Last month, the U.S. Equal Employment Opportunity Commission ("EEOC") filed a federal court lawsuit against King Soopers, Inc. ("King"), a large retail food company. The EEOC alleges King refused to accommodate and unlawfully fired a receptionist working in its corporate headquarters because of her bipolar condition.
According to the EEOC's filing (EEOC v. Dillon Companies, Inc., d/b/a King Soopers, Inc. 12-cv-02458-REB-KMT), the employee was hired in 2003 and worked for five years at which time she requested time off to manage her bipolar disorder. Specifically, she sought use of King's 18-month medical leave policy "to manage a flare-up" in her disability. During her fifth month of leave, King terminated the employee for failing to report to work without permission.
The Americans with Disabilities Act ("ADA"), passed in 1990, prohibits discrimination against qualified individuals with disabilities in job application procedures and in hiring, firing, advancement, compensation and job training. The prohibition includes discrimination by private employers, state and local governments, employment agencies and labor unions. The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities or who has a record of such an impairment or is regarded as having such an impairment. Under the ADA, employers are required to make a "reasonable accommodation" for a qualified applicant/employee so long as it does not impose undue hardship on the employer's operations.
Employers must be careful not to overlook the fact that under the ADA, medical leave constitutes a "reasonable accommodation." An employer can provide "reasonable accommodations" to a disabled employee by allowing the employee an amount of leave consistent with federal or state laws or, consistent with that which is already available to the employee under the employer's general leave policies.
As of the date of this article, King has not yet filed its response to the EEOC's complaint and therefore its position is unknown. However, in order to establish a prima facie case of unlawful discrimination under the ADA, the plaintiff will have the burden of establishing the following elements by a preponderance of the evidence: (1) that the employee has a disability; (2) that she was qualified to serve in the position, with or without some reasonable accommodation by King, despite the disability; and (3) that she suffered an adverse employment action because of the disability. Unless the EEOC has direct evidence of discriminatory intent by King, it can attempt to demonstrate discrimination by indirect evidence. Then, the burden will shift to King to articulate a legitimate nondiscriminatory reason for its employment decision. Once King has offered evidence of a legitimate, non-discriminatory reason, in order to proceed the EEOC must present some concrete evidence, in the form of specific facts, demonstrating that King's reason was only a mere "pretext" for discrimination. The EEOC will not be permitted to rely on a possibility or inference of discriminatory motive. If the EEOC cannot present this evidence, King may be entitled to summary judgment.
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