New EEOC Enforcements

Two new EEOC (Equal Employment Opportunity Commission) lawsuits against nursing homes show that risk is continuing to increase for elder care providers. The first, EEOC v. Genesis Healthcare LLC, is over the alleged discrimination against a deaf application in the hiring process. The second, Araceli Cadenas v. Butterfield Health Care II, c/b/a Meadowbrook Manor of Naperville et al, involves the wrongful termination of a fifteen week pregnant woman.

In Genesis a deaf applicant with experience was informally offered a part time job in the nursing facility as a Dietary Aide/Assistant Cook. He was later asked to come in for a second interview and was explicitly quizzed on his communication skills, which the EEOC alleges violates the Americans with Disabilities Act. The EEOC has determined that in almost all cases deafness is a protected disability and an employer must make reasonable accommodations if the person is otherwise qualified. The interviewer could ask was accommodations the applicant would need to communicate in their work environment but could not make a hiring decision on that basis.

In Cadenas a 15 week along pregnant woman presented a note to her employer that once she reached 20 weeks she could no longer lift more than 20 pounds. She was fired immediately because her job entailed lifting patients she could no longer perform it. After bringing suit a Federal District Court determined that being fired at 15 weeks was solely because of her pregnancy, which is a protected condition. The ruling stated that if the employer had waited five weeks until she was unable to perform the duties she was hired for the termination would have been just. However, by letting her go early they were basing the decision exclusively on her pregnancy.

These cases show the increasing costs of regulation on the industry and the need for strong protections in defending employment decisions. Many employment practices liability insurance policies include free legal advice in this area and cover the defense costs related to defending personnel decisions. Contact to discuss creative strategies to manage the costs of increased regulation.