Publications: EEOC: Terminating disabled employees may be illegal

Some employers maintain policies or practices of terminating disabled employees who are unable to fully return from a leave of absence after a time period, usually six months to a year. Indeed, some employers and their employees' unions include such policies as part of their collective bargaining agreements.

The Equal Employment Opportunity Commission (EEOC), which is the federal agency that enforces federal anti-discrimination laws, including the Americans with Disabilities Act (ADA), takes a dim view of some of these policies. That was evident from the recent case, filed in the U.S. District Court for the Northern District of Illinois, of EEOC v. Supervalu Inc. and Jewel-Osco, No. 09 CV 5637.

The EEOC sued SUPERVALU and its operating unit, Jewel-Osco, in September 2009. It alleged that the defendants had been violating the ADA since November 2003 by one, prohibiting disabled employees who were on defendants' one-year paid disability leave, or eligible for it, from returning to work unless they could return without any accommodations to full service with no physical or mental restrictions and then terminating these employees at the end of the one-year leave period and, two, prohibiting disabled employees who were not injured on the job from participating in the defendants' 90-day light duty program. The EEOC alleged that more than 100 employees or former employees were affected.

The litigation, and particularly discovery, proceeded contentiously. The parties filed and briefed some nine discovery related motions. This prompted the somewhat exasperated magistrate judge to comment, in a Dec. 7, 2010, order resolving three of the discovery motions, that: "This court is disappointed that the parties have chosen to focus their time and other resources on protracted discovery disputes rather than on settlement negotiations."

One of the key discovery disputes between the parties pertained to the EEOC's attempt to inspect six of the defendants' stores under Federal Rule of Civil Procedure 34. The EEOC acknowledged that it had the burden of establishing that the 100 or more claimants on whose behalf it was suing could have returned to work. It retained as a consultant an engineer from the University of Illinois at Chicago who specializes in fashioning or finding accommodations that might allow disabled employees to return to work. The EEOC's plan was to have the engineer measure and record the dimensions at the six stores, determine the feasibility of the claimants' possible return to work, with or without an accommodation, and then possibly identify the engineer as a testifying expert.

SUPERVALU and Jewel-Osco objected, claiming that the EEOC's request was not reasonably calculated to lead to the discovery of admissible evidence because there was no showing that an inspection of the stores in 2010 would be indicative of the tasks that the claimants performed in the past and, in some cases, years in the past. The defendants also complained that the EEOC's Rule 34 request was impermissibly vague.

The magistrate judge disagreed, granting in part the EEOC's Motion To Compel and allowing in part the inspection. It first noted that a Rule 34 request to inspect a premises "poses a very low hurdle," citing EEOC v. Libby-Owens-Ford Co., 93 F.R.D. 370, 371 (N.D. Ill. 1981). Indeed, noted the court, Rule 34 only requires that the EEOC seek information consistent with Rule 26(b), which allows "discovery regarding any nonprivileged matter that is relevant to any party's claim or defense …" Here, the court reasoned, the engineer's inspection might help the EEOC determine whether certain modifications or assistance devices might be feasible in assisting the claimants, or some of them, to return to work. As for the defendants' argument that circumstances over the years may have changed, the court concluded that this point goes to the weight of any evidence generated by the site visits and could be argued before the trier of fact.

The court also dispatched the defendants' claim that the EEOC's Rule 34 request was too vague, noting that the EEOC in correspondence to defense counsel and in its Motion To Compel added more specificity. The court did state that the parties' "efforts to agree on the parameters of site visits have, at best, been far less than whole-hearted."

The magistrate judge then set out detailed ground rules for the inspections. He allowed one EEOC attorney, with the engineer, to inspect up to six of the defendants' retail facilities, to be agreed upon by the parties. At least one claimant must have worked at any location to be inspected. A defense attorney could accompany the engineer and the EEOC attorney on the inspections, but could not exhibit "any behavior that might unreasonably inhibit" the inspections. The EEOC and the engineer were prohibited from interacting with or filming or photographing the defendants' employees or customers. In light of a looming discovery cut off date, the court ordered that the inspections be completed within six calendar days of its order.

Obviously few employers are enthusiastic about having the EEOC or a former employee's attorney inspecting their premises. But apart from the discovery skirmishes, this situation as it pertains to the dispute's actual merits serves a cautionary tale to employers who maintain rigid return-to-work protocols. The ADA requires, as this case reminds, reasonable accommodation that does not amount to an undue hardship. Hard-and-fast rules contrary to this principle can result in unwanted litigation.

As we go to press: SUPERVALU had agreed to the entry of a consent decree in the case requiring it, among other things, to pay $3.2 million to 110 former employees affected by the leave policy and to revise the leave policy.

Reprinted with permission of The Law Bulletin Publishing Company.