The Fifth Circuit Reminds that the Interactive Process Under ADA Is a Two-Way Street

mjaxmi0ym2mxzweyzdfkzju4n2y4
The Fifth Circuit recently found in favor of the City of Austin for firing a disabled employee because he did not attempt to perform his new lighter-duty job in good faith.  After the employee was injured on the job, the city offered him an administrative position as an accommodation because he could not perform manual labor required by his prior job.  

The employee accepted the new job, but began missing work, played computer games and surfed internet, slept on the job, made personal phone calls and applied for other positions within the city while at work.  He also refused to participate in any training that would have helped him perform his new job.  

After he was fired, he sued the city alleging discrimination based on disability and failure to provide him with reasonable accommodation. The Fifth Circuit found no discrimination and emphasized that “terminating an employee whose performance is unsatisfactory according to management’s business judgment is legitimate and nondiscriminatory as a matter of law.”  It further explained the boundaries of the interactive process between an employer and an employee who requests an accommodation for his disability.

Once an employee requests an accommodation based on a disability, the employer and employee must work together in good faith, back and forth, to find a reasonable accommodation. The process does not end with the first offer of accommodation but continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. Thus, the process is a two-way street.  In this case, once the employee accepted an administrative position, he had to make an honest effort to learn and carry out the duties of his new job with the help of the training that his employer had offered to him. He certainly had an obligation not to engage in misconduct at work.   Once he had shown no desire to try to succeed in that position, the city had no duty to offer him another job. After all, the ADA provides a right to reasonable accommodation, not the employee’s preferred accommodation.

Takeaway: When an employee requests a reasonable accommodation due to disability, the employer must engage in an interactive process with that employee to determine what reasonable accommodation will help the employee perform his or her duties. Employers should always document the process so that they have proof of engaging in it in good faith.  Employees should also engage in the process in good faith, which means that if an accommodation is granted to them, they should try to take advantage of it. At the end of the day, an employer is required to provide reasonable accommodation, but not necessarily the accommodation requested by the employee.

Leiza is a business and employment attorney in Dallas, Texas. If you need assistance with a business or employment dispute contact Leiza for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.

 

Employers Should Consider Protection of Trade Secrets When Responding to EEOC Charges

imagesWhen responding to an EEOC charge of discrimination, employers should always separate and clearly mark any trade secrets or confidential information included in the position statement to the EEOC. This is especially important in light of the EEOC’s new procedures that provide for the release of employers’ position statements and non-confidential attachments to employees who filed charges or their representatives upon request during the EEOC investigation.

The new procedures apply to all EEOC requests for position statements made to employers on or after January 1, 2016.

During the investigation of a charge, the EEOC may request that the employer submit a position statement and documents supporting its position. The statements should discuss the facts relevant to the charge of discrimination and identify the specific documents and evidence supporting the position. See my previous posts on how to draft a position statement here, here, and here.

If an employer relies on confidential information in its position statement, it should provide such information in separately labeled attachments. After the EEOC reviews the employer’s position statement and attachments on a specific charge, the EEOC staff may redact confidential information as necessary prior to releasing the information to a charging employee or his or her representative.

According to the EEOC:

The position statement should refer to, but not identify, information the [employer] asserts is sensitive medical information, confidential commercial or confidential financial information.  If the [employer] relies on confidential information in its position statement, it should provide such information in separate attachments to the position statement labeled “Sensitive Medical Information,” “Confidential Commercial Information” or “Confidential Financial Information,” or “Trade Secret Information” as applicable.  The [employer] should provide an explanation justifying the confidential nature of the information contained in the attachments.  

What type of information is “confidential” that should be put into separately labeled attachments? According to the EEOC, the employer should segregate the following information into separate attachments and designate them as follows:

  • Sensitive medical information (except for the charging employee’s medical information).
  • Social Security Numbers.
  • Confidential commercial or confidential financial information.
  • Trade secrets information.
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.
  • Any reference to charges filed against the employer by other charging parties.

The EEOC will review attachments designated as confidential and consider the justification provided.  Thus, employers should be judicious in what information they mark as “confidential” or “trade secrets information” and be able to explain why that information is designated that way. Disclosing such information to the EEOC without confidentiality or trade secret designation may later result in the company not being able to claim such information as “trade secret” under the Texas Uniform Trade Secrets Act.

Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to EEOC charges and investigations, and litigates employment disputes. For additional information, contact Leiza at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.

Timing Isn’t Everything in a Pregnancy Discrimination Claim

pregnant-worker-375x250The Fifth Circuit Court of Appeals recently joined the Second, Sixth, and Tenth Circuits in holding that where an employer shows that it had legitimate non-discriminatory reasons for firing a pregnant employee (e.g., non-performance), a mere fact that the employee was fired shortly after telling her employer that she was pregnant, doesn’t defeat employer’s stated reasons for termination.

In this case, the employee had a documented history of poor work performance and multiple write ups. Two months after she told her supervisor  she was pregnant, she was terminated for poor performance.  The employee argued that poor performance was just a pretext, but that she was really fired for being pregnant. The employer argued that pregnancy had nothing to do with it and that it had legitimate non-discriminatory for firing the employee.  The employee claimed that another management-employee told her during a social lunch that she was fired for being pregnant, but the court excluded this evidence as hearsay.  So, the only evidence of pregnancy discrimination that the employee could point to was the timing of her termination, which happened shortly after she told the employer she was pregnant.  The Fifth Circuit found that this fact alone was not enough to establish that the employer’s stated reasons for termination were just a pretext. Thus, theemployee must have other additional evidence to support its pregnancy discrimination claim.

TAKEAWAY: Where an employer shows it had legitimate non-discriminatory reasons for firing a pregnant employee, the fact that the employee was fired shortly after telling her employer she was pregnant, without more, won’t be sufficient to establish that employer’s stated reasons for termination were a pretext.

Leiza Dolghih represents both COMPANIES and EMPLOYEES in employment litigation and arbitration proceedings.  If you are facing an actual or a potential employment dispute, contact Ms. Dolghih for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.

 

Responding to an EEOC Discrimination Charge: A Guide for Texas Employers (Part III)

imagesIn Part I, I outlined the EEOC process of investigating a charge of discrimination, and in Part II, I described the steps that an employer should take in responding to an EEOC’s charge of discrimination or retaliation. Finally, in Part III, I address what business owners should consider specifically in drafting a position statement.

1. Remember that a position statement can be later used in litigation. What employer states in a position statement can be used in litigation, thus the employer should be able to back up its statements with documents and/or witness testimony and verify everything that is described in that statement.  A lot of times, an employer will provide one reason for taking an employment action in the position statement, and then provide another or additional reason or reasons during litigation.  Such discrepancies can be damaging to employer’s credibility and can make it impossible to obtain a summary judgment and an early dismissal of the suit.

2. A detailed position statement is better than a short response. While the charge form will often contain only a paragraph or two describing a discrimination or retaliation claim, the position statement should be much longer and address the nature of the employer’s business, past consistent employment decisions, and attach appropriate documents that support the employer’s positions (such as, for example, written warnings or discipline notes regarding the employee who was terminated; important emails or attendance records). You should also use the position statement to teach the agency about the nature of your business and how the employment decision that is discussed in the charge is consistent with your business goals. 

3. Keep the position statement confidential.  Information related to the EEOC investigation, the charge, and the employer’s position statement should be shared on a need-to-know basis. If possible, it should be kept within the HR department and not shared outside of it.  

4. Work with legal counsel. The charge can be a first step in the employee’s decision to bring a lawsuit against your business.  Any discrepancies in the position statement or failure to address allegations in a complete and open manner, can increase the chances of employee filing a lawsuit and prevailing on his or her claim.  If you decide to conduct an investigation on your own, at the very least you should have an attorney review the position statement before it is sent to the EEOC.

5. Respond in a timely matter and cooperate with the agency.  Providing a timely response and cooperating with the EEOC’s investigator regarding any addition requests for information is key in making sure the the investigation is completed as soon as possible.  Failure to respond or cooperate may result in an adverse decision.

The common mistakes that employers commit when responding an EEOC charge is ignoring the charge completely; not responding to the charge in a timely manner; providing a response that fails to address the allegations in the charge; or providing a response that relies on one person’s account of what happened, without conducting a proper investigation or verifying that person’s statements. What business owners should understand is that a charge can be the first step in a future lawsuit. Thus, failing to investigate the situation at the charge phase and verify all statements submitted to the EEOC, can end up costing the business a lot more time and money down the road, once the EEOC or the charging employee file a lawsuit arising out of the charge.

Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to EEOC charges and investigations, and litigates employment disputes. For more information, e-mail Leiza.Dolghih@GodwinLewis.com.

Responding to an EEOC Discrimination Charge: A Guide for Texas Employers (Part II)

imagesIn Part I, I outlined the EEOC process of investigating a charge of discrimination. In this part, I describe the steps that an employer should take in responding to an EEOC’s charge of discrimination or retaliation.

1.  Calendar the Deadlines.  Don’t think that because the employee’s complaint to the EEOC is “ridiculous” or “silly” in our eyes, that you don’t need to respond. You should always respond, no matter how trivial or ludicrous the complaint is in your opinion. So, don’t put the letter in a “I’ll-deal with-this-later” stack, but calendar the response date and other deadlines as soon as you receive the charge from the EEOC. Then, contact your HR department if you have one, and if not, consider consulting with an attorney who deals with labor and employment issues.

2.  Determine if the Charge Involves an EEOC “Hot” Issue.  Employers should take special note when a charge involves any of the six enforcement priorities highlighted in the EEOC’s Strategic Enforcement Plan (SEP), as that could mean that the case will get special scrutiny from the agency.  If the charge alleges a violation related to the areas identified in the SEP, the employer should be extra-careful in responding to it.

3.  Collect and Preserve Relevant Evidence.  Determine which people and departments within your company will have information relevant to the charge and then contact them and ask them to collect the relevant evidence. Independently, your IT department should also help you collect and preserve the relevant evidence behind the scenes.

4.  Schedule Interviews and Interview Relevant Witnesses. You will want to interview all the people mentioned in the charge, but also others who might have knowledge of relevant facts.  Depending on the size of the organization and allegations, you might have to start scheduling interviews right away.  You will have to decide whether you’d like your HR department, an independent third-party investigator, or an attorney to conduct such interviews.  You will also need to determine in which order to line up the relevant witnesses.

5.  Warn Against Retaliation.  In matters involving current employees, the employer should remind everybody interviewed or involved in the investigation, that they may not retaliate against the employee in any manner for having filed a charge.  Likewise, retaliation against anybody who testifies on behalf of the employee or assists the EEOC with its investigation is also prohibited.

6.  Establish a Point of Contact with the EEOC.  Designate one person within the organization who will be responsible for contact with the EEOC’s agent assigned to the charge.  This person should be professional, courteous, and somebody who is capable of and has the time to keep the EEOC agent apprised of any delays in the investigation. Cooperation and courteous working relationship with the EEOC is key!

7. Consider Mediation.  Mediation affords employers an opportunity to resolve the issues addressed in a charge without incurring the cost of a time-consuming investigation.  During this time, the agency investigation is placed on hold. In the event the matter does not settle, employer may be able to obtain additional information from the employee which may enable it to more effectively respond to the allegations in the charge.

8.  Draft the Position Statement.  See Part III for guidance on drafting a position statement.

9.  Respond to Requests for Information. EEOC’s requests for information (RIFs) will most likely be over broad, and it is up to the employer to negotiate the scope of production.  Negotiating to limit the time period or the geographic scope can help keep the costs down and limit the investigation to issues immediately at hand.  The deadline for production of documents is also often negotiable.

10.  Arrange for Employee Interviews.  The investigator will usually notify you of the names of the employees that he or she will want to interview.  You may be present during interviews with management personnel, but an investigator is allowed to conduct interviews of non-management level employees without your presence or permission. If the investigator asks the employer to arrange for such interviews, cooperation is the best approach.

Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to EEOC charges and investigations, and litigates employment disputes. For more information, e-mail Leiza.Dolghih@GodwinLewis.com.

 

 

Responding to an EEOC Discrimination Charge: A Guide for Texas Employers (Part I)

imagesOpening mail and finding out that an employee has filed a charge with the Equal Employment Opportunity Commission (EEOC) against your business is as far from a pleasant surprise as it gets. However, it happens to quite a few businesses each year.  In 2014, there were 88,778 charges filed with the EEOC, with Texas, Florida and California being the top three states. Overall, the most common claims were retaliation (42.8%), followed by race discrimination (35%) and sex discrimination (29.3%). Thirty percent of all charges included some sort of harassment allegations.

The EEOC Investigation Process

Typically, when an employee files a charge with the EEOC, the agency will notify the employer within 10 days that a charge of discrimination has been filed and will provide the employer with the name and contact information for the investigator assigned to the case.

During the investigation, the assigned EEOC agent will ask the employer and the employee who filed the claim to provide information, which the investigator will evaluate to determine whether unlawful discrimination has taken place. The agent may ask the employer to provide any or all of the following:

  • submit a statement of position;
  • respond to a Request for Information (RFI);
  • request an on-site visit; and/or
  • provide contact information for or have employees available for witness interviews

If the charge was not dismissed by the EEOC when it was received, that means there was some basis for proceeding with further investigation. There are many cases where it is unclear whether discrimination may have occurred and an investigation is necessary. Such investigation, thus, presents an opportunity for an employer to state any facts that the employer believes will show the allegations are incorrect or do not amount to a violation of the law.

The Employer’s Role in the Investigation

According to the EEOC, employers should do all of the following to help with the investigation:

  • Work with the investigator to identify the most efficient and least burdensome way to gather relevant evidence.
  • You should submit a prompt response to the EEOC and provide the information requested, even if you believe the charge is frivolous. If there are extenuating circumstances preventing a timely response from you, contact your investigator to work out a new due date for the information.
  • Provide complete and accurate information in response to requests from your investigator.
  • The average time it takes to process an EEOC investigation is about 182 days.  An undue delay in responding to requests for information extends the time it takes to complete an investigation.
  • If you have concerns regarding the scope of the information being sought, advise the investigator. Although EEOC is entitled to all information relevant to the allegations contained in the charge, and has the authority to subpoena such information, in some instances, the information request may be modified.
  • Keep relevant documents. If you are unsure whether a document is needed, ask your investigator. By law, you are required to keep certain documents for a set period of time.

The Results of the Investigation

Once the investigator has completed the investigation, the EEOC will make a determination on the merits of the charge.

  • If the EEOC determines that there is no reasonable cause to believe that discrimination occurred, it will send the employee a letter called a Dismissal and Notice of Rights that tells the employee that s/he has the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter. The employer will receive a copy of the letter as well.
  • If the EEOC determines there is reasonable cause to believe discrimination has occurred, both employer and employee will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to join the agency in seeking to resolve the charge, through an informal process known as conciliation.
  • Where conciliation fails, the EEOC has the authority to enforce violations of its statutes by filing a lawsuit in federal court. If the EEOC decides not to litigate, the employee will receive a Notice of Right to Sue and may file a lawsuit against the employer in federal court within 90 days.

Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to EEOC charges and investigations, and litigates employment disputes. For more information, e-mail Leiza.Dolghih@GodwinLewis.com.