In a recent settlement with the EEOC, Sears Roebuck agreed to pay $6.2 million to resolve claims made by persons with disabilities. Sears also agreed to enter into a consent decree, which means Sears agreed to perform many other non-monetary tasks in settlement of the claims. The EEOC represented persons with disabilities who had worked at Sears. In the suit, Sears allegedly maintained an inflexible leave policy which did not look at each request for leave on a case-by-case basis. This is the largest ADA settlement ever. Some 235 Sears employees received an average of $26,300 each.
The EEOC also sued UPS in a class action lawsuit also for maintaining inflexible leave policies. See report. Delaware employment law blog reports that these leave policies concerned employers who terminate employees after six or twelve months, regardless of their individual situation. These policies are fairly common, since they supposedly avoid claims of discrimination. The theory is that every employee, regardless of whether their injuries stem from worker’s compensation complaints, disabilities or just simple personal injuries, is treated the same: they are fired after so many months (six or twelve typically). If all employees with health problems are treated the same, then there is no discrimination, correct?
No. Wrong, because the ADA requires an individualized assessment of a person’s need. Under the ADA, an employer must conduct a case-by-case evaluation regarding requests for accommodation. For example, if an employee needs more time off as part of some treatment plan, the ADA would require an accommodation of more than six or twelve months of leave. As Delaware employment law blog explains, employers with such leave policies are prime targets for lawsuits, now. Many of us viewed such policies as unlawful. Now, we know they are unlawful. Employer should examine their polciies to make sure they allow for some sort of individualized evaluation whether extended leave is necessary as an accommodation.