Rise in charges has employers on ‘high alert’

From Lawyers USA, a sister
publication of NEIH

When the going gets tough, the employment discrimination enforcement actions get going.
And last year seems to be no different, with a number of factors creating a perfect storm of sorts for discrimination claims, including a rise in job losses, the passage of new age and disability bias laws and a tougher enforcement policy spearheaded by the Obama administration’s Equal Employment Opportunity Commission.

Hard times, tough action

A poor economy and a rise in discrimination claims tend to go hand in hand, as reductions-in-force lead to more employees claiming bias in the job elimination process.
“There has certainly been an increase in unemployment, and that can coincide with an increase in the number of wrongful-termination or discrimination suits,” said Katie Biggs Wright, counsel in the Louisville, Ky., office of Frost, Brown, Todd, where she represents employers in labor and employment matters.

Another reason for the surge is a change in EEOC enforcement policy. The 2009 budget reflected this: The budget bill passed by Congress and signed by President Barack Obama boosted the EEOC’s budget by $15 million, about a 4 percent increase. And Obama has proposed an additional $40 increase to the commission’s budget for fiscal 2010, which would bring the total to $367 million.

Last September alone the EEOC filed 90 lawsuits, half of which came in the last week of the month, according to Wright’s office.

“It’s just a new dawn in the age of enforcement … with the Obama administration representing the opposing side of the spectrum from the Bush administration,” said William E. Hannum, managing partner in the Andover, Mass., office of Schwartz Hannum, which represents employers.

“We went from gross under-enforcement to gross over-enforcement, and I’m not sure either is fair.”

ADA Amendments Act big factor

Although the passage of the Lilly Ledbetter Fair Pay Act may have led to more bias claims, the biggest factor appears to be the new Americans with Disabilities Act Amendments Act.
Before the act, disability discrimination claims were tough to win, and many plaintiffs’ attorneys shied away from them unless a case was particularly strong. But the new act increased the number of people who may be considered disabled.

Now, in disability cases the main inquiry is no longer whether a plaintiff is disabled, but what the employer must do to accommodate him or her.

And since new regulations under the act have yet to be finalized, employers, workers and courts are still fleshing out the requirements of the law on a case-by-case basis, which can cause problems.

“It is frustrating for employers,” said Rae T. Vann, general counsel of the Equal Employment Advisory Council in Washington, D.C., a pro-employer group. “I imagine it is just as frustrating for employees, because everyone is navigating this new law without a substantial body of caselaw.”

Some rulings that have come down are creating confusion.

“I have a case where I am being told [that] half of what an employee did in a previous job is not an essential function of the job,” Hannum said. “Employers are having to rewrite job descriptions. I think there are going to be a lot more fights over [this], and you are going to see agencies and courts micromanaging employers’ decisions of what is essential or not.”
Hannum said he has seen particular problems when employers have strict policies requiring employees to return to work within a certain number of days after taking leave.

“Someone might get a three-month personal leave or medical leave, and the company’s policy is that if you can’t come back to work after that date, the job is gone,” Hannum said. “The companies that have hard deadlines built into their policies are getting targeted [for discrimination claims]. One of our attorneys … is aware of half a dozen or more actions like that that the EEOC pursued in September alone.”

In those cases, a little flexibility on the employer’s part can go a long way toward avoiding legal problems.

“If an employee calls up the employer and says, ‘I’ll be ready in another three days or in a week,’ you really can’t argue that it would be unreasonable to give that person another few days,” Hannum said.

And unlike in the early 1990s, when a spike in disability claims after the passage of the ADA eventually dropped off, the increase in disability claims will likely be permanent, since the new law broadens the number of people covered.

“I don’t know if you will ever see a dip in the number of claims,” said Louis P. Britt, a partner at the Memphis, Tenn., office of Ford & Harrison, who represents employers. “I do think eventually the number of claims will level off. But I don’t think it will drop. I think you are going to see more litigation down the road on a consistent basis.”

What should employers do?

The changes mean employers have to be more vigilant than ever in their efforts to head off these claims, and that starts with a reevaluation of their policies — keeping in mind that disability and discrimination claims can piggyback on other issues.

“So many times it may arise out of a FMLA request, or you may have workman’s comp claims involved,” Britt said. “I think employers are aware of the ADA, but they may not really know the impact of the Amendments Act. There needs to be some education for employers.”
Employers should remember that resolving potential employment disputes early can be particularly useful, given the unsettled state of the law.

“I think employers now more than ever need to work to resolve workplace issues that, if left unresolved, could lead not only to an EEOC charge being filed, but could also lead to potential systematic investigations and enforcement actions by the EEOC,” Vann said. “The EEOC has been focused for some time on weeding out patterns and practice discrimination, and [when more] of these cases bubble up it creates more opportunity for a systemic probe.”
Employers should also be careful in how they handle the ADA’s interactive process — the dialogue between the employer and employee to determine what reasonable accommodations are necessary, Hannum said.

“This can mean the difference of whether employees continue to work or they leave,” Hannum said. “You should try to reach an accommodation that works for everybody.”

And employers shouldn’t assume that policies that worked well under the old ADA will still work.

“Just because you write down that something is an essential function doesn’t mean the court, or the EEOC or state agency will see it that way,” he cautioned. “You have to be able to defend that a function is an essential part of a job duty.”