Shocking! Disabled Employees Dissed By Doctors

Health care professionals must be extra vigilant in their policies, practices, and training -- they are in the cross-hairs of the EEOC.

Way back … a year ago, I wrote here that the EEOC targets health care and medical providers, such as doctors, hospitals, nursing homes, managed care facilities … in short, the caring professions, for alleged workplace violations of the Americans With Disabilities Act (“ADA”).

Why, I asked.  Why them?

Think about it.  Health care folks — the caring folks, the ones who treat the sick, wounded, and lame — violating the ADA.  Doesn’t the hypocrisy jump out at you?  If you were a health care or medical provider would you like to be on the radar of the EEOC for … discriminating against people with disabilities?

What could be worse press?  What could appear worse to the public.

What An Easy Mark

Readers know that that I keep track of these cases where the EEOC zeros in on health care providers who allegedly violate the ADA (or the Pregnancy Discrimination Act of Title VII). I have asked before: “Are these folks, counter-intuitively, more likely than others to discriminate against people with disabilities?”

No, not likely.

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They are just an easy mark.

And on my law firm blog I have exhorted health care folks to be extra vigilant in complying with the ADA, lest the EEOC zero in and hit the bulls eye.

Do they listen?

Nah.  Like most people, they are sure that they know exactly what to do and what is required to be compliant (if they know at all what they have to comply with), and think that the EEOC will never come looking for them.  Besides, no lawyer is gonna tell them how to run their practice!

Good luck.

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They refuse to realize that they are fat, juicy low-hanging fruit just waiting to be plucked from the tree.  And when they are plucked, they tend to settle rather quickly.  What a surprise.

Health and Wellness Director With Fibromyalgia Fired

I mentioned last year an EEOC suit brought against a senior living community in Colorado for refusing to accommodate an employee with fibromyalgia.  In that case the employee was the Health and Wellness Director!

You can’t make this stuff up.

Just in the couple weeks there have been two more health care providers nailed by the EEOC for alleged disability law violations.  Why, it was just last month that I noted on my firm blog about another such case — “Chalk up another fish shot in a barrel by the EEOC.”

Doctors Fire Disabled Employee?

In the first new case, a Texas physicians group of pulmonary and sleep specialists were sued by the EEOC allegedly for unlawfully requiring employees to fill out a medical questionnaire which asked whether they “had any of over 20 listed medical conditions, whether the employee had an impairment or disability, whether the employee had previous surgery or received a permanent disability rating.”

Not cool.

The plaintiff, a billing and collections clerk, noted that she was injured at work more than 20 years before and was given a permanent partial disability rating — but that this had no effect on her ability to perform her job duties.

Nonetheless, she was terminated three days later.  Even. Though. She. Could. Do. The. Job.

The EEOC noted, correctly, that “[e]mployees who are able to perform the essential functions of their job cannot be terminated just because they previously suffered limitations from a physical impairment or underwent a medical procedure that the company speculates might be disabling.”

And the EEOC’s Regional Attorney underscored my observation that medical folks are particularly vulnerable to the EEOC: “Healthcare providers should know that federal law prohibits employers from using a medical questionnaire to screen out or push out workers with disabilities or who are regarded as disabled without the inquiry being job-related and consistent with a business necessity.”

Yep.  They should know.  If anyone, they should know.

The EEOC recognizes low-hanging fruit when it sees it and can be quite sanctimonious about it.  As I noted here last year, one EEOC official sniffed that “[o]ne 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.”

Blind Medical Center Food Worker Fired?

On the same day, the EEOC sued a California medical center which allegedly refused to provide accommodations to a 10-year cafeteria food service technician (think cashiering, grilling, cleaning and stocking) to allow her to return to work after she suffered a sudden loss of vision as a result of a severe illness.

After she took unpaid leave “to learn [successfully!] non-visual techniques necessary for independent living” she sought to return to work and to perform her former tasks.

Instead, the employer terminated her based upon an alleged 20/40 vision requirement that had never been applied.

The District Director of the EEOC said that “Instead of allowing her to demonstrate her [new skills and] abilities,” the medical center which “she had served loyally for over a decade,” excluded her due to fixed assumptions about her disability and limitations.”

They allegedly fired a loyal employee who became blind!

An EEOC attorney noted that “Rather than relying on stereotypes, we should consider the successful examples of blind and low-vision individuals employed in food service workplaces. …”

Takeaway

As I noted last year, 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.

Would you want be known as the doctor who fired a blind woman who could do the job?  Think that would look good to patients?

And you lawyers who may look down your noses on your errant health care brethren — think that you’re immune from this type of behavior and the withering gaze of the EEOC?  Think again.

Think how this would look to clients…


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.