Last month’s Cessna Aircraft settlement with the EEOC brings into focus many of the reasons I redirected my life’s work in rehabilitation and employment testing to focus on the challenges and benefits presented by Title I of the ADA.
As I have said in many speeches, online courses and blogs, Title I of the amended ADA (see 42 U.S.C. § 12112 (d) medical examination and inquiries) is the foundation each one of us needs to understand if we are dedicated to passing the civil rights granted to us under the law to our employees, whether past, present or future. We cannot fall back on old job analysis and testing practices of the Uniform Guidelines on Employee Selection Procedures (UGESP). We must move our best practices into today’s world of federal court decisions related to employment testing. We must understand why yesterday’s practices of functional capacity evaluation and post-offer testing based on insufficient job demands data is an open invitation to a plaintiff-driven employment discrimination charge.
The EEOC’s lawsuit charged that Wichita, Kansas-based Cessna failed to make the required individualized assessment of the ability of conditional employees to perform the essential functions of jobs but instead relied on workers’ compensation standards. The violations were found in Milwaukee and Wichita based on what appeared to be a company-wide policy. In one case, Cessna required a conditional employee to meet national maximum medical improvement standards to be eligible to work, despite the employee providing medical documentation that he could work without restriction. Cessna rescinded the job offer of this employee on the basis that he would not reach maximum medical improvement within a specified time period. In another case, EEOC said Cessna withdrew its job offer from an employee with a history of workers’ compensation restrictions without regard for his subsequent improvement and ability to provide medical documentation of his ability to work without restriction.
The consent decree settling the suit, signed by U.S. District Judge Lynn Adelman, requires Cessna pay two former conditional employees a combined $167,500, prohibits any such discrimination in the future, and requires reporting to EEOC for two years. Cessna must also create a new ADA policy that explicitly states that applicants are not required to meet maximum medical improvement or have a permanent disability prior to being eligible for an accommodation. The decree also limits additional medical inquiries required for those conditional employees with impairments who have provided medical documentation of ability to work without restriction, and ties additional medical inquiries to the essential functions of the job.
These types of practices are so outdated that it comes as no shock that EEOC also required Cessna to train its human resources and health services employees on disability discrimination, reasonable accommodation and retaliation under the ADA, as well as on the interplay of workers’ compensation laws and the ADA. A Cessna executive-level employee must personally address the staff before every training session with a message that Cessna takes its obligation under all equal employment opportunity laws seriously and will state Cessna’s non-retaliation policy.
The Cessna settlement would have far reaching value if it stood as a warning to companies that are far behind in their understanding and implementation employment law best practices. Whether it is hiring and retention policies and procedures, workers’ compensation medical examinations, or reasonable accommodation processes, let Cessna serve as a tipping point for your company: invest in understanding Title I and its many benefits to employers. And keep in mind that it is the law.
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