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      Earlier this year, the EEOC’s Phoenix District Office filed suit against Community Care Health Network, Inc., doing business as Matrix Medical Network in Arizona, alleging Matrix violated federal law. The EEOC’s suit alleges Matrix rescinded a job offer to Patricia Pogue after discovering Ms. Pogue was pregnant.

      Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, the (“PDA”), prohibits employment discrimination based on sex, including pregnancy. Acts of pregnancy discrimination may include:

  • Firing a pregnant employee;
  • Laying off a pregnant employee;
  • Refusing to hire a pregnant employee;
  • Harassing a pregnant employee;
  • Refusing to provide accommodations for a pregnant employee;
  • Demoting a pregnant employee;
  • Forcing a pregnant employee to change positions or take time off.

     The PDA, which applies to employers with 15 or more employees, protects employees who go on leave due to pregnancy, childbirth, or a related medical condition. Employers must hold an employee’s job open on the same basis as it does for other employees who go on leave.

     According to the EEOC’s suit, Matrix offered Ms. Pogue a position as credentialing manager. After Ms. Pogue accepted the offer, she informed Matrix she was pregnant and would need maternity leave. Approximately one week later, Matrix asked Ms. Pogue why she did not disclose her pregnancy during the job interview. Matrix then rescinded the job offer. 

Ashley Petefish
Written by: Ashley Petefish

     The EEOC’s suit against Matrix seeks back wages, compensatory, and punitive damages for Ms. Pogue. Further, the EEOC is seeking a permanent injunction enjoining Matrix from engaging in any discriminatory practices based on a person’s sex, including pregnancy.

     The EEOC has focused in on PDA discrimination cases during the past couple of years. The EEOC receives, on average, more than 3,500 charges of pregnancy discrimination each year. In 2017, the EEOC settled multiple pregnancy discrimination cases for a total amount of $15 million in monetary damages.

     All employers, including medical practices, should institute and carry out policies and practices to prevent pregnancy discrimination in the workplace. Employers that would like more information about pregnancy discrimination, including advice on creating and implementing effective anti-discrimination policies, may contact the attorneys at Milligan Lawless for assistance.

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified individuals with a disability, unless doing so would trigger significant operational difficulties or expenses for the employer. Employees on leave for a disability may request reasonable accommodations in order to return to work. The employee may make the request, or the request may be outlined in a doctor’s note releasing the employee to return to work with certain restrictions.

When an employer becomes aware of an employee’s need for a possible accommodation, it is the duty of the employer to discuss the accommodation needs with the employee. Employers run afoul of the ADA when they impose “100% healed or recovered” policies. These policies refer to a practice mandating an employee be released to work without any restrictions before she may return to work. For example, if an employee is on medical leave for a surgery to address a disability and the employee’s physician releases her to work with a 20-pound lifting restriction, the employer cannot refuse to allow the employee to return to work with the lifting restriction if the employee’s essential functions do not require lifting 20 pounds. To do so would violate the ADA.

In May 2016, the Equal Employment Opportunity Commission (EEOC) issued guidance entitled “Employer-Provided Leave and the Americans with Disabilities Act.” Since issuing that guidance, the EEOC has been targeting employers with 100% Healed Policies. Recently, the EEOC set its sights on Corizon Health Inc., and Corizon LLC, (Corizon), nationwide health care companies that operate in Phoenix, Arizona.

On September 19, 2018, the EEOC filed suit against Corizon in the District of Arizona. The EEOC suit alleges Corizon violated federal law by discriminating against employees with a 100% healed policy. The EEOC states Corizon required employees with disabilities to be 100% healed or to be without any medical restrictions before they were allowed to return to work. The EEOC states this practice is a clear violation of the ADA.

The EEOC’s Phoenix Office, in filing this suit, has made clear it is committed to challenging 100% healed policies. Elizabeth Cadle, District Director of the EEOC’s Phoenix District Office, stated in a press release,

Ashley Petefish
Author: Ashley Petefish

“Employers should never have 100% return to work policies that require employees to have no medical restrictions. That policy tells employees that the company will not provide reasonable accommodations for employees with medical restrictions.”

What does this mean for Arizona employers?

If you are an Arizona employer with a 100% healed policy, you should contact legal counsel immediately to discuss policy revisions. While the ADA does not require employers to return every employee to work after medical leave, the law may prohibit automatic denials based on broad 100% healed requirements. Employers should consult with legal counsel to ensure their policies support a case-by-case analysis of employee accommodation requests. If you have a 100% healed policy, or have questions or concerns about your current accommodation and equal employment policies, contact the Milligan Lawless attorney with whom you usually work.

In the wake of the #MeToo movement, the United States Equal Employment Opportunity Commission (EEOC) has sent a message to employers that cracking down on workplace sexual harassment continues to be an enforcement priority. Immediately following a meeting last June that reconvened the EEOC’s Select Task Force on the Study of Harassment in the Workplace, the agency announced the filing of seven separate lawsuits against employers throughout the country over allegations of sexual harassment and other forms of misconduct.

The EEOC’s actions demonstrate the need for employers to take proactive measures toward eliminating and preventing sexual harassment within their workforce.

What is Sexual Harassment?

Sexual harassment is broadly defined as

  • unwelcome sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature,
  • when such conduct explicitly or implicitly affects the terms and conditions of an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating or hostile work environment.

Sexual harassment can take myriad forms, including all of the following: commenting on an individual’s body or sexual attractiveness; requesting sexual favors; transmitting or displaying sexually explicit emails, texts, or images; telling obscene jokes; making offensive gestures; and engaging in unwanted touching.

Sexual harassment is considered a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.

Sexual harassment also represents significant economic costs to employers in the form of increased absenteeism, reduced productivity, higher staff turnover, and the financial/reputational damage of high-profile payouts.

A Proactive Approach

The EEOC has made clear that employers are charged with exercising reasonable care to identify and correct sexual harassment in the workplace.  To that end, employers should consider these practical steps:

Adopt a Written Anti-Harassment Policy

An employer can help minimize its exposure by adopting and communicating a strong, written anti-harassment policy.  The EEOC advises that the policy should, at a minimum, include the following elements:

  • A clear statement that harassment is not tolerated
  • The definition of sexual harassment
  • A clearly described complaint process that provides more than one avenue through which employees can report complaints – an employee’s direct supervisor should not be the only person to whom a complaint may be raised
  • Assurance that the employer protects the confidentiality of complaints to the extent possible and does not retaliate against employees who report complaints
  • Assurance that the employer will promptly and thoroughly investigate complaints and take immediate corrective and appropriate action when it has determined that harassment has occurred

Employers should include the policy in their employee handbooks and distribute to all employees.

Provide Effective Training

Employers should provide sexual harassment training to all levels of employees.  Employers should also consider providing additional and separate training to management.

The EEOC states that anti-harassment training is most effective when it is, among other things:

  • Championed by senior management
  • Repeated and reinforced regularly
  • Provided in a clear, easy to understand style and format
  • Provided in all languages commonly used by employees
  • Tailored to the specific workplace and workforce
  • Conducted by qualified, live, interactive trainers or, if live training is not available, designed to encourage active participation
  • Routinely evaluated by participants and revised if necessary

Conduct Appropriate Investigations & Take Effective Remedial Action  

When an employee reports a complaint of sexual harassment, employers can help protect themselves by promptly investigating the claim.  As soon as an employer learns of a complaint, it should determine whether a fact-finding investigation is necessary and how it will be conducted.  To the extent possible, investigations should be kept confidential.

In the event that an employer determines that harassment has occurred, it must undertake immediate and appropriate corrective measures.  Corrective measures should be designed to stop the harassment, correct its effects on the complainant, and ensure that the harassment does not recur.

Employers should keep in mind that corrective measures that adversely affect or penalize the complainant could constitute unlawful retaliation.

Kylie Mote
Kylie Mote

Consult with Legal Counsel for Additional Information

Employers that would like more information about workplace sexual harassment, including advice on creating and implementing effective anti-harassment policies, may contact the attorneys at Milligan Lawless for assistance.