Class action settlement in Verizon ADA case continues EEOC trend

Lexology.com
Baker Donelson Bearman Caldwell & Berkowitz PC
USA
September 16 2011

Background
On July 6, 2011, Verizon agreed to pay $20 million as part of a consent decree to settle a class action filed by the EEOC in federal court in Maryland, which alleged the company maintained a "no fault" attendance policy which contains multiple steps of discipline, up to and including discharge, for all absences, including absences caused by an employee's disability, except for certified FMLA leave, jury or military duty, death in the immediate family or excused time without pay. Verizon's policies mandate that when an employee accumulates a certain number of "chargeable absences" an employee is placed on a disciplinary step, and additional absences incurred during the step period result in the employee being placed in the next step, which has more serious consequences, including termination. In its operation, the EEOC alleged that an employee who was on workers' compensation leave due to a disability arising from a work-related injury was automatically terminated after one year of leave without consideration of whether a reasonable accommodation under the ADA might have allowed the employee to return to work.

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Verizon to Pay $20 Million to Settle Nationwide EEOC Disability Suit

U.S. Equal Employment Opportunity Commission
PRESS RELEASE
7-6-11

Largest ADA Settlement in EEOC History for Hundreds of Employees Terminated or Disciplined Based on Rigid Attendance Policy

BALTIMORE – Telecommunications giant Verizon Communications will pay $20 million and provide significant equitable relief to resolve a nationwide class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The suit, filed against 24 named subsidiaries of Verizon Communications, said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans.
The consent decree settling the suit, which is pending judicial approval, represents the largest disability discrimination settlement in a single lawsuit in EEOC history. The EEOC charged that Verizon violated the Americans With Disabilities Act (ADA) by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.
The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.
The ADA prohibits discrimination based on disability. The law also requires an employer to provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer.
“Flexibility on leave can enable a worker with a disability to remain employed and productive -- a win for the worker, the employer and the economy,” said EEOC Chair Jacqueline A. Berrien. “By contrast, an inflexible leave policy may deny workers with disabilities a reasonable accommodation to which they’re entitled by law – with devastating effects.” Chair Berrien presided over a Commission meeting earlier this month on leave as a reasonable accommodation.
"I am pleased the parties were able to resolve this historic case without resorting to prolonged and expensive litigation," said EEOC General Counsel P. David Lopez. "Hopefully this nationwide decree will further public awareness of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA."
The EEOC filed suit in U.S. District Court for the District of Maryland, Civil Action No. 1-11-cv-01832-JKB, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC filed its lawsuit and the proposed consent decree resolving the suit on the same day. The consent decree resolves the EEOC’s lawsuit, an EEOC Commissioner charge, a charge filed by the Communications Workers of America, AFL-CIO, and over 40 individual charges filed with the EEOC. The investigation involved coordinated systemic efforts by EEOC’s Baltimore Field Office and Newark Area Office.
“This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities,” said Spencer H. Lewis, Jr., Director of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Maryland, Delaware, West Virginia, and parts of New Jersey and Ohio.
In addition to the $20 million in monetary relief, the three-year decree includes injunctions against engaging in any discrimination or retaliation based on disability, and requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences. Verizon will provide mandatory periodic training on the ADA to employees primarily responsible for administering Verizon’s attendance plans. The company will report to the EEOC about all employee complaints of disability discrimination relating to the attendance policy and about Verizon’s compliance with the consent decree. The company also agreed to post a notice about the settlement. Finally, Verizon will appoint an internal consent decree monitor to ensure its compliance. The settlement applies to certain Verizon wireline operations nationwide which employ union-represented employees.
EEOC Regional Attorney Debra Lawrence said, “This consent decree is the result of productive and thoughtful negotiations with Verizon. We appreciate Verizon working with the EEOC to reach a settlement. In addition to providing meaningful monetary relief for hundreds of former Verizon employees, the settlement contains important equitable relief, including company policy changes and training designed to provide people with disabilities equal opportunities in the workplace.”
According to its website, www.verizon.com, Verizon Communications Inc., headquartered in New York, is a global leader in delivering broadband and other wireless and wireline communications services to mass market, business, government and wholesale customers. Verizon has more than 196,000 employees and last year generated consolidated revenues of $106.6 billion.
In fiscal year 2010, private sector workplace discrimination charge filings with the EEOC hit an unprecedented level of 99,922, which included a record-high number of disability charges (25,165) – an increase of 17.3 percent in disability charges over the prior fiscal year.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its web site at www.eeoc.gov.

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