Employment Law Daily EEOC can proceed with systemic failure-to-accommodate case against FedEx Ground
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Thursday, January 28, 2016

EEOC can proceed with systemic failure-to-accommodate case against FedEx Ground

By Joy P. Waltemath, J.D. Denying FedEx Ground’s motion to dismiss the EEOC’s failure-to-accommodate claims under the ADA on behalf of 17 deaf or hard-of-hearing individuals and “other similarly aggrieved individuals” who were either package handlers or who applied for those jobs, a federal district court in Pennsylvania found that the agency was not required to bring the claims as multiple individual lawsuits, nor did it need to identify any singular discriminatory procedure or policy to litigate a systemic disability discrimination claim. Although establishing that individuals are “qualified” is a predicate to ADA claims, that did not make proceeding collectively inappropriate here, where all claimants and potential claimants shared a common disability (deaf or hard-of-hearing), and sought or held a common package handler position, which itself had commonly applicable, easily identifiable, and easily provable qualification standards. Moreover, the EEOC is not subject to Rule 23’s requirements (EEOC v. FedEx Ground Package System, Inc., January 25, 2016, Hornak, M.). EEOC lawsuit. The EEOC contends that FedEx Ground violated the ADA by discriminating against 17 deaf or hard-of-hearing individuals who worked in or applied for package handler positions, an entry-level position with “modest job qualifications” according to the court (at least 18 years old, pass a criminal background check). The job involves loading and unloading delivery vehicles, using the conveyor systems, scanning, sorting, and routing packages. Package handlers perform tasks that would require accommodation for deaf or hard-of-hearing individuals: Scanners used to scan package barcodes emit an audible beep, and regular meetings and training included auditory presentations and/or videos. Claiming that in all phases of hiring, training, orienting, and employing package handlers, FedEx Ground failed to make reasonable accommodations for deaf and hard-of-hearing individuals or to participate in the interactive process, the EEOC conducted a national systemic investigation, issued letters of determination on behalf of those 17 individuals and, after unsuccessful conciliation, filed suit on behalf of the 17 individuals “and other similarly aggrieved individuals.” FedEx motions. Moving to dismiss or strike the “pattern or practice” claims, FedEx Ground argued that the EEOC must prove that unlawful disability discrimination resulted from some discrete and specific policy or procedure and that each deaf and hard-of-hearing individual is "qualified" under the ADA. This, FedEx Ground maintains, is an inherently fact-specific and individualized analysis precluding any sort of classwide or "pattern or practice" treatment. EEOC statutory litigation authority. The court concluded, however, that FedEx Ground was confusing what the EEOC could allege with how it could prove its allegations. The agency’s statutory authority allows it to bring a suit on behalf of particular individuals in order to remedy discrete events of employment discrimination. But it also may sue to vindicate rights protected by federal antidiscrimination laws wholly apart from securing relief for individual victims. The agency is not simply a proxy for aggrieved individuals; the EEOC litigates in the public interest. Section 706 of the ADA (incorporating the authorizing provision of Title VII) confers direct, statutory authority on the EEOC to litigate claims of systemic employment discrimination for the benefit of a group of aggrieved individuals, including “seeking to eradicate employment discrimination on the basis of disability.” Qualified individual predicate for ADA claims. A predicate to claims under the ADA (including failure-to-accommodate claims) is that claimants must be “qualified” to perform, with or without reasonable accommodation, the position’s essential functions. This differs from other discrimination suits under Title VII, and FedEx claimed this qualification predicate made the EEOC's suit inappropriate for any form of collective litigation or remedy. Rule 23 contrasted. FedEx Ground's fundamental argument cited Hohider v. UPS, Inc., a 2009 Third Circuit decision, to mean that the EEOC’s ADA claims here could not be litigated on a classwide or pattern-or-practice basis as a matter of law. Importantly, however, Hohider involved a group of private plaintiffs who tried to bring a Rule 23 class action alleging that UPS discriminated against them by failing to accommodate their disabilities after returning from medical leaves of absence. The Third Circuit held their claims “cannot be adjudicated within the parameters of Rule 23" because the qualification issue involved claims “too individualized and divergent” to warrant certification. Hohider involved plaintiffs (in an alleged class of 36,000) in a wide variety of jobs with a wide variety of disabilities; “there was no unifying disability, or even a unifying job, position, or decisional process that brought them together,” said the court. In contrast, “the EEOC is not subject to Rule 23's requirements,” continued the court. Thus, Hohider's central holding simply did not apply. But even considering FedEx Ground’s modified argument that Hohider meant instead that “divergent and individualized inquiries into qualified status” remained, rendering classwide treatment inappropriate, FedEx still could not prevail. Here, the claimants and potential class members (168 at this point) shared a common disability (hearing impairment), and sought or held a common package handler position, which itself had easily ascertainable qualifications. Because the EEOC is not subject to Rule 23 requirements when litigating as a plaintiff and had pled that the aggrieved individuals shared the same identified disability and were qualified for the discrete package handler position, the court found no bar, at the motion to dismiss stage, to the classwide litigation of this case by the EEOC. Evidentiary treatment. Another argument FedEx Ground made in an attempt to dismiss the complaint was that the EEOC could proceed only as to “either: (1) discrimination relating to a specific discriminatory procedure or policy that can be proven only with the Teamsters evidentiary framework, or (2) claims that do not identify a specific procedure or policy and thus cannot, under any circumstances, be subject to any form of collective treatment.” EEOC’s response was that it was simply bringing a disability discrimination case affecting a number of individuals (starting with the 17 named in its complaint) who had one overall disability affecting their hearing. Pattern or practice. FedEx Ground was misled when it contended that the EEOC was necessarily required to show it engaged in a pattern or practice of discrimination; pattern or practice is not itself a legal claim, it is an evidentiary framework within which discrimination can be shown, instructed the court. FedEx essentially argued that although EEOC was invoking its Section 706 authority, it was required to meet the standard under Section 707, which the court said did not add up (although it did agree the agency was, to a certain degree, “trying to have it both ways”). Nonetheless, the EEOC was required here to demonstrate a prima facie case, not one specific policy or procedure or a pattern or practice. (The court also noted that the complaint actually could be construed as alleging an unlawful blanket policy to not implement a corporate-wide procedure for accommodating hearing-impaired individuals, since the ADA imposes affirmative obligations on employers to engage in the interactive process to make reasonable accommodations.) As to the motion to strike, the court found little to support the argument that the “pattern or practice” claims were immaterial, impertinent, or scandalous as those terms are used in Rule 12(f). Where the EEOC had given FedEx Ground a list of 168 aggrieved individuals, FedEx Ground was on notice of the alleged ADA violations, and the EEOC had pleaded sufficient facts to state a legally and factually plausible claim, there was no reason to strike anything.

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