Systemic discrimination involves a pattern or practice, policy, or class case where the alleged  discrimination has a broad impact on an industry, profession, company or geographic area.   The Equal Employment Opportunity Commission (“ EEOC”)  usually files 200-300 lawsuits per year, and it is expected that these numbers will hold steady or increase into the future.  Given the limitations on its resources, the EEOC has always taken the position that it should file suit in cases with an opportunity to make the biggest impact on the largest number of employees or to address and focus on new and emerging theories of liability.

The case of  EEOC v. Dillard’s is an example.   Dillard’s Inc., a national retail chain, agreed to pay $2 million and committed to extensive, company-wide injunctive relief to settle a class action disability discrimination lawsuit.  At issue was Dillard’s longstanding national policy and practice of requiring all employees to disclose personal and confidential medical information in order to be approved for sick leave.  The policy at issue required employees to disclose the exact nature of their medical conditions in order to be approved for sick leave rather than simply providing a doctor’s note confirming that the absence was due to a documented medical concern.  According to the allegations in the suit, the employee representing the class was terminated after missing only four days of work.  She and her co-workers were allegedly fired in retaliation for refusing to provide further details of their medical conditions.  The court ruled that Dillard’s policy was facially discriminatory under the Americans with Disabilities Act (“ADA”).

The EEOC also took great issue with other aspects of Dillard’s handling of employee medical leave, specifically a policy limiting the amount of leave an employee could take without engaging in an assessment of whether additional leave might be a reasonable accommodation under the ADA.   The  claim was that Dillard’s terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed by the company policy in violation of the ADA.

Previously, in the case of EEOC v. AutoZone from the Central District of Illinois the EEOC was successful in winning significant damages for an employee with a disability claiming that the employer discriminated against him by forcing him to perform work that was outside of his medical restrictions and causing an exacerbation of his medical problems.  Following the verdict, the EEOC sought an injunction against the employer precluding it from engaging in similar behavior in the future.  The court issued this injunction and also required all of the AutoZone locations in central Illinois to report all requests for accommodation by employees to the EEOC for a period of three years and to maintain records concerning how the company responded to each request.  This judgment was affirmed by the Seventh Circuit Court of Appeals on February 15, 2013.

Employers are well advised to consider the interplay between all aspects of disability and leave law including FMLA, ADA and worker’s compensation and pay particular attention to whether the company policies and practices might have a disparate impact on disabled employees.  The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act is a very useful tool for human resource directors and other managers to keep close at hand.   The risks of failing to have clear policies which are actually followed by all who might make decisions about employee leave and restricted duty are significant and there are many traps for the unwary.