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July 24, 2024
In March, we posted a Lessons Learned article warning employers not to base employment decisions on stereotypes and advising employers to use objective evidence to individually assess an applicant’s ability to perform the essential functions of the job and to provide reasonable accommodations. In that article, we discussed a lawsuit that the U.S. Equal Employment Opportunity Commission (EEOC) filed against Didlake, Inc., a government contractor that provides janitorial and maintenance employees to federal worksites throughout Virginia, Maryland, and the District of Columbia.
In the lawsuit, the EEOC alleged that Didlake, a nonprofit, failed to provide communication accommodations – like American Sign Language (ASL) interpreters – for deaf and hard-of-hearing employees. Specifically, Didlake held mandatory monthly meetings covering important safety topics, including instructions for using cleaning chemicals and equipment and, during the pandemic, COVID-19 protocols. For some deaf or hard-of-hearing workers, Didlake never or rarely provided qualified interpreters. For others, Didlake failed to consistently provide such interpreters. For others, Didlake provided ineffective interpreters. And for others, Didlake provided handouts that were difficult to understand or did not convey all of the material discussed at the safety meetings. Didlake allegedly also failed to provide interpreters for periodic training and one-on-one meetings with management, including meetings to discuss discipline.
The EEOC further alleged that Didlake maintained a policy of terminating employees who requested medical leave but did not qualify for leave under the Family and Medical Leave Act (FMLA), despite the availability of unpaid leave as a reasonable accommodation. Specifically, Didlake allegedly terminated the employment of one employee because she was not FMLA-eligible when she requested leave at the end of a high-risk pregnancy, including to undergo and recover from an emergency caesarian section necessitated by excessive fetal growth and gestational diabetes. Didlake allegedly terminated a second employee because she was not FMLA-eligible when she requested one month of leave to undergo and recover from treatment for severe anemia.
The EEOC also alleged that, after employees exhausted FMLA leave or when they were ineligible for such FMLA leave, Didlake required them to be “100-percent healed” (i.e., present a Fitness for Duty Certification without restrictions) before they were permitted to reapply for employment, despite the fact that qualified individuals with disabilities are entitled to reasonable accommodations. Specifically, Didlake allegedly terminated the employment of an employee who was not FMLA eligible but required a month of leave after being briefly hospitalized for a psychiatric disorder, and then Didlake refused to rehire her because her condition was deemed to be ongoing. Didlake allegedly terminated the employment of another employee because she required several days of medical leave for a hospitalization and was not FMLA eligible, and then Didlake refused to rehire her with the accommodations that she requested due to a recurrence of her cervical cancer.
This alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodations to employees with disabilities unless doing so poses an undue hardship.
The EEOC recently reported that it resolved the lawsuit against Didlake with a five-year consent decree. The decree requires Didlake to pay $1,017,500 to two employees, the estate of a third individual, and to two additional groups of claimants – (1) current and former maintenance and janitorial employees who are deaf or hard-of-hearing and were denied communication accommodations; and (2) former employees who were terminated because they required medical leave but were not eligible for FMLA leave. In addition to the monetary relief, Didlake also must update and supplement its existing policies relating to leave and reasonable accommodations, provide training to its management on the ADA, and educate all employees on how to request reasonable accommodations.
The case is EEOC v. Didlake, Inc., No. 8:23-cv-2618 (D.Md.)
Employers: You must engage in the interactive process with employees who are deaf or hard-of-hearing and provide reasonable accommodations – like unpaid medical leave (even when an employee is not eligible for leave under the FMLA), temporary reassignment of nonessential functions, physical job aids, and ASL interpreters or other communication accommodations – so long as those accommodations do not pose an undue hardship (a high bar) on your business.
*Special thanks to Lisa Chapman, our paralegal, for her contributions to this article.
The author of this article, Patricia Tsipras is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, Virginia, Maryland, the District of Columbia, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
