EEOC Increases Harassment and ADA Litigation

By Lehr Middlebrooks Vreeland & Thompson, P.C.

November 1, 2019

September 30 concluded Fiscal Year 2019 for the federal government. According to our monthly and year to date analysis of EEOC lawsuits, the EEOC filed 112 lawsuits during FY 2019, down from 154 during FY 2018. Harassment lawsuits increased to 31.1% of all lawsuits filed during FY 2019, compared to 22.7% for FY 2018. This includes sexual, racial, or other forms of workplace harassment.
 
The EEOC continued to focus on Americans with Disabilities Act claims, with 34.8% of all lawsuits filed alleging ADA violations. This is off slightly from FY 2018, when 40% of all EEOC lawsuits alleged ADA violations. Overwhelmingly, the ADA lawsuits are based upon an allegation that the employer failed to engage in an interactive process to attempt accommodation or that the employer had an automatic termination policy based upon the expiration of a fixed-duration leave of absence, such as FMLA.  
 
Employers should remember two key elements that determine whether potential ADA litigation may occur. First, be sure to engage in a dialogue with the applicant or employee to discuss reasonable accommodation options and approaches. In essence, form over substance matters in this situation. If an employer makes a good-faith effort to accommodate but cannot do so, there is not an ADA violation.
 
Second, too often employers believe that when an employee exhausts a leave of absence such as under FMLA or even a more generous program established by the employer, the employee may be terminated if she or he is unable to return to work. This is a violation of the ADA. Similarly, some employers still maintain 100%-healed policies for employees returning from some or all extended leaves. That is, the employer has a policy that the employee must be 100% healed from his or her illness or injury before returning to work. Both of these absolute rules ignore the obligation to engage in the interactive process. What is required when leave expires is an dialogue with the employee about what tasks, if any, the employee can perform at that time, and what the employee might need (additional leave or other accommodation) to be in a position where he or she could perform the essential functions of his or her position, or another open position which he or she qualified for. The legal standards for placing an employee in an alternate position in this situation are too complex to cover here beyond saying that employers should consult with counsel in this uncommon situation. Where the employee is unable to perform his or her essential functions and believes extended leave is necessary, the employer does not have to accommodate a request for indefinite leave (ex: leave "until I get better"). Requests for leave for a fixed period must be evaluated for reasonableness and potential undue hardship to the employer.
    
Where a request for extended leave is indefinite, otherwise unreasonable, or imposes an undue hardship on the employer, one approach that we recommend is to tell the employee that the position will be filled, but if and when the employee is interested in returning to work, the employee should contact the company and it will evaluate at that time if a position is available. This is a "soft landing" that may reduce the risk of an ADA charge or lawsuit.
 
Other trends of note: regionally, the EEOC continues to focus on southern states. 36.6% of all lawsuits filed during FY 2019 were filed in southern states, compared to 31.8% for FY 2018. There are several reasons for this focus. First, some southern states do not have a state version of the EEOC, thus the EEOC believes that non-discrimination in those states is not emphasized to the extent it is in states where there is a state version of the agency. Furthermore, just based upon demographics, there is a much higher percentage of African Americans in southern states than in virtually every other state in the country, which the EEOC believes results in more discrimination claims, and, therefore, the need for more litigation.  
 
Only 7 of 112 lawsuits alleged age discrimination, which is the same number that alleged equal pay violations. Age discrimination litigation tends to vary based on how robust the economy is progressing. If the economy slows down, expect age discrimination cases to increase. Although Equal Pay Act cases comprised a minimum number of EEOC's total litigation portfolio, often Equal Pay Act cases are filed as discrimination under Title VII (sex, race, etc.) rather than under the Equal Pay Act, which is based upon gender only and has a different standard for proof than Title VII.