Prior to providing the requested information to the EEOC, the business sent a letter to approximately 146 employees. The Letter was on company letterhead, and it was signed by the company’s in-house attorney.  This letter, among other things, identified the employee who filed the EEOC charge by name and noted that he had filed a discrimination disability charge with the EEOC.

Not only did the EEOC conclude that the employer violated the ADA, but it sued the employer on the employee’s behalf in federal court.  During the lawsuit, the EEOC alleged that, by sending the letter, the employer (1) retaliated against the employee for filing a charge with the EEOC in violation of the ADA and (2) interfered with the employee’s and the letter recipients’ exercise and enjoyment of rights protected by the ADA.

After this ruling was issued by the Court, the employer agreed to settle the lawsuit by paying $45,000 and furnishing extensive injunctive relief. EEOC v. Day & Zimmermann NPS, Inc., No. 15-cv-1416 (VAB), 2017 U.S. Dist. LEXIS 133918 (D. Conn. Aug. 22, 2017). The company agreed to a three-year consent decree, which enjoined the company from future retaliation or interference with ADA-protected rights and prohibited the company from publicizing the identity of individuals who file charges of disability discrimination in the future. In addition, the decree provided for revision of company policies, an extended statute of limitations for certain individuals to file ADA claims with the EEOC, and $45,000 in compensatory damages to the employee who filed the original discrimination charge.

This case reminds employers that in-house lawyers and others who do not have extensive experience in handling EEOC charges of discrimination may not realize the nuances of responding to EEOC charges of discrimination.

If you need any assistance in relation to analyzing handling such EEOC requests, please email or call the Law Office of David Miklas, P.A. at 1-772-465-5111 before you take that action to make sure that it is legal.

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The Court recognized that the company offered a legitimate, non-discriminatory reason for sending the letter, which was to minimize business disruption and notify the recipients that the company had disclosed their home telephone numbers and addresses to the EEOC.  However, the Court also ruled that a reasonable jury could review the letter and find that the company’s explanation is pretextual.

The Court issued an Order that explained that if the letter had been solely intended to minimize business disruption and inform the recipients about the disclosure of their contact information to the EEOC, the letter did not need to include an entire paragraph identifying the employee who filed the EEOC charge, discuss the nature and subject matter of charge, and did not need to disclose the specific accommodations he sought. 

Therefore, the Court ruled that a reasonable jury could also conclude that the business’s explanation was pretextual because the letter did not need to explain that recipients need not speak to the EEOC investigator and that company lawyers could be present if the recipient chose to speak to the EEOC.

Finally, the Court concluded that the disclosure of sensitive personal information about an individual could well dissuade that individual from making or supporting a charge of discrimination under the ADA. The Court found that a reasonable jury could conclude that the letter could have the effect of interfering with or intimidating the letter’s recipients with respect to communicating with the EEOC about possible disability discrimination by the company.

The Court reminded employers that adverse actions in the retaliation context are defined more broadly than in the discrimination context. For an allegedly retaliatory action to be materially adverse, the employee must show that the action could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Regarding the fourth element, the Court explained that the business’s letter to the 146 employees clearly refers to the employee’s charge of discrimination and the EEOC’s investigation, and is clearly a response to those things. The Court therefore found that a reasonable jury could find that the EEOC had shown a causal connection between the employee’s protected activity and the employer sending the letter, and that “a retaliatory motive played a part” in the sending of the letter.

An employee filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging that the company had violated the Americans with Disabilities Act (“ADA”).  As part of the investigation of the charge, the EEOC sought information from the company, including the names and contact information of 146 other employees. The company did not want to provide this list of contact information, and suggested that the EEOC investigator should interview a particular employee who worked for the company for over 20 years, and who had worked as a foreman during the time in question.  The company felt that the EEOC made the request for all of the other employees’ contact information to “engag[e] in a fishing expedition.”

To make out a prima facie case of retaliation under the ADA, the employee must show the following elements: (1) the employee was engaged in an activity protected by the ADA, (2) the employer was aware of that activity, (3) an employment action adverse to the plaintiff occurred, and (4) there existed a causal connection between the protected activity and the adverse employment action.

 The company did not dispute the first two elements, but challenged the latter two elements.

 Regarding the third element, the Court found that a reasonable jury could find that the letter was an adverse employment action, citing other cases where courts have found that when an employer disseminates an employee's administrative charge of discrimination to the employee's colleagues, a reasonable factfinder could determine that such conduct constitutes an adverse employment action.

Law Office of David Miklas, P.A.

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