EEOC highlights legal risks posed by inflexible job requirement and leave policies

Lexology
Foley & Lardner LLP
Jeremy C. Wooden
USA
September 19 2011

The EEOC has recently highlighted the significant legal risks that arise from an employer’s inflexible, one-size-fits-all application of certain employment policies. The EEOC has singled out two types of employment policies that are likely to draw its attention: (1) uniform job qualification requirements that permit no exceptions for applicants “regarded as” disabled, and (2) leave policies containing inflexible cut-off dates.
Uniform Job Qualification Requirements Must Be Relevant to Performance
Speaking recently at the 2011 Technical Assistance Seminar, EEOC Legal Counsel Peggy Mastroianni warned employers that, in the wake of the ADA Amendments Act (ADAAA), the EEOC will apply heightened scrutiny to uniform job requirement policies that exclude applicants based on impairments. The ADAAA makes it easier for an applicant to qualify for ADA coverage if he/she is “regarded as” disabled . Prior to the ADAAA, an employer may not have had to defend a no exceptions policy because an affected applicant would not have been regarded as disabled for failing to meet the job requirements. Now, an affected applicant will likely be regarded as disabled, and employers will have to defend the policy on the merits by showing how the policy is relevant to job performance.

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