Small Marketing Business Fired Employee Because of His COPD, Asthma and Emphysema, Federal Agency Charges

SAN DIEGO — InsideUp Inc., a San Diego-based marketing company, will pay $10,500 and provide other significant relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, a marketing consultant with chronic obstructive pulmonary disease (COPD), emphysema and asthma requested a reasonable accommodation. The consultant requested to work on the ground floor of an office building without an elevator, so he would not have to walk up and down the stairs with his condition. InsideUp not only refused his request but thereafter fired him due to his disability.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. InsideUp, Inc., Case No.: 3:17-cv-01961-CAB-JMA) after first attempting to reach a pre-litigation settlement through its conciliation process.

As part of the four-year consent decree settling the suit, InsideUp will pay $10,500 to the discrimination victim. In addition to the monetary relief, InsideUp agreed to significant injunctive relief, including, but not limited to, training all its employees; revising its anti-discrimination and retaliation policies and procedures; centrally tracking requests for reasonable accommodations as well as complaints of discrimination and/or retaliation; regularly reporting to the EEOC; and posting a notice about the consent decree and settlement.

“We commend InsideUp for resolving this complaint early and agreeing to put in place measures to help prevent future disability discrimination in its workplace,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes San Diego County in its jurisdiction. “Small businesses should regularly review their policies and procedures to ensure that they are in compliance with the ADA.”

Christopher Green, director of the EEOC’s San Diego Local Office, added, “It is important employers appreciate their obligation to engage in the interactive process with, and provide a reasonable accommodation to, their disabled employees.”

Contractor Used Medical Questionnaires and Exams to Weed Out Employees With Potential Medical Issues, Federal Agency Charges

BIRMINGHAM, Ala. – Zachry Construction Corporation, a San Antonio-based construction and industrial contractor, violated federal law when it fired several employees whose post-offer medical questionnaires and subsequent medical examinations revealed they had disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit. At the time of termination, all these employees were already performing their job duties in a satisfactory manner, the EEOC said.

According to the EEOC’s lawsuit, in June 2015, Reginald White applied for a Boilermaker I position at the Chevron refinery in Pascagoula, Miss. Around the time he was hired, Zachry required White to complete a medical questionnaire. On Aug. 25, a month after White began work, the company required White to undergo a fitness-for-duty examination. After a brief examination and review of White’s medical information, the examining physician found White unable to perform his job duties, even though he had satisfactorily performed those duties for the past month. Zachry fired White the next day.

Similarly, Zachry terminated two other employees after it learned that they had disabilities, the EEOC said. On May 17, 2016, the company required Jasper Johnson to undergo a fitness-for-duty examination. During the examination, Zachry’s physician learned of a past surgery and lingering neck pain. The company refused to allow Johnson to return to work and fired him.

Further, Zachry hired Parker Isaacson as a skilled laborer on July 6, 2015. Isaacson had undergone surgery on his right shoulder and had multiple right shoulder dislocations post-surgery. On April 4, 2016, the company required Isaacson to undergo a fitness-for-duty examination. During the examination, Zachry’s physician learned of Isaacson’s past surgery and multiple shoulder dislocations. The company refused to allow Isaacson to return to work and then terminated him.

The Americans with Disabilities Act (ADA) protects employees and job applicants from discrimination because of their disabilities. If an employee requires a reasonable accommodation, an employer must engage in a good-faith interactive process with the employee to determine if he or she can perform the essential functions of the job with or without a reasonable accommodation.

The EEOC filed suit (EEOC v. Zachry Construction Corporation, Case No. 1:18-cv-00058-HSO-JCG) on February 20, 2018 in the U.S. District Court for the Southern District of Mississippi after the EEOC’s Birmingham District Office completed an investigation and first attempted to reach a pre-litigation settlement through its conciliation process. The lawsuit seeks monetary damages, including back pay, compensatory and punitive damages, and injunctive relief.

“If an employer has a concern about employee’s ability to perform his or her job duties, it needs to conduct individualized assessments and not make decisions based on assumptions,” said EEOC District Director Delner Franklin-Thomas.

EEOC Regional Attorney Marsha Rucker added, “Treating employees with disabilities fairly is not just common sense, it’s federal law, and the EEOC is proud to enforce it.”

According to the company’s website, Zachry Construction Corporation specializes in large, technically-unique projects around the world. Zachry maintains offices in Texas, North Carolina, Colorado and California.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.