Unbelievable – Health Care Providers Sued For Disability Discrimination

No one should discriminate against people with disabilities, but health care professionals must be extra vigilant.

Who do you suppose the Equal Employment Opportunity Commission (“EEOC”) targets most for alleged violations of the Americans With Disabilities Act (“ADA”)?

The EEOC sued a senior living community in Colorado for refusing to accommodate an employee with fibromyalgia. The employee’s job?

The Health and Wellness Director!

A large managed care organization settled an EEOC lawsuit alleging that it fired a food service worker suffering from hydrocephalus. The EEOC said at the time, “One would expect that a medical center, of all places, would be sensitive and understanding on the needs and challenges of an employee with a disability.”

Any ideas?

What Kind Of Person Would Refuse To Hire Someone Who Is Disabled?

The ADA had to be passed because people with disabilities have one of the highest unemployment rates in the country.

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Who are these heartless employers?

Too frequently – if EEOC cases are any indication – they are health care and medical providers, such as hospitals, nursing homes, managed care facilities … in short, the caring professions.

But why? Are these folks, counterintuitively, more likely than others to discriminate against people with disabilities? Not likely. And there’s no evidence at all to support this absurd conclusion.

So Why Medical Providers?

Simply put, because they are fat, juicy targets for the EEOC, for a number of reasons.

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For example, the EEOC settled an ADA case earlier this year against an Arizona disability support services company that allegedly “had a practice of firing employees with disabilities who needed extended leave or reassignment rather than providing them with reasonable accommodations as required under federal law.”

Hard to believe, right? Didn’t they know that this practice – by a disability support company! – would look terrible and heartless if/when discovered – besides, of course, being illegal?

The EEOC recognizes low-hanging fruit when it sees it.

The EEOC Gets Great PR!

Think of the media attention when folks who are in the business of helping the sick, the disabled, and the infirm are caught discriminating against them. Why, the EEOC can quite sanctimoniously – and quite rightly – crow that “One would expect that a medical center, of all places, would be sensitive and understanding on the needs and challenges of an employee with a disability.”

And then there’s the likelihood of a quick settlement – which pads EEOC stats and helps to justify its existence.

Don’t get me wrong. Anyone who discriminates against people with disabilities is violating the law, acting disgracefully, and deserves swift and sure calling out and proper sanctions. I just marvel at the number of helping professionals who allegedly do it … or who, at least, are alleged by the EEOC to be doing it.

Face it. These folks are easy pickins’.

Some Of The Ensnared Health Care Professionals

Just last month, the Dependable Health Services health care staffing agency was sued by the EEOC for allegedly firing an employee who suffered from sickle-cell anemia.

Also in July, the EEOC sued Advanced Home Care, Inc., a North Carolina nonprofit corporation that operates a call support center, for allegedly failing to provide an accommodation and then firing an employee “who has asthma, was hospitalized and diagnosed with chronic bronchitis and chronic obstructive pulmonary disease (COPD).”

Last year, an Arkansas physician-owned hospital was sued by the EEOC for refusing to accommodate a nurse who had a seizure – she had asked “to move to another position that did not involve direct patient care, or, in the alternative, a leave of absence until she could resume her nursing duties.”

The hospital’s response to her request? “You’re fired!”

The EEOC announced in late 2015 that it had settled a case brought against a nationwide dialysis provider that allegedly fired a nurse with breast cancer, and then refused to rehire her because she asked for more medical leave to complete her chemo treatment following mastectomy surgery.

So – The EEOC Really Is Targeting Them?

Well, let’s simply ask the EEOC, or review EEOC comments on the subject. It may be that easy to find out what’s behind this apparent targeting.

Take this one case in which the EEOC sued an Albuquerque home respiratory services company for allegedly firing a clerk who had just returned from medical leave when it learned of the seriousness of her surgery – to remove a 23-pound tumor. Yikes!

What was the EEOC’s comment? “One would hope that a health care organization would be the employer least likely to fire someone because she was recovering from serious surgery. Such conduct is not only cruel and insensitive, it’s illegal, and the EEOC is here to combat it.”

Get the picture?

The employer looks terrible, and the EEOC looks heroic! Better settle fast. …

In another case, Kaiser Permanente, the largest managed care organization in the U.S., settled a lawsuit in which the EEOC alleged that a food service worker suffering from hydrocephalus, which causes difficulties with memory, dizziness and concentration, requested additional training time at hiring “and the assistance of a temporary job coach” – which a relevant non-profit organization was available to provide gratis.

Kaiser allegedly declined this accommodation and fired the worker.

And the EEOC’s comment?

“One would expect that a medical center, of all places, would be sensitive and understanding on the needs and challenges of an employee with a disability. And surely a major institution such as Kaiser, with all its resources and expertise, should have agreed to reasonable accommodations without such trouble. Regardless, the EEOC is always here to defend the rights of disabled workers.”

The medical center, “of all places.” Doesn’t look too good, right?

And the EEOC? Why, it’s “always here to defend the rights of disabled workers.” Like a super hero! How many agencies get to claim that?

Indeed, what right-thinking person would disagree? And what company would not see the PR disaster, quickly settle, and breathe a sigh of relief when the EEOC issues the obligatory case-ending press release “commend[ing] Kaiser Permanente for agreeing to make changes that will ensure that its handling of reasonable accommodation requests is in compliance with federal law.”

From “insensitive” to “commendable”! In one quick settlement stroke! “How much should I write the check for?”

Finally, the EEOC settled a case against a community hospital in Iowa in which it alleged that a day care center operated by the hospital “unlawfully failed to hire a volunteer employee into a paid position for which she was qualified because of her cerebral palsy.”

A hospital refused to hire a volunteer with cerebral palsy???

The EEOC District Regional Attorney commented on this case:

Sometimes it looks like organizations engaged in the health care field or in the performance of other ‘good works’ consider it impossible for them to have discriminated — or to be challenged for having discriminated — particularly when it comes to the ADA. But our experience has been that all organizations, whatever their line of business and however they are organized, are vulnerable to falling into patterns or acts of discrimination if they do not consciously make compliance with federal anti-discrimination laws a priority.

Takeaway

No one should discriminate against people with disabilities, but health care professionals must be extra vigilant in their policies, practices and training – they are in the cross-hairs of the EEOC. For the EEOC (as I’ve said so often), it’s like “shooting fish in a barrel.”


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.