54 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP while white employees were taken to indoor bathrooms. The complaint allegations also assert that the employer prevented Black members of a crew from finding alternative employment by contacting a future employer and requesting that they not hire them. EEOC v. Public Service Company of New Mexico, et al., 1:23-cv-00848 (D.N.M.) The EEOC filed suit on behalf of all employees impacted by one of three policies of the employer. First, the EEOC alleged that the employer violated the ADA by implementing a practice of not allowing employees to return from medical leave unless they are released to return to “full duty” or “without medical restrictions.” Second, the EEOC alleged that the company placed employees who were unable to return to work without restrictions within 90 days into unpaid leave status and removed them from their current jobs. And finally, the EEOC alleged that the employer refused to reassign employees with disabilities to vacant positions they were qualified for as a possible reasonable accommodation. D Retail Industry Profile The EEOC filed a number of lawsuits against retail companies in 2023, with an emphasis on disability claims. The ADA claims focused (as many do) on discipline due to attendance and pre-employment qualifications. There also was an increase in cases related to cognitive and hearing impairments, including cases related to pre-hiring standardized tests and the availability of ASL interpreters during daily employee meetings. This is an area of interest for the EEOC, which released updated guidance on hearing-related accommodations in January 2023. KEY CASES FILED IN FY 2023 EEOC v. Walmart Inc., Case No. 2:23-cv-02395 (D. Kansas) The EEOC filed suit on behalf of two deaf employees working as overnight stockers at the same store. The employees requested ASL interpreters to be present at safety and department meetings but were told the employer could not afford to provide qualified interpreters. An assistant manager attempted to translate, but the suit alleges this effort was ineffective and at times information was only communicated verbally. According to the EEOC, the employees were unable to understand the purpose and content of meetings, nor could they understand directions or counseling on numerous occasions, and both resigned. The EEOC alleges a failure to accommodate and constructive discharge. EEOC v. Wal-Mart Stores East LP, Case Nos. 5:23-cv-218, 5:23-cv-160 (E.D. North Carolina) In separate suits involving two different stores, the EEOC alleged that two employees (one a manager, the other a cashier) were disciplined and eventually terminated for attendance violations, despite each employee informing the store that the absences were related to their epilepsy. These two cases, as well as another seizure-related case in Arizona, suggest a focus area for the EEOC on epilepsy-related accommodations. 17 Retail Industry Merit Cases Filed in FY 2023 Philadelphia Charlotte Phoenix St. Louis Atlanta Memphis Birmingham Dallas Miami New York 4 3 1 1 1 1 1 1 2 2 EEOC District Offices Bringing Suit & Number of Lawsuits Brought by Each District Statutory Basis for Suit 10: ADA 7: Title VII 1: ADEA
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