The EEOC and FedEx Continue Battle to Define Employer Requirements under the ADA

In 2014, the Equal Employment Opportunity Commission filed a class-action disability lawsuit against the multi-billion dollar business, FedEx Ground Package System, Inc.

FedEx Ground truck in front of a parked car.
FedEx Ground is facing EEOC discrimination charges for its treatment of people who are Deaf or Hard of Hearing. photo credit: torbakhopper fedex ground illegal deliveries (this episode actually lasted over five minutes but flickr only allows 90 second uploads) via photopin (license)

Two years later, the lawsuit is still underway after a judge denied the company’s motions to dismiss or strike it.

Court documents provide a rich source of learning about how the government views a business’ obligations to be Americans with Disabilities Act compliant.

The case comes behind another FedEx case concerning an employee who was Deaf.

In 2015, the National Association of the Deaf intervened in the lawsuit. Unlike a previous EEOC v. FedEx case, this time, a national Deaf advocacy group joined.

According to the association, they intervened on behalf of “two deaf women who worked for FedEx Ground without access to qualified sign language interpreters or other reasonable accommodations.”

In 2016, FedEx’s Motions to Dismiss and to Strike were dismissed by U.S. District Judge, Mark R. Hornak.

Picture shows a screen shot of someone using sign language in an ASL video on the EEOC website.Learn more about this current case in ASL.

Overview

In a 2014 press release, the EEOC said, “FedEx Ground failed to provide needed accommodations such as American Sign Language (ASL) interpretation and closed-captioned training videos during the mandatory initial tour of the facilities and new-hire orientation for deaf and hard-of-hearing applicants. The shipping company also failed to provide such accommodations during staff, performance, and safety meetings.”

Female news broadcaster with image of Hurricane Matthew in the background.
As pictured, this news broadcast wouldn’t make any sense to the Deaf community. No interpreter for those who use ASL. No captions for those who are Hard of Hearing. The Deaf and Hard of Hearing community needs visual communication. photo credit: NASA Goddard Photo and Video NASA’s 3D view shows Hurricane Matthew’s intensity via photopin (license)

“FedEx Ground refused to provide needed equipment substitutions and modifications for deaf and hard-of-hearing package handlers, such as providing scanners that vibrate instead of beep and installing flashing safety lights on moving equipment,” according to the release.

Stop sign shows a person light in green and a person lit in red.
Just like the lights on this sign show it’s safe to cross the street, color changing lights can send visual signals to people who are Deaf or Hard of Hearing. photo credit: My Buffo Should I stay or should I go? via photopin (license)

Employees worked at facilities in Texas, Florida, Georgia, Pennsylvania, Colorado, Kansas, Illinois, Maryland, California, Connecticut, Iowa, Michigan, Minnesota, Oregon, Utah, and West Virginia.

After attempting to remedy the situation with FedEx, “The EEOC’s lawsuit arose as a result of 19 charges filed throughout the country citing discrimination against deaf and hard-of-hearing people by FedEx Ground,” according to the press release.

Failed resolution

“The agency consolidated these charges and conducted a nationwide systemic investigation of these violations. The EEOC filed its lawsuit in U.S. District Court for the District of Maryland, after first attempting to reach a pre-litigation settlement through its conciliation process.”

EEOC Philadelphia District Director Spencer H. Lewis, Jr, said in the release, “FedEx Ground failed to engage in an interactive process with deaf and hard-of-hearing package handlers and applicants to address their needs and to provide them with reasonable accommodations. That’s why we filed this lawsuit — to remedy alleged pervasive violations of the ADA on a national level.”

People sit around a room on several sofas.
Employee engagement requires effective communication. Sometimes that requires accommodations. Trust employees to know what they need. photo credit: TEDxSKE (Lebanon) TEDxSKE salon: 08.09.16 via photopin (license)

A lose/lose scenario

EEOC Regional Attorney Debra M. Lawrence said, “…FedEx Ground should have provided effective accommodations to enable people with hearing difficulties to obtain workplace information that is disseminated in meetings and in training sessions. … by failing to do so, FedEx Ground has marginalized disabled workers and hindered job performance. This is a ‘lose/lose scenario.'”

Button says Failure is always an option.
Not preparing ahead to meet the needs of employees can lead to the business and employees losing opportunity. photo credit: Howdy, I’m H. Michael Karshis Failure : @sharkthang : Quote : Prisma : Wave via photopin (license)

This case supports part of the EEOC’s Strategic Enforcement Plan’s six national priorities: eliminating barriers in recruitment and hiring.

Equal Employment Opportunity Commission v. FedEx Ground Package System, Inc.

Blue bag with money symbol on it tied with a rope.
Discrimination lawsuits can be costly and inconvenient. photo credit: dolphinsdock Money Bag in Blue via photopin (license)

According to court documents, The EEOC “seeks:

  • a permanent injunction to prevent FedEx Ground from engaging in disability discrimination;
  • an order directing FedEx Ground to implement policies, practices, and programs to provide equal employment opportunities and reasonable accommodations for aggrieved individuals;
  • back pay;
  • compensation for past and future pecuniary and non-pecuniary losses;
  • instatement of aggrieved individuals or front pay;
  • and punitive damages.”

No procedure = operating procedure

According to court documents, “The EEOC pleads that ‘FedEx has not implemented a corporate-wide procedure’ for accommodating deaf or hard-of-hearing individuals.”

When “faced with a legal duty to seek reasonable accommodations, an employer’s complete and uniform failure to do so can fairly be conceptualized as a standard operating procedure of unlawful conduct.”

What happens when the EEOC goes fishing

Man on beach in sunset gathers his large fishing net.
The judge compares the EEOC to someone who has gone fishing and already cast their net–so they can reap the benefits. photo credit: Prabhu B Doss Networking. via photopin (license)

According to court documents regarding FedEx’s attempt to dismiss or strike the case, “EEOC has provided, and at oral argument FedEx Ground acknowledged possessing, a list of 168 named individuals that are the subject of this suit. And while the EEOC generally ‘may not use discovery.. .as a fishing expedition to uncover more violations,’ here the EEOC has already cast its net.”

Previously, the EEOC had placed a form on their website information requesting leads about FedEx Ground employees who had been denied accommodations during hiring or at work. In stark contrast to FedEx Ground’s training videos, the EEOC’s video is in American Sign Language.

“If some other aggrieved individuals–those meeting the statutory criteria for the claim as pled–are added to the haul . . . sometimes permissible fishing expeditions legitimately catch fish,” the judge said.

Many fish swirl around in the ocean.
If your business policies don’t respect people with all abilities, there are likely many fish for the EEOC to catch. photo credit: forum.linvoyage.com Fish soup IMG_1172s via photopin (license)

FedEx Ground complained that defending themselves against so many was unreasonable.

“FedEx Ground will not necessarily suffer impermissible prejudice. The EEOC’s central claim is based on an alleged failure to engage in an interactive process in order to give disabled individuals a statutorily-mandated reasonable accommodation. If it turns out that FedEx Ground indeed failed to do that, all individuals who were unlawfully discriminated against could be entitled to relief…”

What FedEx Ground failed to understand about the EEOC

According to court documents, “…The EEOC has significant discretion to investigate discrimination claims and … to litigate on behalf of a potential group of aggrieved people” and can “maintain class action suits even where it does not attempt to conciliate on behalf of each member or potential member of the class)” if they have informed the company that some people have suffered certain discriminatory conditions.

FedEx Ground’s statement

In this report, FedEx Ground said, “We value our deaf and hard of hearing employees, and we strive to give them, like all our employees, every opportunity to be successful — including working with them to provide individualized and reasonable accommodations.”

“We have cooperated with the EEOC throughout their investigation and are disappointed that the EEOC was not willing to engage in legitimate, good-faith discussions to conciliate and resolve these allegations. We are confident that we have complied with the law and intend to vigorously contest the EEOC’s unfounded allegations,” they said.

When should accommodations have been provided?

Many lifejackets are restrained by cords.
Ensure that your employees swim, not sink, by making all meetings and trainings accessible to people with all abilities. photo credit: tompagenet IMG_6282 via photopin (license)

According to a 3PlayMedia report, “..FedEx Ground blatantly violated the ADA by failing to provide American Sign Language (ASL) interpreters or closed captioned training videos in the following situations:

  • Mandatory initial tour of the facilities,
  • New-hire orientation for applicants,
  • Staff meetings,
  • Performance meetings, and
  • Safety meetings.”

From the perspective of people with deafness and hearing loss

Eisenberg & Baum, LLP of New York, ASL-fluent attorneys, addressed the case. “If you are deaf or hard-of-hearing, it can sometimes be hard to get your employer to address your needs. Lack of reasonable accommodations can make your work life miserable, and make it harder for you to do your job.”

What must happen before an ADA lawsuit

“Before an ADA lawsuit can start, the employer must also have taken some ‘adverse employment action’ against the deaf or hard-of-hearing employee. This could be refusal to hire, failure to promote, firing, or discrimination in shifts, positions, or hours. It could also include harassment, if the behavior is serious enough to create a hostile work environment.”

Reasonable Accommodations can be used to complete work duties

Man looks at camera as he holds a phone handset while another person on video waits for him to continue speaking.
People who are Deaf or Hard of Hearing have been using videophones and captioned phones for many years now. photo credit: Ian Broyles i invented a video phone to the past via photopin (license)

“For example, a deaf woman may not be able to answer telephone calls. However, she may request a text telephone, voice carry-over telephone, or a captioned telephone, which would allow her to perform the essential work of responding to phone calls. This would be a reasonable accommodation under the Americans with Disabilities Act unless it was unduly burdensome on the employer.”

Positioning your business to be ADA compliant

Older man in a boat on the water pulling up a fishing net.
Liken the EEOC to the Old Man and the Sea. They are experienced and despite all challenges, they can catch big fish. photo credit: Emanuele Cardinali The Old Man and the Sea via photopin (license)

First, understand that the EEOC is a good fisherman.

According to its website, since the start of FY 2011, the commission has filed more than 200 disability discrimination lawsuits recovering $52,000,000. “The Commission secured this relief through jury verdicts, appellate court victories, court-entered consent decrees, and other litigation-related resolutions.”

Lawsuits include all “segments and sectors of the workforce” concerning a large variety of disabilities.”

Click here to review a list of EEOC cases.

How to avoid the EEOC fishing at your business

To avoid competing against the EEOC protecting the rights of your employees, you must fish better from your own pond. Like most people who fish well, prepare ahead of time.

The secret to good conflict resolution is fishing well with catch and release

Woman in boat holds a large fish she apparently just caught.
How well do you fish? Are you soliciting employee feedback regarding accommodations? photo credit: Kris Krug Antonia Wilson – Salish Sea Charters – Winter Salmon Fishing – Galiano Island via photopin (license)
  • Cast your line. Accessible hiring, training, and meetings. Have public policies that encourage complaints and management interaction.
  • Use the right bait. Avoid any practices or lack of policies that allow discrimination to take place. This includes training any supervisory personnel about supporting all abilities from the first week of hire. Build a nurturing workplace environment. The wrong kind of bait may lose your catch and the EEOC won’t use the wrong kind of bait.
  • Reel in your fish. When complaints are received, call in teams of people with similar abilities and ask them what can be done, what are potential cost-saving short cuts, and about other suggestions.
  • Let them go and multiply. Address needed changes, have follow-up dialogues, and encourage open door policies to discuss future needs. If this encourages more employees with similar needs to apply, it’s because you have strong policies that support your employees. Applicant metrics are a good standard for measurement of policy effectiveness.

    Two large fishing nets are hung in the water beneath a colorful sky.
    When you prepare ahead for success, you’ll cast out your net and gather new clients and funding sources. photo credit: Christopher Crouzet Cu Đê River, Da Nang via photopin (license)
  • Cast a new net. Reap the benefits of encouraging clients with similar abilities to support your efforts. Promote within the disability network, which has a strong word-of-mouth campaign. Enjoy the bounty!

Learn more about the EEOC

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available at its website.

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Disability Study Points to Important Factors for Employee Retention

A national British study involving major employers and employees determined two major factors related to the retention of employees with disabilities: organizational values and reasonable adjustments, or accommodations.

The research was conducted by the Business Disability Forum, which includes businesses that employ 20 percent of the United Kingdom workforce. The study involved 352 employees. It follows an earlier employees with disabilities study conducted with 145 businesses.

Woman wearing business suit and smiling.
According to the report, retaining each employee saves a company an average of the American dollar equivalent of $43,000 a year. photo credit: Happy businesswoman via photopin (license)

According to the report, retaining employees with disabilities saves money for businesses, because it’s cheaper to keep them than replace them: “…staff turnover in just 5 sectors cost UK business more than £4 billion each year and the average cost of replacing individual employees is estimated at £30,000[1]. The business case for investing in retention is a compelling one.”

Wheelchair ramp placed at bottom of stairs.
Sometimes, employers and employees have differing views on what accommodations are needed. While the ramp is an accommodation here, a wheelchair can’t roll over the stairs. photo credit: Ramp to No where via photopin (license)

One of the areas needing to be addressed were workplace accommodations. According to the study, employees with disabilities felt their employers knew their legal obligations to provide accommodations, while few employees knew where to get advice about them from within their place of work:

  • “Less than 7 in 10 employees with disabilities were ‘very’ or ‘mainly’ confident that their employer has the knowledge to manage legal obligations with respect to adjustments;” and
  • “Close to 3 in every 10 employees with disabilities indicated that they were ‘very’ or ‘mainly’ confident about where to source advice about adjustments from within their organization.”
Business people hold meeting with a man on video.
Advanced technology offers solutions for the needs of all employees. Sometimes, people don’t know the options they have to get the technology. photo credit: Skype panelist via photopin (license)

Existing programs could have provided accommodations for employees, but employees didn’t always know about the programs, according to the report. “Far fewer employees than employers report awareness of the Access to Work program which can assist with funding specific adjustments for individuals that would not reasonably be expected for all employers to fund.”

The Access to Work website says that employees can apply for grants to assist with accommodations.

In the U.S., Centers for Independent Living, resource centers for people with any disability, and vocational rehabilitation programs assist with accommodations for people with disabilities:

Human with a question mark
The study revealed that line managers need resources and support with employees with a disability. photo credit: question mark via photopin (license)

According to the report, organizational barrier to employee with disability retention involves what they refer to as “line managers”  most directly. Line managers need skill and confidence in addressing disability-related needs, and in some cases, employees said that line managers had negative attitudes toward disability.

Man with a cochlear implant
Does your company website include profiles of individuals with disabilities? photo credit: Cochlear Implant via photopin (license)

The report provides suggestions for employers, including:

  • giving visibility to disability, such as having employee testimonials on recruitment webpages and staff profiles, and having staff networks for employees with disabilities;
  • building the skills and confidence of line managers by providing “centrally stored, up-to-date advice and guidance on all aspects of how disability affects employers on the intranet” and providing support them when hiring new team members with accommodations needs;
  • having a “stand-alone disability-related absence policy and clear guidelines for line managers about how disability-related absence is managed;”
  • having a workplace adjustment process that involves employees in the accommodations process. Line managers need training and guidance with this, according to the report; and
  • “reviewing performance appraisal systems for unconscious biases that limit the progress of employees with disabilities.”

 

 

 

 

 

 

 

[1] See: HR REVIEW (Feb 2014)

The report, State of the Nation: Retaining and developing employees with disabilities – Stage 2,