Tag Archives: EEOC

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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FedEx and EEOC’s Battle to Define an Employer’s Responsibilities under the ADA

In 2001, a FedEx Corporation employee filed a complaint against his employer with the federal Equal Employment Opportunity Commission, or the EEOC.

This began a long-term legal battle between FedEx and the EEOC that extended through two major lawsuits.

This post addresses the first lawsuit.

Picture shows a screen shot of someone using sign language in an ASL video on the EEOC website.Click to learn more about the second lawsuit in ASL here.

Employers can learn much from the story of how the situation escalated, and how higher courts determined employer responsibility.

The employee had minimal work-related accommodations needs, but several factors contributed to a situation where courts determined that FedEx had to pay $8,000 in compensatory damages and $100,000 in punitive damages. The maximum penalty was $300,000.

If FedEx had avoided this scenario with best practices, the company could have saved $108,000 for damages, additional lawyer fees, and seven years in courts.

Shows picture of a judge's gavel on top of a file folder with many papers.
Litigation is an expensive and time-consuming way of resolving employee conflicts that can be addressed more effectively internally. photo credit: weiss_paarz_photos Gavel – Courtroom and Gavel via photopin (license)

Worse, the lawsuit raised awareness with their employees, which potentially led to a second, larger lawsuit years later.

Perhaps FedEx was lucky. The information they didn’t provide their employee could have killed him.

Equal Employment Opportunity Commission, Plaintiff-Appellee v. Federal Express Corporation, d/b/a FedEX Express, Defendant-Appellant, decided January 2008.

Background

The first lawsuit was brought by the EEOC after Ronald Lockhart of College Park, Md. filed a complaint.

Lockhart was a full-time college student and part-time package handler at FedEx between 2000-2003. He worked at FedEx’s Baltimore-Washington International Airport facility during the night shift.

Picture shows two FedEx planes on an airport runway.
FedEx is one of several of the nation’s mail carriers. photo credit: fordsbasement Federal Express Planes at LAX via photopin (license)

According to court documents, Lockhart had been “profoundly deaf since his birth in 1959. He is unable to either speak or read lips, but is fluent in American Sign Language (“ASL”), which is his primary language.”

While Lockhart didn’t need accommodations for package handling, he needed them for meetings.

“Lockhart made repeated requests for an ASL interpreter and other accommodations, so that he could understand what occurred at employee meetings and training sessions,” according to court documents.

Title I of the ADA

According to court documents, “Title I of the ADA prohibits discriminatory acts and omissions that abrogate the employment rights of disabled people, including the failure of an employer to make reasonable accommodations for an applicant or an employee’s disability. (defining ‘discriminate’ as, inter alia, the failure to make ‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]’).”

Closed doors to communication access

Lockhart’s direct supervisors made efforts to acquire accommodations, but ultimately didn’t provide them.

Problems for Lockhart began at the door. A FedEx supervisor denied Lockhart an interpreter for his job interview, and according to court documents, Lockhart had to bring a friend to interpret for him.

Lockhart supplied his own interpreter because he “really wanted the job,” and because he “felt as if [he] had no other choice.”

When the Senior Operations Manager for FedEx at the BWI Ramp, Pat Hanratty, learned that one of his managers had hired someone requiring an interpreter, he “ask[ed Thompson, Lockhart’s initial direct supervisor] why” he had done so.

As Senior Operations Manager, Hanratty was responsible for ensuring that personnel matters at the FedEx-BWI Ramp were ADA compliant.

Hanratty was fluent in ADA matters. He:

  • knew FedEx’s ADA compliance policy,
  • had received ADA training from FedEx, and
  • was familiar with the ADA’s requirement that employers make reasonable accommodations for their disabled employees.

Failure to implement ADA policy

According to court documents, Hanratty failed to ensure that:

  • FedEx’s ADA compliance policy was implemented, and
  • Lockhart’s supervisor received ADA training from FedEx, even though he’d requested it.

Since Lockhart’s supervisor didn’t understand how to accommodate someone with deafness, when Lockhart requested accommodations, he didn’t receive them.

Lockhart had requested:

  • complete notes from the daily briefings, and
  • ASL translation and closed-captioning assistance at monthly meetings.

What Lockhart received:

  • no ASL interpretation or closed-captioning for two years,
  • no information about meeting times and dates,
  • some closed-captioned videos, and
  • no ASL translations of live presentations.

    Captions on bottom of TV screen showing news about Oprah and Australia.
    Watching TV without sound or captions is a quick way to teach why captions are important to those with hearing loss or deafness. photo credit: NICOLE CHETTLE via photopin (license)

Attempting accommodations

Victor Cofield, a FedEx-BWI Ramp Operations Manager, was Lockhart’s direct supervisor for most of the period addressed in the lawsuit.

Cofield made efforts to locate accommodations, such as:

  • asking Hanratty for ADA training,
  • requesting more information from other senior personnel,
  • communicating with Lockhart via note writing, and
  • partially attempting to locate a qualified interpreter.

The provided accommodations didn’t respect Lockhart’s abilities, and though Cofield tried to assist Lockhart, he failed on the follow-through.

Picture of a wastebasket with balls of paper trash inside.
If Lockhart didn’t bring his own notebook, his supervisor would sometimes get paper from the trash to write notes on with Lockhart. photo credit: Jeff Hester 101/365 Trashed via photopin (license)

For example, Lockhart took a notepad to communicate with his supervisor, Cofield, but if he forgot to bring one, Cofield said, “We would find a piece of paper somewhere, … out of a trash can, off the floor or something, and write [notes].”

Pulling paper out of the trash to communicate with someone sends the wrong message.

Sometimes, Cofield used an uncertified interpreter that was another FedEx employee to interpret.

Picture of man with hands in the air out to the side, as if gesturing, I don't know.
What Lockhart’s supervisor failed to understand was that an ASL student may not be qualified to interpret, especially if they know little more than the alphabet. photo credit: danielfoster437 Disagreement via photopin (license)

“Lockhart had difficulty comprehending this employee’s ASL translations because, although the employee could use the ASL alphabet to spell English words,” according to court documents, “he was not fluent in the ASL language.”

Picture of the Twin Towers skyscrapers smoking on 9/11.
When the surprise attacks of 9/11 occurred, Lockhart was concerned about safety, as many Americans were. photo credit: RTreadway 37136665303 via photopin (license)

Post-9/11 Training Exclusion

After the terrorist attacks of Sept. 11, 2001, when several planes were targeted to crash into strategic sites, including one that had been headed toward nearby Washington, D.C., security measures increased nationwide.

A week later, according to Wikipedia, “Letters containing anthrax spores were mailed to several news media offices and two Democratic U.S. Senators, killing five people and infecting 17 others.”

FedEx managers at BWI held security issues meetings, covering subjects such as potential anthrax exposure.

Lockhart didn’t have an ASL interpreter or meeting notes, and couldn’t therefore effectively participate in the security meetings.

Two people's hands over a graph and a notebook, taking notes.
What would a meeting be like with charts and outlines and no explanations? Since Lockhart couldn’t hear any of the meeting content, he could only rely upon what he saw–if and when he was informed there was a meeting. photo credit: iComputer Denver Business Computer and IT Support via photopin (license)
Stack of manila envelopes.
Since Lockhart didn’t have accessible training, after 9/11, we had no way to know precautions to take to avoid anthrax exposure. photo credit: bourgeoisbee 11/15/07 via photopin (license)

“[M]y co-workers started to feel very concerned for me,” Lockhart testified, “because there was so much information that I wasn’t getting, and they were concerned for my safety.”

Lack of awareness about deafness

FedEx also had company training and according to court documents, Lockhart completed 24 FedEx training courses — “including courses on how to avoid workplace violence, how to recognize and interpret hazard labels on packages, and how to safely handle dangerous materials.”

Company records showed Lockhart performed satisfactorily for all the training sessions.

For computerized summative tests, “FedEx would direct a ‘team leader’ to sit with Lockhart at his computer and answer test questions for him if he made incorrect answers.”

“As Lockhart recalled, ‘the team leader would … move[] me out of the way and start[] taking the test for me.'”

Picture of part of a computer monitor and a keyboard.
Sometimes other FedEx personnel would take required tests for Lockhart rather than provide him an interpreter so he could take tests for himself.

Had Lockhart received an interpreter while taking tests, he could have clarified the language and taken the test for himself.

Lockhart was also fired by FedEx, while the case was still in courts.

Despite a clear failure to provide effective communication to Lockhart, FedEx fought the EEOC in courts.

What the court instructed the jury: accommodations

About an employee requesting accommodations, the jury was instructed that:

although a disabled employee possesses a general responsibility to inform his employer that such accommodations are necessary, “the need for a request may be excused altogether when a known disability interferes with an employee’s ability to make a request.” If that happens, “the employer must make a reasonable effort to understand what [the] needs are.”

What the court instructed the jury: awarding punitive damages

For awarding punitive damages, the jury was told those could be awarded if the jury found for the EEOC, and established from a “preponderance of evidence” that:

  1. “A higher management official of FedEx personally acted with malice or reckless indifference to Mr. Lockhart’s federally-protected rights;” and,
  2. “FedEx itself had not acted in good faith in an attempt to comply with the law by adopting policies and procedures designed to prohibit such discrimination in the workplace.”

What the court instructed the jury: good faith

The court advised the jury about what is good-faith, when managerial employees’ acts “were contrary to the employer’s own good faith efforts to comply with the law by implementing policies and programs designed to prevent such unlawful discrimination in the workplace.”

Cartoon of a jury from Revolutionary period.
Would a jury find that your company is making effort to abide by the ADA with its policies and oversight? photo credit: The British Library Image taken from page 102 of ‘Humorous Poems … With a preface by A. Ainger, and … illustrations by C. E. Brock. L.P’ via photopin (license)

What the court instructed the jury: bad faith

As far as determining bad faith, the jury was instructed that a “party that … delays the interactive process is not acting in good faith,” and that a “party who fails to communicate, by way of initiation or response, may also be acting in bad faith.”

Black and white photo shows an old looking sign that says, The deadline for complaints was yesterday.
Part of a healthy business communication system is having clear procedures for addressing employee grievances, not just receiving them. photo credit: blondinrikard Sign of the day via photopin (license)

Reckless Indifference to support punitive damages

To gain punitive damages, the EEOC “relied on a theory of reckless indifference to prove its claim.”

Read sign with white letters reads, It is far better to follow well than to lead indifferently.
Knowing the law and not taking action presents problems, particularly with business leadership. Management is held to higher standard because they have the authority and power to initiate action. photo credit: Brett Jordan Support Line (1 of 2) via photopin (license)

To justify punitive damages based on reckless indifference, sufficient evidence for the jury must be provided in these four areas:

(1) The employer’s decision maker discriminates in the face of a perceived risk that the decision will violate federal law;
(2) The decision maker is a principal or serves the employer in a managerial capacity;
(3) The decision maker acts within the scope of his employment in making the challenged decision; and
(4) The employer fails to engage in good-faith efforts to comply with the law.

An Employee Manual and Grievance Procedures Aren’t Enough

According to court documents, “FedEx contends that adoption of its ADA compliance policy, as set forth in the People Manual (providing that reasonable accommodations should be made for disabled employees), in conjunction with its internal grievance policy for handling employee complaints, established that it had acted in good faith to comply with the ADA.”

Picture of a meeting taking place. Topic isn't visible.
Company training minimizes risks. It’s an essential part of a businesses’ insurance policy against lawsuits. photo credit: OREALC/UNESCO Santiago Reunión Sub regional “Estrategias para la inclusión de la Gestión de Riesgos de Desastres en el sector Educativo” via photopin (license)

The court ruled, “Unfortunately for FedEx, the mere existence of an ADA compliance policy will not alone insulate an employer from punitive damages liability. Rather, in order to avoid liability for the discriminatory acts of one of its management officials, an employer maintaining such a compliance policy must also take affirmative steps to ensure its implementation.”

Fighting the $100,000 in punitive damages

FedEx opposed the punitive damage of $100,000, based on the acts not passing a reprehensibility test, according to court documents:

  • 1) whether the harm done was physical as opposed to economic;
  • (2) whether the conduct involved indifference to the health or safety of others;
  • (3) whether the victim was financially vulnerable;
  • (4) whether the conduct involved repeated actions or was isolated; and
  • (5) whether the harm suffered by the plaintiff resulted from conduct that was known or suspected to be unlawful.

The court determined that Lockhart’s supervisors “were familiar with the mandate of the ADA and perceived the risk that their conduct was unlawful,” and that Lockhart “missed updates about important subjects,” including handling dangerous materials and anthrax.

This justified the damages awarded to Lockhart.

FedEx’s request for a hearing at the Supreme Court

The Southeast ADA Center reported, “Federal Express filed a Petition for Writ of Certiorari with the United States Supreme Court on April 22, 2008 to determine whether the Fourth Circuit used an improper standard in allowing an award of punitive damages. On October 6, 2008, the Supreme Court denied the petition for review by Federal Express Corporation. Therefore, the punitive damages award of $100,000, upheld by the Fourth Circuit’s unanimous decision, prevails.”

Lessons learned about law

Man in green shirt sits among and audience with hand to chin in deep thought.
What can we do to avoid lawsuits and keep prevent employee grievances, or if they occur, handle them internally? photo credit: Biocat, BioRegió de Catalunya Lessons Learned_21.05.10 via photopin (license)

“This verdict sends victims and their employers a big message,” said EEOC Regional Attorney Jacqueline McNair, according to an EEOC newsroom release. “Employers must provide reasonable accommodations for qualified individuals with disabilities. It is the employer’s responsibility to demonstrate that it is committed to fully adhere to the requirements of the ADA on behalf of disabled employees, and that they are not to be treated like second-class citizens.”

Lessons learned about policies and procedures

FedEx had a partial defense of following the ADA:

  • an ADA compliance policy, and,
  • an internal grievance policy for handling employee complaints.
Chart that shows a flow of management policies, including compliance.
Compliance with company policy is essential, and planning and training raise awareness about these policies. photo credit: bryanmmathers (wapisasa) Workforce Pipeline driven by Open Badges via photopin (license)

Failure to comply with their own policies could be addressed by:

  • establishing regular ADA-compliance meetings for managers and supervisors,
  • disability awareness meetings for full staff, organized in cooperation with individuals who have a disability,
  • publicly and internally posting accommodations requests information,
  • publicly and internally posting grievance policies for employee complaints,
  • having a designated employee to receive grievances and address them, with their contact information affixed to publicly displayed and internally provided documents,
  • keeping grievance dialogues open until they are resolved, with a focus on learning what failed and solving that too,
  • consulting government agencies for information concerning new disabilities they wish to accommodate,
  • selecting partner providers ahead of time for Braille, sign language, live or closed captions, etc. and including partners in business-wide publications and public postings.

    Drawing of a tree with a quote next to it, Good judgment comes from experience, and a lot of that comes from bad judgment.-Will Rogers
    A good grievance procedure can help leaders determine policy problems and training needs for management and staff. photo credit: Ken Whytock Quotation: Good judgment comes from experience, and a lot of that…” via photopin (license)

To create procedures and documents, companies could hire contractors to draft initial publications and posters, as well as for managerial and staff training.

Once policies and procedures are created, businesses have greater protection from their employees making uninformed mistakes of judgment, and maintenance of the policies and procedures should require limited effort.

Unfortunately, FedEx would face many more employees for their next EEOC lawsuit, which will be covered in the next post.

 

 

 

 

 

EEOC sues McDonald’s for Discrimination against Applicant who is Deaf

While many people were Christmas shopping, the U.S. Equal Employment Opportunity Commission, or EEOC, filed a lawsuit for disability discrimination against McDonald’s.

According to a Disability.gov update, the EEOC has charged McDonald’s Corporation and McDonald’s Restaurants of Missouri with disability discrimination under the Americans with Disabilities Act (ADA).

“An applicant who is deaf applied for a job at a McDonald’s in Belton, Missouri. When the restaurant learned that the applicant needed a sign language interpreter as a reasonable accommodation for his job interview, they allegedly canceled the interview and wouldn’t reschedule it,” according to the Disability.gov update.

Man speaks and sign language interpreter signs with hands what he's saying.
Sign language interpreters aren’t a want for employees who are Deaf/Hard of Hearing and request them, they are a need. While employees may not need interpreters for most tasks, if they request an interpreter, the request should be taken seriously.

How might McDonald’s management have broken the law?

According to the ADA, “Title I of the Americans with Disabilities Act of 1990 prohibits private employers, State and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including State and local governments.”

According to the EEOC’s press release, they filed a lawsuit against McDonald’s for violating federal “by refusing to accommodate and hire a deaf applicant…”

“When the Belton restaurant manager learned [the applicant] needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, despite the [applicant’s] sister volunteering to act as the interpreter. Restaurant management continued to interview and hire new workers after [the applicant] made several attempts to schedule an interview,” according to the press release.

According to the press release, “EEOC seeks back pay, compensatory and punitive damages, and injunctive relief, including training for all McDonald’s managers on accommodations for applicants with disabilities, particularly those who are deaf.”

Disability symbol
“People with disabilities have one of the highest unemployment rates in the country,” EEOC Regional Attorney Andrea G. Baran said.

“People with disabilities have one of the highest unemployment rates in the country,” EEOC Regional Attorney Andrea G. Baran said in the press release. “Providing equal employment opportunities to all job applicants – including those with disabilities – is not just the law, it is good for our economy and our workplaces.”

According to a Disability.gov bulletin, the U.S. Equal Employment Opportunity Commission has a service for people who use American Sign Language (ASL). The Direct Video Access program helps people who are Deaf or Hard of Hearing get information in ASL about employment discrimination issues, including filing discrimination complaints. Call 844-234-5122 from 7 a.m.- 6 p.m. Eastern Time, Monday through Friday, to be connected to an EEOC representative who is fluent in ASL.