The ADA Trumps Absence Policies at Sears

Posted by marykeating on February 9, 2010 under Employment benefit issues, Uncategorized, disability discrimination | Be the First to Comment

The Americans with Disabilities Act has faced a formidable battle in achieving its original goals of outlawing discrimination, and improving the employment rates for disabled people.  Originally signed into law by the first President Bush, the ADA forbade discrimination against individuals who had a disability, so long as they could perform the essential functions of their job, with or without a reasonable accommodation.  One would have predicted that the “reasonable accommodation” language would have led to the most controversy, but in reality, the courts systematically limited the availability of ADA’s protections by narrowing the definition of “disabled,” so few employees qualified.

Congress made some helpful changes last year, specifically legislating around one Supreme Court decision.  Yet it remains a difficult law, in part because of the often cited principle that “attendance is an essential function” of nearly every job.  So people who are disabled and need a period of recuperation or hospitalization are especially vulnerable when strict attendance policies lead to termination.  Often they are told that light duty is not an option (though they report that other people do get light duty), or that they cannot have more leave time.

The EEOC has been pursuing Sears Roebuck for just such a discriminatory policy since 2004.  Last week, it reached a large settlement, $6,200,000 with the retailer, which will benefit 235 of its former employees.  All complained that they were damaged by Sears’ inflexible policy requiring an employee to return to work within one year after an injury, and failed to accommodate their disabilities to enable their return.  In addition, Sears is ordered by the Court not to discriminate in the future, must post a notice in its stores for three years explaining the consent decree, and is required to report regularly to the EEOC on the progress of its accommodations of injured employees.  The consent decree also alters Sears’ policies of communicating with its disabled employees, and requires a centralized leave management team to oversee the requests for and grants of accommodations.

The success of this litigation may swing the pendulum away from shutting the doors to injured or ill employees.  Whether the motivation is fear that the “damaged goods” will never do the job efficiently, that health insurance premiums will rise, or simply to punish the person who has taken “too much” of the sick leave benefits offered, employers will have to watch their policies and practices in light of the Sears decision.