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Dec 212012

600-01195064Do you think what goes on behind closed exam room doors at the doctor’s office is a personal and private matter and confidential information about your health goes no further than the medical records department? Your employer’s policy may dictate otherwise.

Current and former employees of Dillard’s Inc., a national retail chain, found that to be the case. Just this week, the company agreed to pay $2 million and has committed to extensive injunctive relief to resolve a 4-year-old class action disability discrimination lawsuit filed by the EEOC.

The suit challenged the legality of Dillard’s longstanding policy requiring workers to divulge confidential medical information to be approved for sick leave and terminated those who did not feel comfortable revealing such information. Dillard’s allegedly also violated the ADA by firing workers who took more than their allotted sick time.

Originally, the EEOC filed suit in 2008 on behalf of employees, including Corina Scott, a former cosmetics counter employee at an El Centro, California Dillard’s store, who had been required since 2005 to disclose specifics of their medical conditions in order to take sick time. Scott says, “It was humiliating to be fired after expressing my right to keep my medical information private.”

Although they had verifications from doctors ensuring Dillard’s that their absences were indeed medically- related, many of the employees did not feel comfortable sharing the specifics. According to the EEOC, Scott, who was absent just four days, was among those fired in retaliation for refusal to provide details of her medical condition after acting on doctor’s advice not to disclose personal medical information in accordance with the law.

The EEOC alleged that Dillard’s disclosure policy violated the ADA which prohibits employers from making inquiries into the disabilities of their employees unless it is job-related and necessary for the conduct of business and that the company failed to properly determine if additional leave was allowed as accommodation of the employee’s disability under the ADA.

The District Court sided with the EEOC ruling that that Dillard’s policy was facially discriminatory under the ADA and the parties entered into a three-year consent decree. Dillard’s will pay $2 million to identified victims and establish a class fund for currently unidentified victims who suffered similar discrimination during the relevant time period. “I’m grateful to the EEOC for assisting me and the many other workers who were also affected,” says Scott.

Additional persons may be eligible for monetary rewards as part of the settlement and the EEOC expects to identify thousands of victims across the U.S. through the claims notice process designed to distribute the class fund arising from the settlement.

Furthermore, Dillard’s must hire a consultant with ADA experience to review and revise company policies as deemed appropriate; post documentation related to the settlement; implement training for supervisors and staff on the ADA with emphasis on medical enquiries and maximum leave policies; and develop a centralized tracking system for employee complaints involving disability discrimination. Dillard’s will submit annual reports to the EEOC verifying their compliance.

Speaking on behalf of the EEOC, Anna Park, regional attorney for the Los Angeles District Office says, “We commend Dillard’s for agreeing to measures that will prevent and effectively address potential disability discrimination. Policies and practices that permit medical inquiries without proof of a valid business necessity run afoul of the law, often having large-scale consequences.” She also issues a reminder that “all employers should carefully examine their own policies and practices to ensure compliance with federal law.”

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