Multi-South Management Services to Pay $42,500 to Settle EEOC Pregnancy Discrimination and Disability Lawsuit
Multi-South Management Services, LLC, a Memphis-based property management company, has agreed to pay $42,500 and furnish significant equitable relief to settle an EEOC lawsuit alleging it failed to accommodate and then fired a pregnant employee with medical complications, the federal agency announced today.
According to the EEOC’s suit, the employee, the community director of a large apartment complex in Montgomery, Alabama, began having medical complications that made her high-risk for preterm labor. In January 2018, the same day Multi-South officially took over management of the complex, it fired her without warning or explanation. The employee, who had been employed in her position for over four years with no record of performance problems, was the only employee at the complex not retained by Multi-South. She was abruptly fired shortly after offering Multi-South’s management official a doctor’s note detailing her pregnancy-related limitations.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, as well as the Americans with Disabilities Act (ADA). The EEOC filed suit in the U.S. District Court for the Middle District of Alabama (Equal Employment Opportunity Commission v. Multi-South Management Services, LLC, Civil Action No. 2:19-cv-00740-RAH-WC) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC sought back pay for the employee as well as compensatory damages, punitive damages, and injunctive relief.
In addition to providing $42,500 in monetary relief, the thirty-month consent decree resolving the case prohibits Multi-South from discriminating against any applicant or employee due to sex (pregnancy) or disability in the future. Multi-South must also post a written notice to employees of their EEO rights, provide at least two trainings to all employees, and develop and communicate to all employees company policies designed to ensure a discrimination-free workplace.
“Employers must be aware of the intersection between the ADA and Title VII’s pregnancy discrimination prohibitions,” said Bradley Anderson, the EEOC’s district director for the Birmingham District Office. “This resolution should prompt all employers to review their anti-discrimination and reasonable accommodation policies and practices to make sure they comply with both laws.”
“Employers should understand that pregnancy-related disabilities are covered by the ADA,” said EEOC Birmingham regional attorney Marsha Rucker. “An employer has a duty to reasonably accommodate an employee with pregnancy-related medical restrictions, and an employer must not fire an employee because of her pregnancy-related disability.”
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Online Accommodations for Disabled Students This Fall
Rosemary Garabedian, director of the Student Access Office at Adelphi, notes that the challenges of online learning will vary for students with disabilities, depending on their needs. For example, a student with mobility issues may find online classes easier while a peer with an attention deficit disorder may face more challenges.
In either case, her office would work with students case by case to provide accommodations. And the Student Access Office, which has different names depending on the college, is where it all starts.
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How far can employers go with COVID-19 testing?
Generally speaking, the Americans with Disabilities Act (ADA) prohibits mandatory medical tests of employees except for when the testing is “job related and consistent with business necessity.”
Regarding the COVID-19 pandemic, the EEOC says that employers can administer viral tests to employees before they enter the workplace, so as to determine whether they have COVID-19 — as an employee with the virus “will pose a direct threat to the health of others.” (Note that a viral test shows whether the individual currently has COVID-19.)
The ability to conduct viral testing for COVID-19 isn’t limited to employers covered by the ADA. “For all employers, regardless of size, viral testing for COVID-19 is permissible, provided it is job related,” said Molly DiBianca, employment attorney at Clark Hill PLC.
She added, “It would not be job related to require viral testing for employees who are working remotely and who have no in-person contact with coworkers, clients, or customers. However, if an employee will or may have in-person contact, viral testing is permissible provided it is done correctly.”
COVID-19 and the Workplace: Getting Comfortable With the Uncomfortable
Employers face challenges as they attempt to comply with new and frequently changing federal, state and local laws, regulations and guidance related to COVID-19, all of which are likely to continue evolving even after the development and availability of a vaccine and/or the enactment of liability shield legislation.
The COVID-19 pandemic has caused employers to get comfortable with the uncomfortable, and enter various realms previously considered taboo.
For example, prior to COVID-19, employers were drilled repeatedly not to ask employees health-related questions. However, employers today are not only encouraged but, in many circumstances, required to ask certain medical questions in order to meet their obligations to provide a safe workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. 654(a)(1).
Similarly, just a few months ago, the most basic rule of thumb was that employees should not be treated differently in the workplace based on their membership in a protected classification. Yet now it has become apparent that certain vulnerable populations—such as older adults, those with certain underlying medical conditions, and those who are pregnant—may face heightened risks, and employers understandably are motivated to consider how they can protect the health and safety of those populations.
These tensions, among others, are producing challenges for employers as they attempt to comply with new and frequently changing federal, state and local laws, regulations and guidance related to COVID-19, all of which are likely to continue evolving even after the development and availability of a vaccine and/or the enactment of liability shield legislation.
Disability-Related Inquiries/Examinations
The Americans with Disabilities Act (ADA) generally limits an employer’s ability to make disability-related inquiries or require employees or job applicants to undergo medical examinations. After employment begins, for example, an employer cannot ask an employee disability-related questions or require an employee to undergo a medical examination unless it can be shown that the examination or inquiry is “job-related and consistent with business necessity.” 42 U.S.C. 12112(d)(4). An examination of an employee may meet this standard when an employer reasonably believes, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition. Given these restrictions, employers had, up until recently, become increasingly reluctant to request medical information from employees.
Much of that has changed in light of the ongoing COVID-19 pandemic. Now, in order to ensure they are maintaining a safe workplace, employers are often required to obtain certain medical information on a regular—sometimes daily—basis before they can permit an employee to physically enter the office.
Guidance from the Equal Employment Opportunity Commission (EEOC) has sought to help employers navigate this new minefield. The EEOC has declared the COVID-19 pandemic a “direct threat,” meaning “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of the disease, present in the workplace at the current time.” As such, the EEOC has advised, during the current pandemic, employers are permitted to measure employees’ body temperature and may administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Subject to certain limitations, employers may also ask employees if they are experiencing symptoms of COVID-19, as such information is critical to protect others in the workplace.
That is not to say, however, that employers who take such measures can be confident in a COVID-free workplace. While the EEOC has advised employers to consult the US Centers for Disease Control (CDC), public health authorities and “other reputable medical sources for guidance on emerging symptoms associated with the disease,” much of the CDC’s list (which presently includes eleven symptoms) is indistinguishable from symptoms associated with the flu, common cold, or even seasonal allergies. To further complicate matters, a significant number of infected employees may be asymptomatic. Given the novelty of the current circumstances and the fluid nature of the virus, even the most well-intentioned employer may be susceptible to claims from employees who believe that they have been singled out and/or contracted COVID-19 at work.
Anti-Discrimination
Numerous federal and state laws prohibit employers from discriminating against employees or applicants on the basis of a variety of protected characteristics, including race, national origin, gender, pregnancy, disability and age. These laws include the ADA, Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (ADEA), and the New Jersey Law Against Discrimination (NJLAD). Until the pandemic, the baseline was fairly straightforward: treat all employees the same, regardless of their membership in a protected class. Amid the COVID-19 pandemic, however, employers have become increasingly concerned about their ability to protect the health of their employees (particularly those in vulnerable populations) without running afoul of anti-discrimination laws.
While COVID-19 has certainly impacted people of all ages, the CDC has noted that older adults are at increased risk for severe illness related to the virus. According to the CDC, “8 out of 10 COVID-19-related deaths reported in the United States have been among adults aged 65 years and older.” The CDC has also identified “pregnant people” as well as individuals with certain underlying medical conditions—such as cancer, chronic kidney disease and type 2 diabetes—as being at an increased risk for severe illness due to COVID-19.
Notwithstanding the increased risk to certain individuals, the EEOC has taken the position that, even if an employer is concerned that an employee’s health will be jeopardized by returning to the workplace, “the ADA does not allow the employer to exclude the employee—or take any other adverse action—solely because the employee has a disability that the CDC identifies as potentially placing [the employee] at ‘higher risk for severe illness’” due to COVID-19. According to the EEOC, such action is not allowed under the ADA unless the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation.
Moreover, the EEOC has stated that employers may not “involuntarily” exclude employees from the workplace due to pregnancy or based on their being aged 65 or older, even if the employer is acting for benevolent reasons such as protecting such individuals due to their higher risk for severe illness from COVID-19. Instead, federal guidance encourages employers to “explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.”
At the same time, employers must continue to satisfy their obligation of providing a safe workplace for all employees, and are encouraged to remain particularly mindful of employees in vulnerable populations, and employees who live with others who may likewise be vulnerable. In this regard, the Occupational Safety and Health Administration has advised employers to “consider extending special accommodations to workers with household members at higher risk of severe illness.” Needless to say, navigating these obligations will prove challenging for even the most diligent and well-meaning employers.
Beyond the Curve
Two potential long-term solutions frequently discussed in connection with the COVID-19 pandemic include vaccines and liability shield legislation. Neither of these potential solutions, however, is likely to immediately eliminate the tension between an employer’s conflicting obligations under the various laws discussed above.
Under the EEOC’s current pandemic guidance, even after a COVID-19 vaccine is developed, employers will not likely be permitted to mandate all of their employees to take the vaccine. Rather, they would need to consider accommodations for employees with a disability or sincere religious belief, practice or observance.
As for liability shield legislation, most iterations currently being proposed at the federal and state level would protect employers acting in good faith to comply with applicable public health guidelines from certain lawsuits. However, these bills (such as the federal “SAFE TO WORK Act” introduced by Republican senators on July 27, 2020) typically also provide that they shall not be construed to affect the applicability of any law that creates a cause of action for intentional discrimination.
Thus, while employers wait to see what, if any, relief will be provided by vaccines and/or liability shield legislation in the future, employers are strongly urged to continue to monitor developing standards and guidance, and consider proactive steps to mitigate potential exposure, including reviewing and fine-tuning certain policies, training materials, and compliance and investigation procedures, as well as reminding employees and supervisors of anti-discrimination and anti-retaliation obligations.
Even as we move beyond the COVID-19 curve, it is likely that the pandemic will have longer term impacts on the need for employers to acquire and make use of information (including health data) about their employees to protect health and safety of others. The pandemic may also result in the silver lining of greater employer investment in the health and well-being of employees as a way to build workforce resilience.