A federal Fair Housing Act lawsuit filed by the U.S. Justice Department against a large Dallas-based construction and development company Tuesday, March 10, 2009 and the settlement of a United Airlines employment disability discrimination lawsuit announced by the Equal Employment Opportunity Commission (EEOC) on March 16, 2009 provide a warning to all U.S. businesses to strengthen their employment and other nondiscrimination policies and practices. The actions highlight the growing exposures that businesses face to employment and other discrimination claims under Federal law.
JPS Fair Housing Act & ADA Suit
The Justice Department’s suit against JPS coincides with a surge in filings of employment discrimination claims and on the heels of Congresses enactment of pro-plaintiff amendments to employment and other federal discrimination laws like those enacted under the ADA Amendments Act of 2008 signed into law last September. As the Obama Administration and the Democratic Majority in Congress continue to push for further liberalization of these laws, the JPI lawsuit provides tangible confirmation of the Obama Administration’s emphasis on enforcement of federal nondiscrimination laws. The Justice Department’s proclamation in its announcement of its filing of the suit against JPI that “Fighting illegal housing discrimination is a top priority” affirms this commitment under the Fair Housing Act. See “Justice Department Sues Large Multi-Family Housing Developer Alleging Disability-Based Housing Discrimination, U.S. Justice Department (March 10, 2009) at http://www.usdoj.gov/opa/pr/2009/March/09-crt-187.html.
The Justice Department lawsuit charges JPI Construction L.P. (JPI) and six JPI-affiliated companies (JPI) with violating the Fair Housing Act and the public accommodations provisions of the Americans With Disabilities Act (ADA) by the failing to provide allegedly required accessible features at multi-family housing developments in Texas and other states. The Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability.
According to the complaint, the JPI defendants failed to design and construct accessible dwelling units and public and common use areas at Jefferson Center Apartments in Austin, Texas; Jefferson at Mission Gate Apartments in Plano, Texas; and additional multi-family housing complexes in other states. The complaint alleges certain complexes designed and constructed by the JPI defendants have inaccessible steps and curbs leading to units, steeply sloped routes leading to units, and no accessible routes to site amenities, including inaccessible trash facilities, barbeque grills and cookout tables. In addition, certain housing units have narrow doors and hallways; kitchens that lack accessible clear floor space at the sinks, ranges and refrigerators; bathrooms that lack accessible clear floor space at the toilets and tubs; and thermostats that are mounted too high to be accessible to a person using a wheelchair. The Justice Department complaint asks the court to order monetary damages to victims of the alleged discrimination, to issue a court order requiring the defendants to modify the complexes to bring them into compliance with federal law, to prohibit future discrimination by the JPI defendants, and to assess civil penalties.
United Airlines & Other Evidence of Rising Employment Discrimination Exposures
The JPI lawsuit is one of many signs of the rising discrimination exposures businesses face under federal discrimination laws. Employment discrimination risks also are soaring and the tightening economy promises to add further fuel to the fire. Equal Employment Opportunity Commission (EEOC) statistics show workplace discrimination charge filings nationwide soared to an unprecedented level of 95,402 during Fiscal Year (FY) 2008, up 15 percent over the previous fiscal year. All major categories of charge filings in the private sector including suits against private employers, as well as state and local governments increased. Charges based on age and retaliation saw the largest annual increases, while allegations based on race, sex and retaliation continued as the most frequently filed charges. The surge in charge filings may be due to multiple factors, including economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of the law, EEOC’s focus on systemic litigation, and changes to EEOC’s intake practices.
The EEOC also continues to vigorously pursue disability and other discrimination charges. On March 16, 2009, for example, the EEOC announced United Airlines has agreed to pay $850,000 and to change its light duty policies to settle a federal lawsuit brought by the EEOC that alleged that the company’s policy of denying overtime work to anyone on light duty violated the Americans With Disabilities Act (ADA). The EEOC charged that the policy had greater repercussions for employees with disabilities, since these workers were more likely to be assigned to light United will pay the $850,000 to a class of employees with disabilities denied the opportunity to work overtime while placed on light or limited duty. duty when medically cleared to work overtime. The settlement also requires United to notify all current and former employees at the San Francisco Airport who were subject to the rescinded policy and invite them to submit claims to share in the $850,000.
Businesses Must Act To Manage Risks
In this increasingly risky climate, businesses should review and update their existing policies and practices prohibiting unlawful discrimination in employment and the provision of services based on race, color, religion, sex, familial status, national origin, disability, veteran status or other grounds prohibited by law and take other steps to prepare to demonstrate their compliance with federal nondiscrimination laws in operation as well as form. While adopting and communicating appropriate policies prohibiting unlawful discrimination in the provisions of goods, services, and employment is an important element of these compliance efforts, businesses also must take appropriate steps to ensure their operations match the words of their policies. Businesses should not assume that the usual recital of their equal employment and services policies alone will suffice. Businesses also need to have and administer well-documented practices and procedures governing the report, investigation and disposition of complaints. These procedures should include clearly written and well communicated procedures to be used to report suspected violations. Businesses also must establish and communicate clear procedures requiring employees both to comply with these rules and to report known or suspected violations. Businesses also should train workforce members on these policies and procedures and consequences for their violation. Businesses also should consider establishing compliance hotlines and using other compliance audit processes to monitor and address possible violations. They should be prepared to demonstrate they take seriously and take appropriate action to investigate suspected violations, to rectify confirmed violations, and to appropriately discipline employees or others that participate in prohibited violations.
Businesses needing advice or assistance to review or defend existing disability and other non-discrimination policies and practices should contact Cynthia Marcotte Stamer at 469.767.8872 or via e-mail to cstamer@solutionslawyer.net. To register for future updates or to review other recent updates, helpful links and information about employment and other internal controls matters, or the author, see CynthiaStamer. com.
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