The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Qualification Standards; Disparate Impact

November 17, 2011

[ADDRESS]

Dear ____:

This is in response to your letter, dated October 9, 2009, and postmarked October 12, 2011, asking whether the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), prohibits the State of Tennessee from requiring students with learning disabilities to take “Gateway tests” or “end-of-course assessments” in order to receive their full high school diplomas. We responded to the same inquiry when we received it in December of 2010, by referring you to the Department of Education. Please find the earlier response attached.

In the event that you found our earlier response incomplete or were seeking additional clarification, however, we are responding to a statement in your letter that raises a concern under Title I of the ADA, 42 U.S.C. §§ 12101 et seq., which EEOC enforces. You correctly point out that some individuals cannot obtain a high school diploma, and therefore cannot obtain jobs requiring a high school diploma, because their learning disabilities caused them to perform inadequately on the end-of-course assessment.

Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).

Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant. However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.
We hope this information is helpful. This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.

Sincerely,

 

/s/
Aaron Konopasky
Attorney Advisor
ADA/GINA Policy Division

This page was last modified on January 5, 2012.

The Agreement will streamline the processing and investigation of employment discrimination charges and provide a framework to solve workplace disputes through Alternative Dispute Resolution instead of through an EEOC investigation or through civil litigation.  Under the Agreement, the EEOC will refer discrimination charges against Cracker Barrel directly to mediation. 

 To read the EEOC’s press release on its Agreement with Cracker Barrel, click here. 

The EEOC alleged that Verizon failed to provide reasonable accommodation to individuals with disabilities as required under the Americans with Disabilities Act (ADA) through its “no fault” attendance policy. The attendance policy placed employees with a certain number of “chargeable absences” in disciplinary action which could result in termination. The company also failed to provide exceptions to the policy for individuals with disabilities whose “chargeable absences” were based on their disabilities. Thus, the EEOC asserted, Verizon terminated employees who needed reasonable accommodations because of their disabilities based on its policy.

This historic settlement demonstrates the need for employers to have flexible leave and attendance policies that provide for reasonable accommodation for employees with disabilities. Similar to the Verizon settlement, in January 2011, the EEOC staked out its stance against policies of automatic termination at the end of disability-related medical leave in a $3.2 million settlement with Supervalu, Inc., American Drug Stores, LLC, and Jewel Food Stores, Inc. To read our post about this case, click here.

Based on recent large EEOC settlements, in June 2011, the agency held a public hearing regarding leave as a reasonable accommodation under the ADA. To read about the hearing and about the EEOC’s views on leave policies under the ADA, click here.

To read the Verizon EEOC press release, click here.

In the consent decree, the EEOC said that since Nov. 1, 2003, Jewel-Osco unlawfully terminated employees with disabilities at the end of medical leaves rather than bringing them back to work with reasonable accommodations.  According to the EEOC, Jewel-Osco prohibited employees who were on one-year paid disability leave from returning to work unless they could return without any accommodation to full service and had no physical or mental restrictions   The EEOC alleged that approximately 1,000 employees of Jewel-Osco stores in the greater Chicago area were allegedly terminated under this policy since 2003.  Not all of these former employees, however, wished to participate in the suit.  Notably, according to the EEOC, not all of these former employees were found eligible by the EEOC.

The consent decree resolving the case provides a $3.2 million fund in which 110 individuals will share, bringing the average award to just over $29,000 per claimant.  In addition to the monetary relief, Jewel-Osco is required to ensure that its employees involved in making accommodation decisions undergo training on the requirements of the ADA and on the types of accommodations that are available to return their employees to the workplace.

Under the consent decree, the company will have to report regularly to the EEOC on its efforts to accommodate employees with disabilities who are attempting to return from medical leaves of absence.  Jewel-Osco must also revise its communications with such employees to assure them that they don’t need to be 100 percent healed to be considered for a return to work and to notify them of the types of accommodations that might be available if they are considering returning to work with medical restrictions.  Jewel-Osco also will hire consultants to review and recommend changes to its current job descriptions, ensure that the descriptions of the physical requirements of the job are accurate and provide recommendations on possible accommodations to common work restrictions in various positions in the stores, the EEOC said.

Supervalu denied wrongdoing.  Luke Friedrich, a spokesman for Supervalu, said that “while Supervalu and Jewel-Osco believe that we’ve fully complied with the law, we ultimately chose to settle this case in order to avoid future litigation costs, put the matter behind us and focus on our current business initiatives. Supervalu and Jewel-Osco do not discriminate on the basis of disability.  In fact, Jewel-Osco has been consistently recognized for its efforts to hire and accommodate people with disabilities, receiving awards from multiple advocacy organizations and being named one of the top employers in Illinois for people with disabilities by the Illinois Department of Human Services’ Division of Rehabilitation Services. We remain committed to providing the best possible employment opportunities for all of our associates.”

A link to the EEOC press release can be found here.

MA – A national denture provider will pay $150,000 to settle a sex and race discrimination suit brought by the EEOC on behalf of two female employees who alleged they were harassed by an affiliated dentist.

PA – A temporary staffing company agreed to pay $12,000 to settle a sexual harassment and retaliation suit brought on behalf of a group of female employees who alleged they were subject to harassment by a male supervisor at an assigned work location. 

MD – An aircraft systems company agreed to a $130,000 settlement in an age discrimination suit brought on behalf of a 61-year-old employee who alleged he received poor performance reviews and was refused a promotion because of his age.

MN – A federal district court ruled in favor of the EEOC on the employer’s summary judgment motion in a disability discrimination suit.  The court found that there was an issue of fact on whether a job applicant who was deaf could have performed the job with a reasonable accommodation, especially in light of the fact that the applicant had previously performed that same type of work.

CA – A motorcycle dealership will pay $55,000 to settle a sex discrimination and retaliation suit brought on behalf of a female employee who alleged she was refused a position as a mechanic while the company hired less qualified men as mechanics.

MI – An automotive supplier has agreed to pay $190,000 to settle a race discrimination and retaliation suit brought on behalf of a group of minority employees who alleged they were denied promotions.

GA – A staffing company will pay $125,000 to settle a race and age discrimination suit brought on behalf of an employee who alleged she was discriminated against because of her race and age and then fired in retaliation after she complained about it.

AZ – A packaging manufacturer will pay $250,000 to settle an age discrimination suit brought on behalf of three former employees who alleged they were fired because of their age.

FL – Avea Drug Delivery Systems agreed to pay $58,000 to settle a disability discrimination suit brought on behalf of a former employee with renal disease who alleged she was fired upon returning from a medical leave of absence.

FL – Hilton Grand Vacations will pay $25,000 to settle a pregnancy discrimination suit brought on behalf of a former employee who alleged she was persuaded to resign her employment because of pregnancy-related complications and then not rehired, contrary to the company’s promise to rehire her after she gave birth.

AZ – Yuma Oak Tree Inn agreed to pay $75,000 to settle a religious discrimination suit brought on behalf of former employees who alleged they were forced to engage in a religious prayer ceremony despite their different religious beliefs.

AK – Starbucks will pay $80,000 to settle a disability discrimination suit brought on behalf of a job applicant with multiple sclerosis who alleged he was not hired because of his disability.

TX – Two Sonic franchises agreed to pay $55,000 to settle a sexual harassment suit brought on behalf of female employees who alleged they were harassed by their managers.

IL – A nationwide staffing company will pay $100,000 to settle a disability discrimination suit brought on behalf of a blind female employee who alleged that her job offer was revoked when the company learned of her disability.

NC – A scrap metal processing company agreed to settle an age discrimination suit for $10,000 brought on behalf of a 76-year-old man who alleged he was passed up for a position because of his age.

CA – A construction company will pay $50,000 to settle a national origin discrimination suit brought on behalf of a group of Hispanic workers who alleged they were subject to verbal harassment by their supervisor.

MS – A plastic molding company agreed to pay $190,000 to settle a sexual harassment suit brought on behalf of female employees who alleged they were harassed by a male supervisor and co-worker.

MD – The Community College of Baltimore County will pay $50,000 to settle an age discrimination suit brought on behalf of an employee who alleged she was not hired for a position because of her age.

AZ – An oral surgery clinic will pay $118,775 to settle a pregnancy discrimination suit brought on behalf of a female employee who alleged she was fired because she was pregnant, and another employee who alleged she was not hired after the company learned she was pregnant during an interview.

GA – A home builder agreed to a $378,500 settlement in a race and sex discrimination suit brought on behalf of a group of African-American sales agents who alleged they were discriminated against with respect to their compensation because of their race.  As part of the settlement, the builder also agreed to hire at least ten African-Americans and women into management positions over a six year period.

TX – Cinram Wireless will pay $40,000 to settle a religious discrimination and retaliation suit brought on behalf a former employee who alleged the company failed to accommodate her Sabbath, and then fired her in retaliation for complaining about it.

CO – PETCO agreed to pay $145,000 to settle a disability discrimination suit brought on behalf of a deaf pet groomer who alleged she was penalized during performance reviews because of her disability.

GA – State and county government agencies will pay $60,000 to settle an age discrimination suit brought on behalf of a former employee who alleged she was fired because of her age.

AZ – Boeing agreed to pay $380,000 to settle two sexual harassment and retaliation claims brought on behalf of female employees who alleged they were discriminated against and harassed by male coworkers and managers.

PR – The University of Puerto Rico has settled an age discrimination suit brought by the EEOC alleging that the university discriminated against older employees with respect to their pension system.  The agreement specifies that the court will appoint an official to process and resolve the employees’ claims, estimated at over $200,000.

PA – A software company will pay $175,000 to settle an age discrimination suit brought on behalf of a former vice president who alleged he was fired because of his age and replaced by an employee 15 years younger.

CA – Landwin Management, a hotel operator, has agreed to pay $500,000 to settle two national origin bias and sexual harassment suits brought on behalf of several employees who alleged they were not hired due to their national origin, and a group of female employees who alleged they were sexually harassed.

LA – Columbia Sussex Corporation agreed to settle a sex discrimination and retaliation suit brought on behalf of a male employee who alleged he was treated differently than a female coworker and then retaliated against after he complained.  The settlement consists of paying compensation to the employee for his losses, and rehiring him at one of the company’s properties.

OR – A funeral chapel agreed to pay $62,500 to settle a disability discrimination suit brought on behalf of a former employee who alleged she was fired after she needed a wheelchair.

GA – An Atlanta clothing company will pay $40,050 to settle an age discrimination suit brought on behalf of a former store manager who alleged she was subject to disparate treatment and ultimately terminated because of her age.

IL – A federal district court approved distribution of a $6.2 million settlement in an ADA discrimination suit against Sears, Roebuck & Company on behalf of a class of employees who were terminated pursuant to the company’s workers’ compensation leave policy.  The EEOC identified 235 employees who were eligible to share in the award.  According to the EEOC, the settlement is the largest in a single ADA suit in EEOC history.

CA – A solar power company agreed to settle a disability discrimination suit for $30,000.  The suit was brought by the EEOC on behalf of an employee who was fired hours after beginning work once her supervisor discovered she was paralyzed in one arm.

NC – Branch Banking & Trust will pay $24,000 to settle a disability discrimination suit brought on behalf of a bank teller who was denied a reasonable accommodation for her hearing impairment.

CA – Big Lots, Inc. agreed to pay $400,000 to settle a race harassment and discrimination suit brought on behalf of a group of African American employees who alleged they were harassed and discriminated against by their supervisor and coworkers.

PA – UPS Freight will pay $46,000 to settle a religious discrimination suit brought on behalf of a former employee who alleged he was fired because of his religious beliefs which required him to keep a beard and long hair.

CO – Oldcastle SW Group, Inc. agreed to pay $498,000 to settle a sex discrimination and retaliation suit brought on behalf of a former employee who alleged she was harassed and discriminated against by her managers and coworkers and then terminated after she complained about the treatment.

The EEOC’s congressional 2010 budget justification document highlights the agency’s priorities for the upcoming year:

C. Chair’s Priorities

Since the establishment of the EEOC in 1965, much progress has been made in reducing illegal discrimination in the American workplace. Yet discrimination continues to be a substantial problem for too many people in America. Significant work remains to be done.

A key for the EEOC to be successful is a strong law enforcement and litigation program. Concrete steps will be taken to restore capacity to effectively investigate charges and litigate cases. While past EEOC focus has primarily been on individual cases of discrimination, the agency has stated its bipartisan desire to shift emphasis to combating systemic discrimination. A strong systemic program is crucial to battling unlawful patterns or practices of discrimination which have a broad impact on an industry, profession, company, or geographic location.

Recently enacted legislation will improve the EEOC’s law enforcement capability. The Lilly Ledbetter Fair Pay Act of 2009 restores the long standing EEOC position that discriminatory compensation decisions or other unlawful practices occur each time compensation is paid. We expect more charges to be filed as a result of this Act. The Americans with Disabilities Act (ADA) Amendments Act of 2008 restores congressional intent of the original ADA, and directs us to construe the term “disability” broadly. We will issue regulations interpreting the Act as well as conduct outreach activities to educate the public. We anticipate that in fiscal year 2010, more than 5,000 charges will be filed which will result in a significant increase to our workload.

In addition, we will address the Genetic Information Non-Discrimination Act (GINA) of 2008, which prohibits public and private employers from using genetic information in making employment decisions. The Commission will provide training programs and technical advice and assistance regarding GINA and its implementing regulations that we will issue in 2009.

Finally, the EEOC will utilize outreach efforts with stakeholder organizations on particular workplace issues or topics in the race context. Additionally, through our enforcement and litigation efforts, we will pursue charges for priority, novel or emerging legal issues in the context of race discrimination.

We have highlighted in bold several areas of focus that we find significant, in part because they are not defined.  For example, what “novel or emerging legal issues in the context of race discrimination” will the EEOC be focusing on?

In July, the EEOC published an informational document entitled “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” to educate employees on waiver provisions that may be found in their separation agreements.  The document makes clear that “agreements that attempt to prevent employees from cooperating with the EEOC interfere with enforcement activities because they deprive the Commission of important testimony and evidence needed to determine whether discrimination has occurred.”  The EEOC also cautions that agreements that prohibit employees from filing EEOC charges constitute retaliation.  Although merely offering a severance agreement containing such language does not by itself constitute retaliation, employers are advised to avoid broad provisions that restrict employees’ rights to file a charge without limitations.

With regard to waivers of ADEA claims, the Older Workers Benefit Protection Act (“OWBPA”) addresses 7 requirements for these waivers, all of which must be met in order for the waiver to be valid and enforceable:

1)         Waivers must be drafted using plain language that is easily understandable by an average individual.

2)         Waivers must specifically refer to the ADEA by name.

3)         Waivers must affirmatively advise employees to consult with legal  counsel before signing the agreement.

4)         Waivers must provide employees with 21 days to accept the offer.

5)         Waivers must provide a 7 day revocation period during which the employee can revoke his or her acceptance.

6)         Waivers cannot include claims that arise after the date the waiver is executed.

7)         Waivers must be supported by additional and separate consideration.

With regard to waivers of FMLA claims, the final regulations clarify that such claims can be voluntarily waived by employees without court or DOL approval.  This was in response to a 2007 Fourth Circuit case that held that waivers of FMLA claims needed prior approval to be valid.  As mentioned earlier, the regulations do not allow the waiver of future claims.

As for claims under the Fair Labor Standards Act (“FLSA”), waivers of these claims require court or DOL approval.  The reasoning behind this requirement is that waiver of an employee’s right to minimum wage and overtime goes against the purpose and intent of the statute.

Employers are well-advised to avoid boilerplate language in severance agreements that might be construed to categorically limit an employee’s right to bring an EEOC charge.  Also, employers who are seeking a release from FMLA claims should make sure to include a separate provision in the severance agreement addressing the employee’s knowing and voluntary waiver of these claims.

MS – A casino agreed to a $75,000 settlement in a disability discrimination suit brought by the EEOC on behalf of an employee who was fired after she requested a reasonable accommodation due to injuries sustained in an auto accident.

CO – A private correctional facility agreed to pay $1.3 million to settle a sexual harassment and retaliation suit brought on behalf of several female employees who alleged they were subject to a hostile work environment by male co-workers and supervisors.

MD – Sunbelt Rentals, Inc., a commercial rental company, has agreed to pay $64,641 to settle a religious discrimination suit brought on behalf of a Muslim employee who alleged he was discriminated against because of his faith.

CA – A mental health rehabilitation center agreed to a $145,000 settlement in a sexual harassment and retaliation suit brought by the EEOC on behalf of a group of female employees who alleged they were harassed by a supervisor.

MI – An auto parts supplier has agreed to pay $105,000 to settle a race discrimination suit brought on behalf of an African-American worker who was not promoted due to his race.

MN – Hobby Lobby has agreed to pay $35,000 to settle a disability discrimination suit brought on behalf of an employee who was prohibited from using her wheelchair while performing her job and was subsequently discharged.

OH – A manufacturing company will pay $245,000 to settle a national origin discrimination suit brought on behalf of two Hispanic workers who alleged they were denied training opportunities and were the only employees laid off in a reduction in force.

NC – A retirement living center agreed to a $20,000 settlement in a pregnancy discrimination suit brought by the EEOC on behalf of an employee whose work hours were reduced after she became pregnant.

UT – Tim Dahle Nissan agreed to pay $455,000 to settle a sexual harassment and retaliation suit brought on behalf of five female employees who alleged they were harassed by the dealership’s salesmen and sales managers.

NY – Thomas Dodge Subaru will pay $132,250 to settle a sexual harassment suit brought on behalf of a group of female employees who were subject to verbal and physical abuse in the workplace.

The Fourth Circuit reversed the district court’s interpretation that the 90-day period began running from the conclusion of an initial appeal, regardless of whether the employee timely files a motion for reconsideration.  Looking at prior judicial interpretation of the regulation, a notice from EEOC to the plaintiff Phillip Cochran, and Supreme Court precedent, the court reversed the prior decision.  The court held instead that a timely motion for reconsideration delays the running of the 90-day limitation period until the EEOC ruled on the reconsideration motion.

The Fourth Circuit looked back at two amendments of EEOC regulations in 1987 and 1999 affecting the definition of “final” as used in § 2000e-16(c).  In 1987, the definition changed in a few important respects: 1) under 29 C.F.R. § 1614.407(b), an employee was limited to one request for reconsideration, filed within 30 days of the original EEOC decision, and 2) under 29 C.F.R. § 1614.405(b), the EEOC issued an explicit definition of “final” under § 2000e-16(c).  That definition made a decision by the Office of Federal Operations (OFO) final for limitations purposes unless a) either party files a timely motion for reconsideration or b) the Commission on its own reconsiders the case.  In 1999, another amendment to EEOC regulations limited reconsideration of cases involving “a clearly erroneous interpretation of material fact or law” or a “substantial impact” on the agency.  The definition of “final” here stated that a decision issued by the OFO is final unless the Commission reconsiders the case and a “party may request reconsideration within 30 days of receipt of [the decision].”  The EEOC retained this definition.

The court also revisited Supreme Court precedent from Stone v. INS and ICC v. Bhd. Of Locomotive Engineers.  In Locomotive Engineers, the Court held that filing a motion for reconsideration delays the finality of an agency decision under the Hobbs Act.  This decision came regardless of statutory language suggesting that motions for reconsideration do not affect the limitations period for judicial review.  They relied on how similar language in the Administrative Procedure Act (APA) has been construed, such that parties are relieved from the requirement of petitioning for rehearing before seeking judicial review.  In the more recent case, Stone, the Court concluded that the APA’s a “tolling rule,” allowing the timely filing of a motion for reconsideration, renders an underlying agency’s order nonfinal for judicial review purposes.  It is important to note that Stone was especially relevant because the Supreme Court rejected the Government’s anti-tolling argument even with its strong support by regulatory language.  Comparing 8 C.F.R. § 243.1 (1990) with 29 C.F.R. § 1614.405(b) (2008), there’s a clear difference.  The former states: “The agency’s order becomes final upon dismissal of an appeal by the agency,” and the latter, “A decision issued by the EEOC on appeal is final under § 2000e-16 unless the Commission reconsiders the case.”

Finally, the court gave three additional reasons for its interpretation of § 1614.405(b).  These include prior district and appellate court opinions, a notice provided by EEOC to Cochran (similar to that provided to other aggrieved employees), and policy considerations.  From prior opinions, the court highlighted that all six federal appellate courts addressing the question presented here concluded that “a timely motion to reopen or reconsider delays the start of § 2000e-16(c)’s limitations period.”  Next, the notice sent by the EEOC notified Cochran that he had the right to file suit in a district court “within ninety (90) calendar days from the date that you receive this decision.”  Lastly, several policy considerations contribute to the court’s interpretation of § 1614.405(b)-including procedural fairness to parties, judicial efficiency, and maintaining an interpretation consistent with other similar legal contexts (to avoid confusion by litigants).

Contributed by K.C. Osuji