Imagine your company has 211 operating locations across the United States and each location is staffed by at least 10 front line supervisors. These 2,000+ supervisors have the opportunity each day to unknowingly create a 4-year-long battle with the EEOC. That’s over 3,500,000 hours in which a supervisor, acting in good, logical faith can violate the basic principles of ADA Title I. That is a huge liability.
This imaginary story is reality. At a recent federal jury trial between the EEOC and Old Dominion Freight Line (Civil Action No. 2:11-CV-02153-PKH in U.S. District Court for the Western District of Arkansas), the EEOC Regional Attorney Faye A. Williams said, “There is always a lesson learned from trials. This case demonstrates the importance of employers training their management officials on the company’s obligations, including reasonable accommodation, under the ADA. In this case, a nationwide trucking company with thousands of drivers failed to train its employers on a key requirement under the ADA – reasonable accommodation.”
One of the most disconcerting aspects of this case is that the employee and Old Dominion staff at the local level seemed to act in logical, good faith. One of their truck drivers self-reported alcohol abuse. In and of itself this is an honorable action. The Old Dominion staff then referred the driver for substance abuse counseling. Again, an above-board, honorable reply to an individual’s responsible request for assistance.
The lessons to be learned from this situation may lie in any one of four preventable elements: staff training in the reasonable accommodation process (including knowing when a request for accommodation is being received), knowledge of the rules against inflexible accommodation policies (perhaps understandably not known at the local level), the value of a high-level, real-time local decision review mechanism, the availability of a non-combative response to an EEOC or plaintiff attorney Request for Information process.
- Public and private reports of Title I settlements make it unmistakably clear: staff training in the reasonable accommodation process, including knowing when a request for accommodation is being received, is that ounce of prevention we all seek. Basic training in how to listen for a request, coupled with knowledge of questions not to ask and what to do once a request is received, will eliminate about 1/3 of cases that end up in confrontation. Not training your managers and supervisors could cost you.
- Policies that limit either the amount of leave an employee will be granted, the amount of money that will be spent on an accommodation or demands that an individual must be “100%” before returning to work are each an example of an inflexible and illegal Title I policy. Guidance on the rules against inflexible accommodation policies, which perhaps is understandably not known at the local level, is readily available here. Keep your policies as flexible as possible.
- The benefit of real-time review and monitoring of local management of reasonable accommodation requests cannot be overlooked. While it is not feasible to have every request for accommodation made at one central location or by a centralized management committee, it is feasible to have a real-time system for recording, reporting, managing, and monitoring reasonable accommodation requests. Using boiler-plate letters or a centralized committee to respond to requests for accommodation can be time consuming and ineffective. If your company or agency does not have a streamlined, easy to use policy/process to collect and recover information about each request for accommodation, consider using a tool such as Reasonable Accommodation Management Software (RAMS) to help easily manage and track your data. Efficient and thorough documentation is key.
- Even when the EEOC thinks a violation of the law may have occurred, or when an employee receives a Right to Sue letter, you still have the opportunity to prevent potential damage through good management of your response. Responding appropriately to an EEOC Request for Information or plaintiff attorney Right-to-Sue in a non-combative manner is a critical. Your goal is mediation and a swift resolution of any possible ADA Title I violation. You will want to have the ability to quickly prepare a thorough record of how you received and responded to a request for accommodation. This is a major first step toward a positive outcome. Being able to communicate your response in a non-combative way is the second step toward a positive outcome. Do not skip this step! The last thing you want to do when attempting to mediate or mitigate an ADA Title I mistake is to take a “tough guy” stance. Showing intention to comply with the law, combined with solid and timely documented information about your attempts to comply should be the primary focus of your discussion with the EEOC. Any response that appears to be inflexible or combative will not serve you well.
My recent presentation at the DMEC Compliance Conference, Anatomy of an EEOC Charge: An Insider’s View outlines step by step what happens when an EEOC action is pending. Gaining an insider’s view of the EEOC’s investigation process along with thorough training of your front line managers and supervisors is a solid step forward in becoming ADA Title I compliant.
To learn more or to register for our Reasonable Accommodation training: