EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 35 The EEOC has been successful in some recent cases establishing that an employment policy itself is discriminatory. For example, in EEOC v. UPS Ground Freight, Inc. , 254 the EEOC challenged an employer’s collective bargaining agreement, which provided that commercial drivers whose licenses were suspended or revoked for non-medical reasons, including convictions for driving while intoxicated, would be reassigned to non-driving work at their full rate of pay, while drivers who become unable to drive due to medical disqualifications, including individuals with disabilities within the meaning of the ADA, were provided full-time or casual inside work at only 90% of their rate of pay. 255 The EEOC succeeded in convincing the court that the language of the collective bargaining agreement itself established a prima facie case of a discriminatory policy under the ADA because it paid drivers disqualified for medical reasons less than what it paid drivers disqualified for non-medical reasons. 256 The District Court granted a permanent injunction against the employer, holding that “[i]t is immaterial whether medically disqualified drivers have other options; paying employees less because of their disability is discriminatory.” 257 On March 2, 2020, the court denied cross motions for summary judgment, holding that the parties had presented insufficient evidence to conclude as a matter of law, among other things, that the charging party had an impairment that substantially limited major life activities. 258 In that decision, the court first considered the nature of the charging party’s disability. By then, the EEOC had abandoned its claim that the charging party was actually disabled at the time that he suffered an adverse employment action. Instead, the EEOC claimed that he either had a record of disability or that the employer regarded him as disabled at that time. 259 The charging party had suffered a stroke that required hospitalization and left him with weakness and numbness on his right side. 260 The court first held that “no reasonable jury could conclude” that the charging party was not impaired in the past because it was undisputed that the charging party “had a stroke that affected his neurological and cardiovascular systems, caused his doctor to place a work restriction on him for a period of time, and required physical therapy.” 261 The court could not decide on the evidence available, however, whether that impairment substantially limited the major life activities of self-care, eating, writing, lifting, and gripping; that decision was left for the jury. 262 The EEOC sought reconsideration of the court’s ruling, arguing, among other things, that the District Court had erred in deciding that it had not met the “awareness” prong of the “regarded-as” disability claim . 263 The court applied the reasoning of EEOC v. STME to hold that in regarded-as discrimination claims, 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. Although STME and other cases had involved claims of possible future impairment, the District Court found that the same reasoning should apply to perceptions of past impairments that are not ongoing. 264 “While the court does not consider whether [charging party’s] impairment was substantially limiting or whether [employer] viewed it as substantially limiting on the regarded-as claim, it must find that [employer] perceived a current impairment – perception of a past impairment that has ended will not do.” 265 254 EEOC v. UPS Ground Freight, Inc. , 319 F. Supp. 3d 1237 (D. Kan. 2018). 255 Id. at 1240-41. 256 Id. at 1241. 257 Id. at 1242. Moreover, it was unnecessary for the court to perform a case-by-case impact analysis of individuals who may (or may not) have been harmed by the policy because a prima facie case of liability for a pattern-or practice case does not require the EEOC to offer evidence that each individual who may seek relief was a victim of the policy; the EEOC must only “show that unlawful discrimination is part of the employer's ‘standard operating procedure.’” Id. 258 EEOC v. UPS Ground Freight, Inc. , 443 F. Supp. 3d 1270 (D. Kan. 2020). 259 Id. at 1281. 260 Id. at 1276. 261 Id. at 1283. 262 Id. at 1284-85. 263 EEOC v. UPS Ground Freight, Inc. , No. 17-CV-2453, 2020 WL 1984293 (D. Kan. Apr. 27, 2020). 264 Id. 265 Id.