The EEOC Litigation Review - 2023 - Report - Page 20
accumulate 12 points would render someone unable to perform the essential functions
of his job, or whether excusing points incurred due to a disability would have been a
reasonable accommodation. The defendants also argued that the decision-makers who
made termination decisions based on excess points did not know about a claimant’s
disability or need for an accommodation. The court rejected this argument on the
grounds that a reasonable fact-finder could infer that an employee triggered the
defendants’ obligation to reasonably accommodate the claimant’s disability by notifying
his manager or supervisor of his disability and need for accommodation. Id. at *49. For
these reasons, the court denied the parties’ cross-motions for summary judgment.
The Commission also prosecuted a systemic ADA case in 2022 entitled EEOC. v. Yale
New Haven Hospital, Inc., 2022 U.S. Dist. LEXIS 76325 (D. Conn. Apr.7, 2022). The
EEOC asserted that the defendant violated the ADA by maintaining a policy requiring
medical providers over age 70 take neuropsychological and eye exams to renew their
staff privileges. The EEOC filed a motion seeking leave to file a motion for partial
summary judgment, arguing that the defendant admitted the elements of the EEOC’s
prima facie claim, and therefore the only remaining issue was whether the examinations
under the defendant’s policy were “job-related and consistent with business necessity."
Id. at *2. The defendant argued that allowing the motion at this stage of the litigation,
while discovery was on-going, would be prejudicial. The defendant contended that the
EEOC had not yet responded to all requested discovery, and that expert discovery
would be on-going and was crucial to its defenses in this matter. The court agreed with
the defendant that it was still developing evidence in the discovery period relevant to its
business necessity defense, and therefore ruled that summary judgment was
premature. The court therefore denied the EEOC’s motion for leave to file a motion for
partial summary judgment. Instead, it ruled that the EEOC could file the motion following
the close of discovery.
B.
Preliminary Injunctions And TROs
The EEOC’s track record in seeking emergency relief in the courts was mixed in 2022.
The most significant case in this respect is EEOC v. BNSF Railway Co., Case No. 21CV-369 (D. Neb. Apr. 28, 2022), where the court denied the EEOC’s request for a
temporary restraining order (TRO) to prevent alleged discriminatory conduct. The EEOC
sought an order reinstating an employee, Rena Merker, to work and prohibiting BNSF
from engaging in retaliatory action against employees who seek to cooperate with the
EEOC in its pending lawsuit against BNSF. In BNSF, Merker, a train conductor, filed a
charge of discrimination with the EEOC on January 18, 2018, alleging on behalf of
herself and other aggrieved individuals in non-management positions that they had
been subjected to a pattern or practice of gender discrimination, sexual harassment,
sex discrimination, and retaliation for opposing such alleged discrimination and
harassment. Id. at 1-2. On November 24, 2020, the EEOC issued a letter of
determination stating that the EEOC had reasonable cause to believe that BNSF
violated Title VII because Merker and other female employees were subjected to
harassment and Merker was disciplined for complaining about the alleged harassment.
Id. at 2. The EEOC was unable to reach a conciliation agreement with BNSF. Id. On
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The EEOC Litigation Review – 2023
