©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 45 that qualifies as “medical examination,” before giving the candidate a conditional offer of employment. The guidance concludes by providing employers with promising practices to be followed when assessing job applicants and employees with AI tools. The EEOC provides several examples of how the above three ADA violations could be implicated. For example, if an employer administers a test through computer software, it risks violating the ADA if it fails to offer extended time or an alternative version of a test, such as one that is compatible with accessible technology (like a screen reader) as a reasonable accommodation to those who need it on account of their disability. Similarly, employers may run afoul of the law if AI and other tools result in lower scores or assessment results for individuals with disabilities. The EEOC recommends several promising practices for employers when using AI tools, such as: training staff to recognize and process requests for reasonable accommodations as quickly as possible; informing job applicants and employees that reasonable accommodations are available for individuals with covered disabilities; ensuring that AI tools only measure abilities or qualifications that are truly necessary for the job; and confirming, before purchase, with AI vendors that the AI tool does not ask individuals questions likely to elicit information about a disability. b. EEOC Pursues An Anomalous ADA Title V Claim A noteworthy development in disability discrimination litigation this year in the recruitment and hiring realm was the EEOC’s willingness to pursue a novel claim as a means for recovering on behalf of a class of allegedly disabled individuals. In EEOC v. Geisinger Health, et al.,137 the U.S. District Court for the Eastern District of Pennsylvania ruled against the EEOC at the motion to dismiss stage, with two exceptions. Most notably, the EEOC was permitted to pursue a claim under Title V of the Americans with Disabilities Act (“ADA”), a rarely utilized section of the ADA that prohibits “interference” with the exercise or enjoyment of any right granted or protected by the ADA. The court’s willingness to entertain this rare claim past the pleadings stage renders this ruling an especially important read for companies faced with ADA litigation. In Geisinger Health, the EEOC brought an enforcement action against various Geisinger entities on behalf of a former nurse of Geisinger Wyoming Valley Medical Center, Rosemary Casterline, and other aggrieved former and current employees. The EEOC alleges the Geisinger Defendants violated Title I of the ADA by discriminating against and failing to accommodate Casterline and others who took medical leave by requiring them to re-apply and compete for employment opportunities to return to work and requiring them to be the “most qualified” applicant. For similar reasons, the EEOC additionally claims that Defendants retaliated against Casterline and other employees and interfered with their ADA rights, in violation of Title V. The Defendants moved to dismiss on all counts. The Court ruled in favor of Defendants on all but two issues. As to those decided in favor of Geisinger, the court held that the EEOC: 1) failed to plead facts sufficient to allege that the various Geisinger entities were a single employer, thus requiring dismissal of four of the seven named Defendants; 2) failed to plausibly allege that Casterline was a qualified individual with a disability, thus eviscerating her individual claim and negating the EEOC’s effort to identify a “class;” 3) failed to sufficiently allege that otherwise untimely claims could move forward under a continuing violation theory, thus limiting claims to those occurring within the 300-day statutory window; and (4) failed to plead a causal connection between Casterline’s alleged protected activity and her termination or Geisinger’s failure to accommodate her, thus requiring dismissal of the EEOC’s ADA retaliation claim. Though undoubtedly a win for employers (for the most part), perhaps most interesting are the issues that are now ripe for summary judgment. Specifically, the court permitted the EEOC to further pursue its claim under the anomalous ADA Title V, as well as its claim that Geisinger’s policy of hiring the most qualified applicants 137 EEOC v. Geisinger Health, No. CV 21-4294-KSM, 2022 WL 10208553, at *1 (E.D. Pa. Oct. 17, 2022)
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