EEOC-Initiated Litigation - 2022 Edition

34 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP demonstrate that the perceived impairment was a ‘but-for’ cause of the employer's adverse decision. ” 246 Accordingly, the Sixth Circuit held that it was no defense for the employer to argue that it could not have regarded the charging party as having a disability because her anxiety did not affect her ability to do her work. The magnitude of the impairment is not controlling; the employer’s evidence did not “necessarily rebut the notion that [employer] could have ‘perceived’ her ‘as having an impairment’ and fired her because of that perceived limitation, particularly in light of the updated standard under the ADA.” 247 c. Recent Cases Addressing What Constitutes Discrimination “On The Basis Of Disability” Other ADA lawsuits hinge on what constitutes “discrimination on the basis of disability.” Those determinations are often fact-intensive and require courts to weigh facts around the timing of critical employment events and an employer’s imputed knowledge at those times. For example, in EEOC v. Cracker Barrel Old Country Store, Inc. , 248 the U.S. District Court for the District of Maryland denied summary judgment to an employer on the basis of the suspicious timing of events related to a failure to hire. In that case, the EEOC alleged that the employer refused to hire the charging party because he was hearing impaired. 249 The employer argued that it did not refuse to hire the charging party, but rather had delayed its consideration of hiring, or, alternatively, that his disability did not play a role in the employer’s decision not to hire him. 250 The court disagreed, holding that the facts of the case would allow a factfinder to conclude that the charging party was not selected for hire because of his disability. Among other things, the court found that the charging party’s application was “stonewalled” after the employer learned of his disability, that it had not kept interview dates and did not respond to follow-up phone calls, and the fact the employer “offered to interview [charging party] only after he filed his discrimination charge with the EEOC . . . may be viewed by the factfinder as a cover-tracks maneuver rather than mere forgivable ‘delay.’” 251 Some courts also consider timing a critical element to determining whether an employee can be “regarded as” having a disability. 252 Similarly, employers should be mindful of the EEOC’s focus on the use of pre- job-offer questionnaires. The EEOC may take the position that they may run afoul of the ADA. Indeed, an employer does not have to take an affirmative act of turning an applicant away because of their disability. The EEOC may claim that employers are liable for ADA discrimination even when an applicant refuses to apply. 253 246 Id. at *4 (quoting Babb v. Maryville Anesthesiologists P.C. , 942 F.3d 308 (6th Cir. 2019); Lewis v. Humboldt Acquisition Corp. , 681 F.3d 312, 321 (6th Cir. 2012) (citations and quotations omitted)). 247 Id. at *5 (quoting 42 U.S.C. § 12102(3)(A)). 248 EEOC v. Cracker Barrel Old Country Store, Inc. , No. 8:18-CV-2674, 2020 WL 247305 (D. Md. Jan. 16, 2020). 249 Id. at *3. 250 Id. at *3-4. 251 Id. at *3 (emphasis in original). 252 See EEOC v. STME, LLC , 938 F.3d 1305, 1316 (11th Cir. 2019) (holding that the “regarded as having” prong of the ADA requires that a disability be a present physical or mental impairment: “[i]n ‘regarded as’ cases, a plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have such an impairment at the time of the adverse employment action,“ and that that prong did not extend to an employer’s belief that an employee might contract or develop an impairment in the future); EEOC v. Amsted Rail Co. , 280 F. Supp. 3d 1141, 1153 (S.D. Ill. 2017) (holding that an employer was liable under the ADA for denying individuals positions based merely on their potential to suffer future medical injuries due to abnormal results from a nerve conduction test, explaining that the test “does not indicate an individual's contemporaneous inability to perform the chipper job but only a prospective, future threat to his health if he were to perform the job,” and that the restrictions imposed by the employer were “based on a generalized assumption about an abnormal [test] result rather than ‘an individualized assessment of the individual and the relevant position,’ as required under the ADA”); EEOC v. McLeod Health, Inc. , 914 F.3d 876, 882 (4th Cir. 2019) (noting that the employer knew that the charging party was able to perform the essential functions of her job for 28 years, even though she suffered from limited mobility and sometimes fell at work, but holding that a reasonable jury could conclude that it was not reasonable for the employer to believe that the charging party was a direct threat to herself on the job simply because she fell multiple times recently and because she looked groggy and out of breath). 253 For example, in EEOC v. Grisham Farm Prods., Inc. , 191 F. Supp. 3d 994, 997 (W.D. Mo. 2016), the court held that employers may make an “acceptable inquiry” at the pre-offer stage into “the ability of an applicant to perform job-related functions,” however, both the ADA’s legislative history and implementing regulations make clear that such inquiries should not be phrased in terms of disability. Here, the employer required job-applicants to fill out a health history form before they were considered for the job, even if the “applicant” never actually applied for the job. The court held that it was irrelevant that the charging never actually filled out a health history form or applied for a position, since the employer’s policy could deter job applications from those who are aware of the discrimination nature of the policy and were unwilling to subject themselves to the humiliation of explicit and certain rejection.