Last month, the First Circuit Court of Appeals narrowly rejected the EEOC’s litigation tactics in pursuit of its Strategic Enforcement Plan (“SEP”), holding that an employer’s attempts at reasonable accommodation absolved it of liability for failure to accommodate and constructive discharge. EEOC v. Kohl’s Dept. Stores, Inc. (1st Cir. 2014).
Pamela Manning, a full-time associate with Kohl’s from 2008 to 2010 (after promotion from part-time for two prior years), enjoyed predictable shifts, working from 9 a.m. to no later than 7 p.m. Unfortunately, a 2010 nationwide restructuring caused a reduction of hours in Manning’s department. Manning was able to continue working full-time by working in other departments as-needed, with the understanding that she be available for swing shifts, night shifts, and weekends.
Soon after, Manning (and later, her doctor) indicated that her diabetes could be seriously complicated unless she could work a “predictable” schedule, as she had before the restructuring. When Kohl’s Human Resources department told her it could not guarantee a steady 9-to-5 schedule, Manning resigned, slammed a door, and cleared out her office, even as the HR representative tried to calm her down and persuade her not to quit.
The duty to provide reasonable accommodation does not generally require offering an opportunity to “unquit.” Yet, Kohl’s called Manning again 10 days later and asked her to reconsider. Manning refused to talk, and later admitted she did so “per EEOC’s directions.”
Condemning EEOC’s actions, the court said: “Manning should have been directed … that she was obliged to continue … the interactive process in good faith. It thus may well be that Manning’s current predicament is due to erroneous advice provided by the EEOC.”
Sanctions against the EEOC may follow for taking and pursuing the case. A lengthy dissent nonetheless reminds employers to always pursue the interactive process in a manner that is truly in “good faith” and avoids any arguable appearance of “empty gestures.”