New Developments at the EEOC for Disabled Employees

The Equal Employment Opportunity Commission (EEOC), the government agency that handles claims of discrimination on the basis of race, color, sex, national origin, religion, age, and disability, recently issued two important announcements related to disability discrimination. Last week, the agency announced that it had reached its largest settlement ever in a case against the California Public Employee Retirement System (CalPERS) on behalf of public safety officers who were disabled in the line of duty. (See EEOC press release and Mercury News story.) CalPERS’ formula for calculating industrial disability retirement (IDR) benefits reduced the total percentage of benefits according to an employee’s number of years over age 30 when hired, so that the older an employee was when hired, the less the employee received if he or she became disabled. Therefore the plaintiff, Ronald Arnett, who joined the Fremont, California police force at age 43, received only 32% of his salary for his IDR benefit when he suffered permanently disabling injuries after five years of service, while if he had been hired at age 30, he would have received 50% of his pay. Arnett and other affected officers filed suit in 1995, claiming that the policy violated the Age Discrimination in Employment Act. However, the case suffered a setback in 2000, when the U.S. Supreme Court, in the case of Kimel v. Florida Bd. of Regents, ruled that private plaintiffs could not recover monetary damages from state governments for age bias. Following the Kimel case, the EEOC chose to intervene in the officers’ case, since the agency still was able to file suits against state employers and to recover monetary damages. While the settlement only directly affects the 1,700+ retired public safety officers, it is still significant because of the EEOC’s intervention, demonstrating that the agency is willing to intervene on behalf of public employees who cannot sue state employers themselves.

The EEOC also released on Tuesday a new fact sheet about telework (telecommuting) programs, and how employers may use these programs as an accommodation for disabled employees. (See EEOC press release.) The fact sheet, issued on the two-year anniversary of the President’s New Freedom Initiative, is designed to promote telework as a key strategy for increasing the employment of people with disabilities. While telework had previously been identified as one means of reasonably accommodating a disabled employee, see EEOC Guidance, the fact sheet further explores and explains ways this specific accommodation option can work to benefit both employees and employers. For example, an employer who does not currently have a telework program may be required to allow a disabled employee to work from home, while an employer who already has established such a program may need to waive eligibility requirements (such as one year of tenure) to accommodate employees with disabilities. While an employer is not required to establish a program or allow a particular employee to participate if the job is not conducive to telework (because, for example, it requires frequent face-to-face contact with coworkers or clients), employers must determine whether some or all of the job’s essential functions can be performed at home, and are encouraged to reassign marginal job functions, and use telephone and e-mail to lessen the need for a disabled worker’s full-time presence in the office. While this fact sheet does not change existing law or the EEOC’s previous guidance on this subject, it does make clear that telework is here to stay, and that telecommuting’s increasing feasibility and use make it a viable option for accommodating employees with disabilities who cannot be in the traditional office setting for an entire work day or workweek.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.