EEOC-Initiated Litigation - 2022 Edition

30 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP the harassment was based on sex because [supervisor] is not gay and did not make explicit or implicit proposals of sexual activity.” 206 Relying on Bostock , the Fourth Circuit held that “a plaintiff may prove that same-sex harassment is based on sex where the plaintiff was perceived as not conforming to traditional male stereotypes.” 207 The court also instructed the District Court to further examine whether the supervisor’s alleged physically abusive behaviors, such as “choking and slapping” the charging party, though not overtly sexual, “were part of a pattern of objectionable, sex-based discriminatory behavior. ” 208 3. Developments In Disability Discrimination Law Lawsuits alleging discrimination under the ADA are consistently the most frequently filed types of EEOC lawsuits. The ADA prohibits employers from discriminating against “qualified individual[s] on the basis of disability. ” 209 To establish a prima facie case of discrimination under the ADA, the EEOC needs to establish that: (1) the individual has an ADA qualifying disability; (2) the individual is qualified for the job; and (3) the individual was discriminated against on the basis of the disability . 210 Accordingly, the best way for employers to guard against EEOC-initiated ADA litigation is to develop an understanding of how the EEOC interprets these elements. In 2020, the COVID-19 pandemic quickly became the most important topic in ADA litigation for the EEOC. Indeed, the EEOC’s technical guidance for employers addressing issues arising due to COVID-19 focuses primarily on issues under the ADA and reasonable accommodation obligations for employers . 211 COVID-19 has also given rise to substantial employment litigation across the country. Many of those cases have alleged various theories of discrimination under state law that touch on principles of disability discrimination. However, employees who wish to bring an ADA claim against their employer must first exhaust their administrative remedies by filing a charge with the EEOC. The EEOC then investigates the charge and either brings a lawsuit on the charging party’s behalf or issues a right to sue letter that allows the charging party to bring those claims as a private litigant in federal court. So although there is bound to be a significant uptick in ADA litigation over the next few months, the full scope of the impact that COVID- 19 will have on the development of disability discrimination law will not be fully known until those issues filter through the charge handling process and into the federal courts. a. Recent Decisions Interpreting The ADA’s Requirements Regarding “Reasonable Accommodations” And “Qualified Individuals” One form of discrimination under the ADA is a failure to provide reasonable accommodations to employees with disabilities. What constitutes a reasonable accommodation is one of the most frequently and hotly contested issues in ADA litigation, often giving rise to seemingly conflicting case law across the country. This issue is sometimes intertwined with the concept of a “qualified” individual” under the ADA. Such individuals are those who meet the basic requirements of an employment position, and who can perform the essential functions of that position with or without reasonable accommodation. Despite this well-worn formula for assessing the need for a reasonable accommodation, in 2021, a court agreed with the EEOC’s argument that the need for a reasonable accommodation does not always depend on the requirements of a position. In EEOC v. Kaiser Foundation Health Plan of Georgia, Inc. , 212 the U.S. District Court for the Northern District of Georgia held that where an employer had an independent duty to provide an accommodation, there was no need for the EEOC to establish that it is needed to perform the 206 Id. at *5. 207 Id. at *6. 208 Id. 209 42 U.S.C. § 12112(a). 210 See , e.g. , Gowesky v. Singing River Hosp. Sys. , 321 F.3d 503, 511 (5th Cir. 2003), cert. denied 540 U.S. 815; Holbrook v. City of Alpharetta, Ga. , 112 F.3d 1522, 1526 (11th Cir. 1997). 211 U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (last updated Sept. 8, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada- rehabilitation-act-and-other-eeo-laws. 212 EEOC v. Kaiser Foundation Health Plan of Georgia, Inc. , No. 1:19-CV-5484, 2021 WL 3508533 (N.D. Ga. Aug. 9, 2021).

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