Legal Bulletins

The Baltimore District Office of the Equal Employment Opportunity Commission has gained the reputation for litigating cases on behalf of employees who may have been unable to obtain legal representation or that involve significant legal and policy issues. A review of the docket of the United States District Court in Maryland shows that the Baltimore Office’s high level of activity has continued unabated during 2006.

According to the court’s records, the Baltimore Office has filed one case seeking enforcement of an administrative subpoena and 23 employment discrimination cases under the federal civil rights laws, including Title VII, the American Disabilities Act, and the Equal Pay Act. As might be expected, the claims run the gamut from religious, pregnancy, gender, race, and age discrimination.

An analysis of the complaints reveals that 12 of the 23 discrimination cases allege hostile environment sexual harassment claims that did not include any allegations of quid pro quo harassment. Only five of the cases involve claims that more than one employee (usually two to three women) had been subjected to the harassment. Thus, apparently there was no systemic or pattern of harassment presented by the cases. Eight of the cases include claims that the employer had retaliated against the employees who had complained about the harassment and three of the cases allege claims for constructive discharge. The Baltimore Office has tended to take up an employee’s cause in this type of case if the harassment reached extreme levels or the employer’s retaliation posed a direct threat to the enforcement scheme established by Title VII.

In addition, juries are typically more receptive to retaliation claims primarily because they are inclined to believe that supervisors, who are the targets of discrimination complaints lodged internally or with an agency, will resent what the employee has done and will retaliate in some way. Hence, inclusion of a retaliation claim typically increases the EEOC’s chances of succeeding in at least part of the case.

An ADA case filed by the Baltimore Office presents controversial legal issues. In EEOC v. Denny’s, Inc., the complaint alleges that the employer violated the ADA by maintaining and enforcing a leave of absence of policy that provided for the termination of employment of any employee (including employees who were, and who were not, disabled for purposes of the ADA) who was unable to return to their job after receiving a continuous or intermittent leave of absence totaling 26 weeks, or in some instances 12 weeks.

According to the EEOC, Denny’s policy does not reasonably accommodate disabled employees by failing to provide them with what would apparently be leaves of absence for indeterminate periods. The Complaint seeks an order requiring Denny’s to amend its policy to provide additional leave beyond the current caps.

If granted, such relief would create a system that differentiates between employees who are disabled under the ADA and those who suffer from serious medical conditions, as defined by the Family and Medical Leave Act that do not rise to the level of a disability. If an employee is diagnosed with a condition that is not an ADA disability, the employer could terminate the employee who has exhausted his/her leave entitlement under FMLA or a more generous plan provided by the employer. On the other hand, an employer could not legally terminate the employment of an employee whose serious medical condition also constitutes a disability under the ADA. In other words, such an employee would be entitled to what might be called an unending “super FMLA leave.” The relief sought by the EEOC in this case ignores long-standing Fourth Circuit precedents which hold that an employer does not violate the reasonable accommodation provisions of the ADA by refusing to give a disabled employee a leave of absence for an indeterminate duration. See Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995).

Some conclusions can be drawn from the types of cases being filed by the Baltimore Office of the EEOC. First, the Baltimore Office apparently believes that lawsuits filed by the private bar have not succeeded in reducing the incidence of sexual harassment in the workplace. Second, the Baltimore Office reacts aggressively to protect employees who have complained about harassment and retaliation. Third, the Baltimore Office does not shy away from litigating issues even when the courts are likely to reject the EEOC’s interpretation of employment discrimination laws.