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November 15, 2016

Updated August 2018

(keywords: essential function job analysis, Americans with Disabilities Act, title I, human resource, reasonable accommodation, employment testing, cognitive, physical, disability)

Three years ago, I coached a physical therapist through her effort to convince Georgia Power to change its ways. Our suggested plan began with preparing an essential function job analysis (EFJA) for a handful of physically challenging positions. The EFJA is the basis for all hiring, retention, and termination decisions complicated by questions about physical or cognitive disability.

This week’s $1,600,000 settlement of a basket of employment disability charges against the company confirms the cold shoulder that my client’s efforts had received.Reading the litany of actions (more than 18 in total) required by the consent decree reminds each of us that compliance with Title I of the Americans with Disabilities Act is a required best practice when doing business. The cost of ignoring the spirit and intent of one of the pillars of our employment civil rights laws regarding time, money, and reputation is high.

The list of charges, in this case, reads like a final examination from any one of the ADA Title I courses I teach and the webinars I offer. EEOC filed their suit in 2013, charging that Georgia Power Company violated federal law by refusing to hire applicants and firing employees based on perceived disabilities or actual disabilities, rather than on the individual’s ability to safely and effectively execute the physical and cognitive demands of the job being sought or held. According to EEOC’s complaint, in some cases, Georgia Power disregarded the opinions of treating physicians who supported the employees’ and applicants’ ability to work. Rather than independently evaluating each employee or applicant (a service provided by my client), Georgia Power simply refused to hire disabled applicants or return employees to work following a medically-related absence, the agency alleged. EEOC said that in some cases, Georgia Power automatically disqualified both current employees and job applicants under its corporate policies related to seizure, drug use, and alcohol use without individually assessing the employees’ or applicants’ ability to work.

The problem with this type of case is the overarching nature of the breach:

The charge(s) do not rest on a single non-compliance issue. It is not the result of an action of a single professional discipline (i.e., physicians or therapists conducting medical examinations). The Americans with Disability Act is 26 years old: where have the company’s legal counsel, medical practitioners (physicians, occupational therapists, and physical therapists), and human resource professional been? In total this group of professionals allowed the company to transgress in at least seven different sections of the code. And who knows what awaits Georgia Power in the area of reasonable accommodation practices?

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against employees and applicants who have actual disabilities, have a record of a disability, or whom the employer perceives as having an actual disability. EEOC filed suit (EEOC v. Georgia Power Company, Civil Action No. 1:13-cv-03225-AT) in U.S. District Court for the Northern District of Georgia, Atlanta Division after first attempting to reach a pre-litigation settlement through its conciliation process.

The corrective actions agreed to by Georgia Power are not exotic or difficult to implement. Change begins with a strong message and observable support from the C-suite.

(Updated August 2018)


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