The U.S. Equal Employment Opportunity Commission (EEOC) sued CPG Staffing and Executive Personnel Group, LLC, and alleged disability discrimination.

The EEOC claims the staffing companies, which assign employees to construction industry clients, rescinded a job offer to a welding applicant in Hazlehurst, Georgia, because they perceived him as having a disability.

The applicant injured his knee two years prior to the offer but fully recovered. He successfully passed a welding test that involved climbing ladders and crouching and crawling on beams. After disclosing his prior injury in a post-offer medical questionnaire, the applicant provided a letter from his physician clearing him to work. Despite this, Executive Personnel's risk manager instructed CPG Staffing not to hire the applicant due to his prior injury, leading to the rescinding of the job offer.

The EEOC's lawsuit, filed in the U.S. District Court for the Southern District of Georgia, Brunswick Division, alleges a violation of the Americans with Disabilities Act (ADA), which prohibits disability discrimination. The EEOC attempted to reach a pre-litigation settlement through its administrative conciliation process before filing the suit.

https://www.eeoc.gov/newsroom/eeoc-sues-cpg-staffing-and-executive-personnel-group-disability-discrimination and https://www.eeoc.gov/newsroom/cpg-staffing-and-executive-personnel-group-pay-60000-settle-eeoc-disability-discrimination

Commentary

The above matter was settled for $60,000.

In addition to the payout, the defendant agreed to provide employees with specialized training on the ADA's prohibition against disability discrimination.

The defendants are also required to remove a question about prior work-related injuries from their post-offer medical questionnaire and to add ADA anti-discrimination language to the questionnaire.

Finally, the decree requires the companies to post a notice that sets forth the general requirements of the ADA at each of their facilities.

The post-offer question about prior work-related injuries is what sparked this litigation. The EEOC considers pre-and post-offer questions about injuries and even general health questions as a possible violation of the ADA.

Only questions as to whether the applicant can or cannot meet the essential functions of the job are permitted.

Prepared employers should have clear and updated job descriptions that state the mental, physical, emotional, and other functions necessary to perform a job.

Employers should take note that the EEOC did not consider the pre-offer physical testing as illegal because it determines whether the applicant can perform the essential functions of the job with or without reasonable accommodation.

Questions about medical history have little to do with whether an applicant can perform the job now or in the future and creates a perception that the applicant is disabled or could become disabled in the future. The ADA prohibits denial of employment opportunities based on the perception of a disability.

The final takeaway is that employers need to review all post-offer questionnaires and make certain the assessments do not ask applicants to disclose medical history.

Other steps to avoid disability discrimination include:
 

• Incorporate into your mission that all workplace participants are treated equally, fairly, and respectfully
• Establish policies, procedures, and standards that prohibit discrimination, promote equality, and establish civility, including policies that prohibit discrimination on the basis of disability
• "Disability" refers to: (i) a physical or mental impairment that substantially limits one or more major life activities; (ii) a record of such an impairment; or (iii) being regarded as having such an impairment 
• Discrimination "on the basis of disability" can include denying, or interfering with, reasonable accommodations or denying an individual employment opportunities because they have record of an impairment or because they are regarded as having an impairment
• Enforce your organization's policies, procedures, and standards, including those that prohibit discrimination on the basis of disability
• Evaluate all new policies, procedures, standards, and duties to make certain they do not have a disparate impact on workers on the basis of disability
• Closely scrutinize all physical, emotional, and cognitive testing of applicants, new hires, and existing workers for bias, including bias against applicants and/or workers on the basis of disability
• Job qualification exclusions based upon disability should not be permitted or considered unless they are bona-fide occupational qualifications
• Make hiring or selection of workers based on experience, skills, and other objective qualifications necessary for an applicant to perform the essential functions of a position
• Discipline any employee — regardless of title, status, or duties — who engages in, encourages, or promotes discrimination or stereotypes based on disability
• Make certain all terminations are based on provable and documented objective factors, preferably related to job performance, and are not based on subjective, arbitrary, or illegal factors
• Document all actions related to termination or discipline of workers
• Never terminate workers on the basis of disability with the purpose of employing other workers without disabilities
• Closely evaluate all terminations or layoffs for a disparate impact on workers on the basis of disability
• Investigate and evaluate all attempts to transfer opportunities and responsibilities away from workers on the basis of disability
• Make certain that new leadership treats existing employees equally, fairly, and legally prior to hire or transfer, avoid denying employment opportunities on the basis of disability
• Review how all employment opportunities are distributed to ensure eligible workers are provided equal opportunities of employment and avoid denying employment opportunities on the basis of disability
• Require all management to take discrimination prevention training that includes information on discrimination and harassment on the basis of disability
• Require all workers to take diversity, civility, and equality and inclusion training in a language the trainee can understand
• Clearly communicate the means and process by which workplace participants can report discrimination, including discrimination the basis of disability
• Provide several safe and effective means for workplace participants to report discrimination on the basis of disability
• Allow for a means by which workplace participants can report discrimination anonymously, including discrimination on the basis of disability
• Investigate all reports and reasonable suspicions of discrimination including, discrimination on the basis of disability in a prompt, thorough, and objective manner
• Prohibit retaliation against workplace participants who report or complain about discrimination or who are involved in investigations of discrimination on the basis of disability 
• Provide a safe and effective means for workplace participants, who report discrimination on the basis of disability