Reading Between the Lines

While a recent reduction in disability-related charges from the Equal Employment Opportunity Commission may be viewed as a positive trend, a deeper look shows a different picture.

Wednesday, March 12, 2014
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On the surface, the number of disability-related job-discrimination charges brought by the Equal Employment Opportunity Commission dropping over the past fiscal year would seem like a good thing.

The EEOC would not comment directly on the drop in disability charges for FY 2012-2013, other than to say that it does not know why it received fewer disability-related charges last fiscal year in comparison to past years. Joseph Olivares, an EEOC spokesperson, wrote in an emailed statement that it would be speculative to provide an answer since it has not studied the data.

"We do not know why discrimination charge statistics based on disability have gone down," he wrote. "If you look at the statistics, since FY 2010 our numbers have really not fluctuated very much, as we've taken in more than 25,000 charges in each year."

According to a pair of employment law attorneys, however, HR executives should actually pay closer attention to those FY 2012-2013 numbers. While fewer charges of job bias related to disability may indicate a positive trend, the past five years have seen consecutive percentage increases in disability-related charges -- from 20.4 percent in 2008 to 27.7 percent in 2012-13.

Joyce Taber, a partner with Morgan Lewis in the law firm's Washington office, says that, while the raw number may have decreased, the fact is the trend since 2008 -- when the Americans with Disability Act was expanded -- clearly shows an upward trajectory.

"HR executives and leaders should not lapse into a false sense of security," Taber says."Year over year, if you look at the trends and percentage increases, disability-based charges remain an integral part of the EEOC's strategic focus, both the ADA and its reasonable accommodations in particular."

Taber points out that, when you consider the charges by issue, reasonable accommodations in 2010 were 8,400, but that number spiked to 14,197 in 2013 -- a significant increase.

"The reasonable-accommodations component is rising because, apart from charges based on what most consider direct disabilities of an employee, the EEOC also is looking at broader policies, including leave," Taber says.

For example, an employer with a strict maximum leave policy -- say for FMLA -- could draw EEOC attention, because a request for additional time off can be construed as a reasonable accommodation under ADA. Also, for EEOC litigation statistics during the recent year, ADA claims remain a substantial portion of EEOC activity. In 2013, 138 lawsuits were filed with ADA-related cases, second only to the 81 lawsuits filed under Title VII of the Civil Rights Act of 1964.

Rose Isard, an employment-law attorney with Buchanan Ingersoll & Rooney in Philadelphia, says the statistics behind the decrease in claims may also speak to the notion that weak discrimination cases (related to disability or otherwise) often times will become strong retaliation cases -- a category on the rise within EEOC charges.

"The ADA Amendments Act in 2008 really did expand discrimination protection under ADA," she says. "But a decrease in absolute number -- while the percentage of charges goes up -- clearly is not a sign to lose sight of this area. Retaliation claims are up in number and percentage, and weak discrimination of any type often turns into strong retaliation cases."

While discrimination cases are often difficult for an employee to prove, the potential for a future retaliation complaint increases once a complaint is filed, says Isard.

"It's a real risk for employers," she says.

In fact, the EEOC reports that, of the 93,727 charges in 2013 (a 5.7-percent decrease from 2012), retaliation under all statutes was the most frequently cited basis for charges of discrimination, increasing in both actual numbers (38,539) and as a percentage of all charges (41.1 percent) from the previous year. Apart from the disability numbers, race discrimination (33,068/35.3 percent); sex discrimination, including sexual harassment; and pregnancy discrimination (27,687/29.5 percent) were among the leaders.

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Isard agrees that the intersection of leave laws and disability is a place for potential pitfalls. With FMLA and state laws, the combination of employees asking for additional leave and then determining reasonable accommodations for employees is causing confusion under ADA.

"Employers need to think about it if someone is taking time off for FMLA. They have to consider what the obligations are under the ADA, FMLA and state laws," she says.

While currently it is a very small number, the EEOC's emerging focus on the Genetic Information Nondiscrimination Act should also concern employers, according to both Taber and Isard. GINA is designed to prohibit the use of genetic information in health insurance and employment, basically prohibiting group health plans and health insurers from denying coverage to a healthy individual (or charging that person higher premiums) based solely on a genetic predisposition to developing a disease in the future.

"GINA warrants attention from HR and internal policy makers," Taber says, noting that, while there were only three GINA-based EEOC lawsuits in 2013, it was the first time for any litigation of that sort.

"It is consistent with the EEOC's stated plan of enforcement to bring life to this new law," she says.  In fact, addressing emerging and developing issues in EEO law, such as genetic discrimination, is one of the EEOC's stated six national priorities for strategic enforcement. In May 2013, the EEOC settled its first ever GINA-based lawsuit, and in January the agency settled the latest GINA-related disability case.

As part of the ongoing quest of staying off the EEOC's disability radar, Taber recommends that employers keep a close eye on all related issues.

"In light of the trends, responding to ADA and the raw increase in reasonable accommodations, and now the GINA interest, employers should carefully look at the specifics related to disability," she says. "They must make sure all their internal information, including handbooks, workplace posters, websites, etc., is up to date. They also have to ensure that any business partners who do hiring for them are in compliance with the law."

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