lawsuits per year.
The EEOC has recently filed several lawsuits focused on the discriminatory hiring practices prioritized by its strategic enforcement plan, including in Pennsylvania. On Sept. 27, the EEOC filed a discriminatory hiring practices claim against Norfolk Southern Corp. and Norfolk Southern Railway Company (Norfolk Southern) in the U.S. District Court for the Western District of Pennsylvania. EEOC v. Norfolk Southern, No. 17-01251 (W.D. Pa. filed Sept. 27, 2017). The EEOC alleges Norfolk Southern violated the Americans with Disabilities Act of 1990 (ADA) and the Civil Rights Act of 1991 when it failed to hire job applicants or medically disqualified employees from further employment because of their disabilities. According to the EEOC, Norfolk Southern “subjected a class of individuals to unlawful discrimination on the basis of their actual disabilities, records of disability, or because they were regarded as disabled; denied reasonable accommodations to individuals with disabilities, engaged in unlawful disability-related inquiries/examinations, and used qualification standards that screened out or tended to screen out individuals with disabilities.” Norfolk Southern concerns one of the specific discriminatory hiring practices the EEOC expressly intends to target in the near future, namely discriminatory medical policies that apply to a class of job applicants.
In Norfolk Southern, the EEOC attacks Norfolk Southern’s hiring practices in several ways. First, it alleges that a job applicant receiving chemotherapy treatment for lymphoma was denied a conductor position due to Norfolk Southern’s policy of barring job applicants for certain positions who are receiving certain medical treatments, until they have been treatment-free for a particular period of time. According to the EEOC, Norfolk Southern improperly failed to consider how the chemotherapy actually affected the applicant’s ability to safely perform the essential functions of the conductor job or in the alternative, failed to provide reasonable accommodation in the form of an exemption from its blanket policy. Second, the EEOC extends the claim to a class of unidentified job applicants who were allegedly similarly denied employment because they were receiving chemotherapy treatment for cancer. The EEOC brings similar individual and class claims concerning Norfolk’s Southern’s hiring practices of job applicants with diabetes or related elevated glucose levels, arthritis, nonparalytic orthopedic impairments, cardiopulmonary or cardiovascular impairments, and post-traumatic stress disorder.
The EEOC also attacks Norfolk Southern’s policy regarding hiring applicants receiving drug addiction treatment, alleging that Norfolk Southern improperly applied medical standards that barred job applicants and employees from working certain positions if they were taking prescribed medications for drug addiction treatment. Norfolk Southern’s policy barred applicants if at the time of their medical evaluation by Norfolk Southern, it had been less than one year since they last took such medication. Again, the EEOC alleges this was done regardless of the actual effect of such medication or the time period being off such medications had on the individual job applicants’ or employees’ ability to safely perform the essential functions of the jobs at issue. Employers in the commonwealth who have not already examined their policies and practices relating to applicants and employees in drug treatment may want to address these issues pre-emptively, as ADA issues relating to drug addiction and treatment can be particularly complex. The Pennsylvania Department of Health describes the “prescription opioid and heroin overdose epidemic” as “the worst public health crisis in Pennsylvania,” and such a widespread issue is likely to appear in the workforce in proportion to its impact on the general population.
Outside of Pennsylvania, the EEOC also filed a suit on Sept. 25, against Dolgencorp, which conducts business as Dollar General Stores, Inc. (Dollar General), claiming Dollar General violated the ADA, the Genetic Information Non-Discrimination Act of 2008, and the Civil Rights Act of 1991 by rescinding job offers to applicants whose post-offer medical examinations revealed they had disabilities, as in EEOC v. Dolgencorp, No. 17-01649 (N.D. Al. filed Sept. 25). The suit, filed in the U.S. District Court for the Northern District of Alabama, alleges Dollar General discriminated against a job applicant and a class of applicants with vision difficulties when it failed to hire them for warehouse positions. After receiving a job offer, the individual applicant’s offer was rescinded when it was revealed that the applicant had monocular vision. Dollar General disqualified the applicant from the job because its standard required its applicants have at least 20/50 vision in both eyes. The EEOC maintains that Dollar General’s refusal to hire the applicant, and others with vision difficulties, constituted discrimination on the basis of disability since Dollar General’s qualification standards and selection criteria operated as blanket policies that went beyond the essential job functions and unlawfully screened out qualified individuals.
Although the individual job applicant’s medical issue was vision difficulties, in Dolgencorp the EEOC expanded the lawsuit to target some of Dollar General’s other hiring policies related to medical issues and examinations. For example, the EEOC alleges Dollar General unlawfully screened out people whose blood pressure exceeded 160/100. The EEOC charges that this and other standards screened out applicants with a variety of conditions even when those impairments would not prevent the applicant from safely performing the job. In addition, the EEOC also alleges that during the medical examinations, applicants were unlawfully asked to provide detailed information about their family medical history, including answering questions about family incidences of cancer, heart disease and diabetes.
Both Norfolk Southern and Dolgencorp serve as examples of how a complaint to the EEOC that may begin with one individual can develop into a detailed examination of the entirety of an employer’s hiring policies, practices, and decisions. The EEOC’s investigation may expand to encompass policies and hiring decisions unrelated to the original individual’s particular circumstances, leaving an employer to defend multiple employment policies and decisions. Based on the focus of the EEOC’s current strategic enforcement plan and the recent litigation the EEOC has initiated both here in Pennsylvania and in other parts of the country, employers should be mindful of their own hiring policies and practices. In particular, employers should examine any policies or practices that relate to medical issues, physical qualifications, reasonable accommodation, medical examinations or questionnaires, and employees or applicants undergoing treatment for drug addiction. The related hiring policies and actions that are permissible under the ADA are limited and may depend upon an employer’s industry and the specific duties of the job in question. An employer can reduce the potential that it will be the future focus of an EEOC lawsuit or investigation regarding hiring policies, practices or decisions by pre-emptively identifying and mitigating areas of concern, in conjunction with providing related training to all individuals with hiring authority.
*Reprinted with permission from the 11/9/17 issue of The Legal Intelligencer. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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