Caution: EEOC’s Disability Enforcement Actions and Your Company’s Sick Leave Policies

Disability discrimination EEOC charges are up and continue to rise. In FY2011, the EEOC received 25,742 disability discrimination charges. Disability discrimination represented 25.8 percent of all charges received by the EEOC.

Have you recently reviewed your sick leave and other policies in light of the Americans with Disabilities Act (ADA)? If not, then it is time to do so. Dillard’s department stores recently settled a long-standing lawsuit filed by the EEOC, related to disability discrimination. EEOC v. Dillard’s Inc. (S.D. Cal.2012). To settle the matter, Dillard’s agreed to pay $2 million and to institute internal policy changes.

There were two issues that caused the EEOC to take up this matter against Dillard’s. First, Dillard’s had a sick leave policy that required employee’s to produce a detailed medical certificate prior to approving sick leave requests. Second, Dillard had a practice of terminating employees for taking sick leave beyond a maximum amount of time allowed without conducting an individualized ADA analysis. 

EEOC regional attorney, Anna Park, said that Dillard’s requirement of a detailed note for sick leave violated the ADA’s prohibition against employers making inquiries into the disabilities of their employees without first showing that they are job-related and necessary for the conduct of business. She also said that Dillard’s violated the ADA by enforcing a maximum sick leave policy without engaging in an interactive process with its workers to determine if more leave is required as a reasonable accommodation.

The EEOC has been increasingly focused on employers enforcing no-fault attendance policies or maximum limits on medical-related absences. Before you take any adverse employment actions in these circumstances contact an MSEC attorney.