For those of you who work in HR, what do you do when you learn that an employee has filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission alleging a violation of the Americans with Disabilities Act?
Raise your hand if the answer is not publicizing details of the charge, including the employee’s name, union affiliation, and information about the medical restrictions on his ability to work, in a letter to 146 members of his union local.
According to a recent EEOC press release, one Philadelphia employer needs to keep its hand down.
Here are the details, according to the press release:
According to the EEOC’s suit, an electrician hired by Day & Zimmermann to work during the shutdown of a Waterford, Conn., power plant filed a disability discrimination charge with EEOC under the Americans with Disabilities Act (ADA). After that, the company publicized details of the charge, including the employee’s name, union affiliation, and information about the medical restrictions on his ability to work, in a letter to 146 members of his union local. By publicizing the employee’s charge in this manner, Day & Zimmermann retaliated against the employee and interfered with the rights of workers and witnesses to communicate freely with the EEOC and to file charges of their own, the EEOC asserts.
The three-year consent decree resolving the case, which was approved by the court today, enjoins Day & Zimmermann from future retaliation or interference with ADA-protected rights and prohibits the company from publicizing the identity of individuals who file charges of disability discrimination in the future. In addition, the decree provides for revision of company policies, an extended statute of limitations for certain individuals to file ADA claims with the EEOC, and $45,000 in compensatory damages to the employee who filed the original discrimination charge.
There’s a reason that retaliation is the number one claim employees file with the EEOC. It’s not limited to firings or suspensions. Rather, in Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court concluded that the anti-retaliation provision in Title VII covers employer actions that would have been materially adverse to a reasonable employee or applicant. This standard applies to ADA claims too. Thus, it should come as no surprise that the EEOC would take the position that conduct by employers that interferes with the right of workers to speak to the EEOC is tantamount to retaliation.
That’s not to say that an employer can’t discuss a charge of discrimination internally with a select group of people (e.g., HR, counsel, C-Suite, other decisionmakers). But, more broadly publicizing a charge is not only a bad idea as a matter of law, it won’t help you much in the employee morale department either.
Bonus tip: Did you know that the EEOC does not identify the specific disability of someone who files an ADA Charge of Discrimination. That’s because the EEOC must eventually communicate the charge to the employer. And, by not identifying the particular disability, it’s less likely that this sensitive information gets disseminated within the employer’s organization.