By now, it’s apparent the EEOC’s taking an ultra-aggressive approach to enforcing the newly expanded Americans with Disabilities Act. The good news: Some recent court rulings might rein those efforts in a bit.

Two recent cases illustrate the point.

The first involved two individuals who alleged discrimination based on a perceived disability after not being hired by a railroad in Colorado.

But that wasn’t the key to the case. That arose when the agency asked for “any
computerized or machine-readable files . . . created or maintained by you . . .
during the period December 1, 2006 through the present that contain electronic
data about or effecting [sic] current and/or former employees . . . throughout the
United States.”

The company objected to the broad scope of the request. The EEOC responded by saying that it had widened its investigation to “pattern and practice discrimination” — the agency claimed it had four other similar bias charges from four other states. That justified the nationwide information request.

The court wasn’t buying it. The case brought by the EEOC involved two individuals, and the agency was entitled “only to evidence that is ‘relevant to the charge(s) under investigation,’” the appeals court ruled.

“Nothing prevents the EEOC from investigating the charges filed by (the original two complainants), and then — if it ascertains some violation warranting a
broader investigation — expanding its search,” the court said. “But nationwide recordkeeping data is not relevant to charges of individual disability discrimination.”

The case is EEOC v. Burlington Northern Santa Fe R.R. Co. To read the full decision, go here.

Must displaced workers be transferred?

The second case centered on the EEOC’s claim that, under the ADA, employees who lose their jobs due to a disability must be reassigned to a vacant position for which they are qualified.

At issue was a United Airlines written accommodation policy that addressed the issue of disabled employees who couldn’t perform the “essential functions” of their job, even with reasonable accommodation.

The company guidelines say that while reassigning the disabled worker to a different job is certainly an option, “the transfer process is competitive.

“Accordingly, an employee will not be automatically placed into a vacant position. Instead, employees needing accommodation will be given preference,
meaning they can submit an unlimited number of transfer applications, they are guaranteed an interview and they will receive priority consideration over a
similarly qualified applicant.”

Not good enough, argued the EEOC — the transfer of the disabled employee must be guaranteed.

The judge turned thumbs-down on the EEOC stance. If better qualified applicants are available, they may be hired in place of the disabled employees, if the employer has a “consistent and honest” policy of only hiring candidates deemed  best-qualified.

The case is To read the full decision, go here.

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