The law firm of Seyfarth Shaw LLP has released its annual report on EEOC litigation and court rulings. This list of Case Law Developments In 2015 And Trends to Watch for In 2016 offers the most definitive source of analysis focusing exclusively on EEOC-related litigation. To download the complete report, click here Seyfarth Shaw Case Law Trends EEOC_Intro_2015.
Authored by Seyfarth lawyers Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew Gagnon, the report compiles, analyzes, and categorizes the major case filings and decisions that significantly changed the landscape of EEOC-initiated litigation in the EEOC’s Fiscal Year (FY) 2015. The report, which comes near the end of the EEOC 2013-2016 Strategic Enforcement Plan (“SEP”), is arranged in four main parts:
The Report is a valuable read that addresses important developments in EEOC enforcement actions, includes an overview of EEOC theories, presents a picture of future EEOC litigation and lists significant court decisions in 2015 by subject matter.
In addition, the “Industry-By-Industry” section of Seyfarth’s EEOC-Initiated Litigation report collects the number and types of filings affecting particular industries, and analyzes what this reveals about those industries going into 2016.
Seyfarth Shaw has more than 850 attorneys providing legal services for labor and employment, employee benefits, litigation, corporate, and real estate. Clients include over 300 of the Fortune 500 companies served by offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney, and Washington, D.C. To learn more, visit www.seyfarth.com.
For this blog post we are going to focus on their comments as it pertains to the application stage, post offer/pre-employment stage and the employment stage.
On pages 65 to 68 there is a discussion about issues employers should consider during the lifecycle of employment. It starts with an emphasis on an employer being aware of Americans with Disabilities Act (ADA) compliance with the application and investigation process. Two areas that we see many employers violate the ADA are making inquiries of prior worker compensation injuries and drug testing. An inquiry into previous worker compensation injuries can be made only after a conditional job offer has been extended. In fact, a report of this nature can be valuable for the physician conducting a medical examination. Often soft tissue injuries will not show on a clinical examination. But, a previous soft tissue injury may show on this report. Also, the panels tested in a drug test should be structure properly. There is absolutely no problem testing for the illegal drug panels on a pre-offer basis. However, a drug test that includes both illegal and legal drug panels should only be conducted post-offer.
So, employers should not ask for information about a person’s physical or mental health during the hiring process. In addition to the reports mentioned in the previous paragraph, the article even refers to questions that might be considered illegal. For example, a question such as how many days did you miss last year due to illness?” could be illegal under the ADA.
The article mentions that it is perfectly acceptable to ask the applicant if they can perform the specific job functions. This highlights the importance of a job description as we describe in our blog here.
And when it comes to compliance, it is most importance that you have an adequately trained individual on your staff familiar with these rules and regulations. Also, you should never hesitate to involve your legal counsel. Talk to any defense lawyer. They will tell you that so many times their clients only call them AFTER damage has been done. It makes much more business sense to spend a few pennies before the situation gets out of control rather than spend dollars trying to fix the mess after a problem has occurred.
The article highlights the fact that on a post-offer basis an employer has relatively broad rights and may ask disability-related questions and/ or require a medical examination. Again on this post-offer basis these inquiries do not have to be job related and consistent with business necessity.
However, during employment an employer may ask disability-related questions and/or require a medical examination only if it is job related and consistent with business necessity. We highlight this fact in our blog post about testing for alcohol.
