Sears Settlement with EEOC Raises New Concerns on ADA Enforcement
Sears recently reached a $6.2 million settlement with the Equal Employment Opportunity Commission (EEOC) regarding Americans with Disabilities Act (ADA) violations stemming from the company's alleged refusal to return injured workers to the job. This is the largest ADA settlement in a single lawsuit in EEOC history. More aggressive enforcement has been promised by the Obama administration across the civil rights/ employment discrimination front; this appears to be a product of that new policy.
At the root of the EEOC's allegations was an “inflexible” workers' compensation leave policy that had the effect of terminating employees rather than seeking and/or arriving at a reasonable accommodation that would yield a return to work. Although only one employee filed a charge, the EEOC claims that pretrial discovery revealed that hundreds of other employees who had taken workers' comp leave were also terminated without regard for a return to work or an extended leave under the Americans with Disabilities Act.
Although the Chicago office of the EEOC has earned the reputation of being the most aggressive in litigating cases, the size of the award is stunning, especially in light of the fact that at this stage of the proceedings, it isn't likely that there could have been a basis for establishing that the “hundreds” of employees supposedly involved either had disabilities or could have been accommodated. EEOC press releases are always drafted to put the agency in the best light and rarely disclose all the factors at play.
Nonetheless, employers with policies or practices that don't provide a mechanism for exploring the possibility of returning injured employees to work — or a process for offering settlements through a workers' comp insurer — should be on notice that the ADA is involved and that private plaintiffs' counsel will likely try to follow the path made by the EEOC.
Burton J. Fishman is an attorney with Fortney Scott LLC in Washington, D.C., which writes and edits the Federal Employment Law Insider. This article was published at www.HRHero.com by M. Lee Smith Publishers LLC and is reprinted with permission.