The EEOC sometimes tries to test out new retaliation theories to trip up employers. Its most recent attempt didn’t work.
Recent case: The EEOC investigated claims that Product Fabricators, a Pine City manufacturer, discriminated against employees who had been injured and needed accommodations to return to work. Several employees cooperated with the investigation, meeting with EEOC investigators and discussing their injuries, accommodations and other disability-related matters.
Adam, one of the employees who cooperated, had hurt his shoulder at work. He requested numerous accommodations, including time off for physical therapy and recuperation. Each time he requested an accommodation, he got it.
Shortly after the EEOC interviewed him, Product Fabricators found out. Still, Adam kept working. At one point, he did tell a supervisor that he might have hurt his other shoulder and might need surgery, but didn’t provide any specifics.
A year later, the company found out that the EEOC was going to file suit. Adam was terminated the next day.
The EEOC then added retaliation to its lawsuit, arguing that Adam had been retaliated against because he had cooperated a year earlier. Ordinarily, a year-long gap is too long to show a correlation between protected activity and punishment. The EEOC claimed the protected activity was “revived” by the lawsuit filing.
The court threw out the retaliation claim. It said that the EEOC’s novel theory did not hold water. (EEOC v. Product Fabricators, et al., No. 11-2071, DC MN, 2013)
Final note: The court also dismissed EEOC failure-to-accommodate claims involving Adam. He received every accommodation he requested. In addition, telling his supervisor he might need surgery wasn’t a direct accommodations request. Therefore, the court said the company hadn’t refused to engage in the interactive process when it didn’t pursue further time-off discussions.
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- Erratic attendance can disqualify employee from ADA protection
- Make sure all medical tests you require are truly job-related and necessary
- Performance Reviews
- Check for retaliation before disciplining employee who requested ADA accommodations
- Don't fear shifting to 'Get-Tough' reviews, but be consistent