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Hospital worker denied request to work in ‘non-Covid’ unit beats motion to dismiss

Hospital worker denied request to work in ‘non-Covid’ unit beats motion to dismiss

By Marjorie Johnson, J.D. A hospital employee defeated a motion to dismiss her ADA claims asserting she was denied her request to be assigned to “non-Covid” work areas as a reasonable accommodation for disabilities that placed her at a higher risk of serious COVID-19 complications. A federal district court in Alabama ruled that although the hospital argued that her request was not reasonable since it was not “physically possible” to keep her “from potential exposure to Covid positive coworkers or patients,” she did not assert that she sought to only be assigned to departments where there was no chance of COVID-19 exposure. Rather, she claimed that she asked to be assigned to an available “non-Covid floor” or “non-Covid department” where the risks of COVID-19 exposure were lower, even if not non-existent (Chambers v. The Houston County Health Care Authority, September 20, 2021, Marks, E.). Higher risk for COVID-19. In 2018, the employee began working for the hospital as a mental health technician in the behavioral medicine unit (BMU). She suffered from anxiety, anemia, insomnia, and sarcoidosis (a disease characterized by the growth of tiny collections of inflammatory cells in an individual’s body, most commonly the lungs and lymph nodes). These physical and mental impairments substantially limited her major life activities and also placed her at a higher risk of serious complications if she contracted COVID-19. Granted request for “non-Covid floor.” Due to the COVID-19 outbreak in March 2020, the hospital began to furlough or reassign employees to different departments throughout the hospital. The employee asked her supervisor that she be assigned to “non-Covid floors” as an accommodation for her disabilities and the attendant risks associated with COVID-19. Granting her request, the supervisor placed her on a “non-Covid floor.” New scheduling system. About three weeks later, the hospital implemented a “labor pool” comprised of all available positions that were to be filled each day. Under the new system, staff reported to the scheduling coordinator at the beginning of each shift for their job assignments. Because the employee’s first assignment was in the ER with COVID-19 patients, she requested a different location and was assigned to the cancer center, which she claimed was a “non-Covid department.” Though the employee also reminded her supervisor about her request for an accommodation to work in available departments on “non-Covid floors,” she was repeatedly assigned to work in departments with COVID-19 patients. On May 1, 2020, she was again assigned to the ER and tried to call her supervisor to ask if there were other available positions that day in “non-Covid departments,” but the supervisor refused to take or return her calls. She then spoke to the scheduling coordinator and was re-assigned to work at the information desk, which was a “non-Covid department.” Her supervisor subsequently told her that she could not return to the BMU and needed to continue to report to the labor pool, even though at least four coworkers were allegedly allowed to continue working in the “non-Covid departments.” Around the same time, she …

EEOC Sues Pilot Freight Services for Disability Discrimination

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EEOC Sues Pilot Freight Services for Disability Discrimination

ATLANTA – Pilot Freight Services, Inc., an international freight shipping and logistics company based in Atlanta, unlawfully fired its international manager because of his cancer, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed.According to the EEOC’s suit, on or about June 7, 2019, Thomas Hunt informed his manager that he needed to request leave to see his doctor about some biopsy results. About 10 days later, Hunt was terminated by Pilot, allegedly as a result of a reduction in force. Pilot claimed that Hunt was laid off because he had less tenure than other employees and his position was eliminated. However, in the months leading up to and following Hunt’s discharge, Pilot hired several employees who were not discharged based on tenure and hired an employee in a position very similar to the one that Hunt previously held, and with a higher salary.

Such conduct violates the Americans with Disability Act (ADA). The EEOC filed suit (Civil Action No. 1:21-CV-3936-MLB-LTW) in U.S. District Court for the Northern District of Georgia, Atlanta Division, after first attempting to reach a pre-litigation settlement via its conciliation process. The EEOC is seeking back pay, compensatory damages, and punitive damages for Hunt, as well as injunctive relief to prevent future discrimination.

“The ADA prohibits employers from terminating their employees because of a disability and denying them equal employment opportunities,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office. “As it is in this case, a reduction in workforce is often a facade for discrimination and employers will not be shielded by it.”

Darrell Graham, district director of the Atlanta office, said, “Cancer is a big enough catastrophe for anyone without an employer piling on and firing him or her because of the disease. It’s cruel and unlawful. The EEOC is committed to enforcing the ADA to protect the rights of such aggrieved employees.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

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EEOC Sues Focus Companies Group of Nevada for Sexual Harassment and Retaliation

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EEOC Sues Focus Companies Group of Nevada for Sexual Harassment and Retaliation

LAS VEGAS –  Focus Plumbing, LLC, Focus Electric, LLC, Focus Concrete, LLC, Focus Fire Protection, LLC, and Focus Framing, Door & Trim (collectively dba “Focus Companies Group of Nevada”) violated federal law by allowing a class of female workers to be subjected to sexual harassment and retaliation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.According to EEOC’s lawsuit, since at least 2017, Focus allowed a class of female workers to be subjected to sexual harassment by male supervisors and co-workers at various construction sites in the Las Vegas area. The sexual harassment included forcible kissing, unwanted grabbing and groping of arms, legs, buttocks, and breasts, and forcible touching of a man’s genitalia. The EEOC contends that the employees were also subjected to sexually offensive and vulgar language, lewd facial expressions, and threats of violence if they did not acquiesce to the harassment. For those that did complain of sexual harassment, the EEOC alleges that Focus failed to address their concerns and instead retaliated against them. As a result of its failure to address the hostile work environment, some employees felt they had no choice but to quit, according to the EEOC’s suit.
 
Such alleged conduct violates Title VII of the Civil Rights Act of 1964. EEOC filed its suit against the company in U.S. District Court for Nevada (EEOC v. Focus Plumbing, LLC, et al., Case No: 2:21-cv-01758-GMN-EJY) after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC’s suit seeks monetary damages for the class of victims, as well as injunctive relief intended to prevent and correct discrimination.

“The EEOC remains steadfast in rooting out employment discrimination, particularly against those who may not know their rights due to limited English proficiency and their heightened vulnerability to discrimination and harassment,” said Anna Park, regional attorney for EEOC’s Los Angeles district office, whose jurisdiction includes Las Vegas.

Michael Mendoza, director of EEOC’s Las Vegas Local office, added, “It is imperative that employers, especially those whose workforce has been historically male, understand their responsibility to implement strong anti-harassment and retaliation policies. The responsibility falls on the employer to create a harassment-free working environment for all its employees.”

Headquartered in Las Vegas, Focus Companies Group of Nevada, is a general construction company that provides plumbing, electrical, framing, door and trim, concrete, and fire protection services for the construction of multi-family units around the state of Nevada.

Protecting vulnerable immigrant workers against sexual harassment and retaliation are national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.

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EEOC Sues Suisan Company, Ltd for Racial Harassment and Retaliation

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EEOC Sues Suisan Company, Ltd for Racial Harassment and Retaliation

HONOLULU – Suisan Company, Limited (Suisan), a food distributor on the Big Island of Hawaii, violated federal law when its supervisors created and condoned a hostile work environment riddled with racial slurs and racist references to slavery and retaliated against an employee for complaining about racial harassment, the U.S. Equal Employ¬ment Opportunity Commission (EEOC) charged in a lawsuit filed today.According to the EEOC’s lawsuit, supervisors at Suisan’s Hilo warehouse repeatedly used racial slurs involving the n-word and made racist references to slavery directed at an African American warehouse employee and then downplayed the harassment.  When the employee complained about the hostile work environment, he was suspended and then abruptly terminated the next day.     

“Race harassment remains prevalent in today’s workplaces,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Hawaii in its jurisdiction. “Employers should be vigilant in ensuring proper training and handling of complaints of harassment.”

Such alleged conduct violates the provisions against racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII). The EEOC filed its suit the U.S. District Court for the District of Hawaii (EEOC v. Suisan Company, Limited, Case No: 1:21-cv-00397-DKW-KJM) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks compensatory and punitive damages for the African American warehouse employee, as well as injunctive relief intended to prevent any future discrimination in the workplace.

Raymond Griffin, Jr., director of the EEOC’s Honolulu local office, added, “Employees have the right to protest against workplace discrimination without the fear of reprisal. Terminating an employee for speaking up about racial harassment is illegal and sends a message to others that may chill them from reporting incidents of discrimination or harassment.”

The Los Angeles District resolved three racial harassment lawsuits this year, providing more than $4 million dollars in compensation to victims of racial harassment.

According to its website, www.suisan.com, Suisan is the largest food distribution facility on the Big Island of Hawaii.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

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EEOC Files Disability Lawsuits in El Paso and Ft. Worth Based on COVID Related Discrimination

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EEOC Files Disability Lawsuits in El Paso and Ft. Worth Based on COVID Related Discrimination

DALLAS – The EEOC filed two lawsuits in Texas courts today, alleging that a pharmacy in Fabens and a coffeehouse in Ft. Worth both discriminated against employees with disabilities that rendered them vulnerable to serious illness if they contracted COVID-19. The two employers took different approaches to the virus, but both ran afoul of the ADA.According to the EEOC’s suit against U.S. Drug Mart d/b/a Fabens Pharmacy, the pharmacy discriminated against a pharmacy technician with asthma who asked to wear a facemask at work as an accommodation of his disability immediately following the COVID-19 outbreak to help protect him from the virus. The employee was harassed because he requested this accommodation and was sent home twice when he asked to wear a mask, and then taunted and humiliated for questioning management’s policy prohibiting masks, leading him to quit, according to the suit.

The EEOC filed its suit, Civil Action No. 3:21-cv-00232, in U.S. District Court for the Western District of Texas, El Paso Division, after first attempting to reach a pre-litigation settlement through its conciliation process. In this case, the EEOC seeks back pay, compensatory and punitive damages and injunctive relief.

EEOC filed suit in Ft. Worth against 151 Coffee, LLC alleging that the company violated the ADA by denying reasonable accommodation to two baristas with disabilities and terminating their employment. According to the EEOC’s complaint, the employees were not allowed to return to work until a vaccine for COVID-19 was developed, even though they were ready and willing to work.

The EEOC filed suit, Civil Action No. 4:21-cv-01081, in U.S. District Court for the Northern District of Texas, Ft. Worth Division, after first attempting to reach a pre-litigation settlement through its conciliation process. In this case, the EEOC seeks back pay, compensatory and punitive damages and injunctive relief.

“The employers in this case took actions in response to the COVID-19 pandemic that had the effect of discriminating against disabled employees in violation of the ADA,” said Meaghan Kuelbs, senior trial attorney for the EEOC. “Employees cannot be refused the opportunity to work just because their employer believes it is protecting them from illness. Absent a direct threat to the safety of themselves or others, employers cannot deny employment opportunities based on disability.”   

Added Sr. Trial Attorney Joel Clark: “Employees with disabilities should not be subjected to harassment, threats and intimidation just because they asked for a reasonable accommodation. That violates the ADA.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

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Union employees’ challenge to employer use of fingerprints to clock in and out fails

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Union employees’ challenge to employer use of fingerprints to clock in and out fails

By Ronald Miller, J.D. A class action lawsuit filed by five employees under the Illinois Biometric Information Privacy Act challenging an employer’s requirement that they use fingerprints to clock in and out was not revived on appeal. Because the employees were represented by a union for purposes of collective bargaining, the Seventh Circuit determined that it was for an arbitrator to decide whether the employer properly obtained the union’s consent before requiring employees to use fingerprints to clock in and out. Accordingly, the district court’s ruling that the suit was preempted by Section 301 of the LMRA was affirmed (Fernandez v. Kerry, Inc., September 21, 2021, Easterbrook, F.). Biometric information. Five employees filed a class action lawsuit in state court against their employer alleging that it violated the Illinois Biometric Information Privacy Act (BIPA) by requiring employees to use fingerprints to clock in and out. According to the employees, the employer did not obtain their consent before doing so. The BIPA requires private entities to obtain consent before collecting or using biometric information, including fingerprints. The employer removed the action to federal court, and then asked the district court to dismiss the suit as preempted by Section 301 of the LMRA, because resolution of the dispute depended on interpretation of collective-bargaining agreements between the employer and the union that represented employees. In Miller v. Southwest Airlines Co., the Seventh Circuit held that provisions in the Railway Labor Act parallel to Section 301 prohibit workers from bypassing their unions and engaging in direct bargaining with their employers about how to clock in and out. The BIPA permits an employee’s “legally authorized representative” to consent to the collection and use of biometric information. If an employer asserts that a union has consented, then any dispute about the accuracy of that contention is one about the meaning of a collective-bargaining agreement and must be resolved between the union and the employer. Under the LMRA it usually means arbitration. Union consent. Regardless of whether a topic of bargaining is mandatory or permissive, the union is the workers’ agent. If labor and management want to bargain collectively about particular working conditions, they are free to do so. However, workers cannot insist that management bypass the union and deal with them directly about these subjects. Here, as in Miller, the employer invoked a management rights clause. The Seventh Circuit held in Miller that it was for an adjustment board—as here it is for an arbitrator—to decide whether the employer properly obtained the union’s consent. Whether the union consented to the collection and use of biometric data was a question for decision under the CBA. Similarly, the retention and destruction schedules for biometric data, and whether employers may use third parties to implement timekeeping and identification systems, are topics for bargaining between unions and management. States cannot bypass the mechanisms of federal law and authorize direct negotiation or litigation between workers and management. Arbitration request. Moreover, the appeals court declined to send this dispute to arbitration. Aside from the fact that the …

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EEOC Sues BNSF Railway for Sexual Harassment

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EEOC Sues BNSF Railway for Sexual Harassment

ST. LOUIS – BNSF Railway Company (BNSF), a major North American freight transportation company, violated federal law by subjecting female employees at its Alliance, Nebraska railyard to a sexually hostile work environment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.According to the lawsuit, female workers at the facility were subjected to an almost daily barrage of harassing conduct and comments from male coworkers and supervisors. The alleged treatment, which has been ongoing for many years, included sexual and derogatory comments, slurs, graffiti, and sexually suggestive and nude photos of women. When female employees complained about the harassment, company supervisors allegedly brushed it off, sometimes laughing or telling the women, “welcome to the railroad”. The suit alleges BNSF, which is headquartered in Fort Worth, Texas, failed to take any action to meaningfully address the problem.  

Such alleged conduct violates Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits sexual harassment in the workplace. The EEOC’s suit, filed in U.S. District Court for Nebraska (Equal Employment Opportunity Commission v. BNSF Railway Co., Civil Action No. 8:21-cv-00369), alleges BNSF violated Title VII by failing to take reasonable steps to combat sexual harassment at its Alliance railyard. The EEOC seeks monetary relief for female employees affected by the harassment, an order prohibiting future sexual harassment, and other relief.

“There is still work to be done to ensure employees in all workplaces are able to do their jobs without the humiliation, stress, and fear caused by illegal sexual harassment,” said Andrea G. Baran, regional attorney for the EEOC’s St. Louis District Office. “This type of conduct is unlawful in every industry and workplace, whether it’s an office or a store or a railyard.”

L. Jack Vasquez, Jr., director of the EEOC’s St. Louis District office, added, “Sexual harassment has no place in the American workplace. Employers are obliged to prevent this type of conduct and must take appropriate and effective action to rid their workplaces of sexually harassing conduct.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination, including sex discrimination. The St. Louis District office oversees Missouri, Kansas, Nebraska, Oklahoma and a portion of southern Illinois.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

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Triple-S Vida, Inc. Sued by EEOC for Disability Discrimination

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Triple-S Vida, Inc. Sued by EEOC  for Disability Discrimination

San Juan, Puerto Rico – Triple-S Vida, Inc., the leading life insurance company in Puerto Rico, violated federal law by refusing to accommodate an employee with a disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.According to the EEOC’s suit, the employee worked for Triple-S Vida, Inc. (“Triple-S Vida”) as an Authorized Sales Representative, a position which required extensive driving, when she was diagnosed with fibromyalgia, which caused her bodily pain and fatigue. In 2018, the employee requested reassignment to a position that did not involve driving. Triple-S Vida refused to provide her with a reasonable accommodation such as reassignment to a vacant non-driving position for which she was qualified. Instead, Triple-S Vida directed her to apply to company postings on her own. Despite the employee’s applications over the course of several years to open positions for which she was qualified, Triple-S Vida refused to re-assign her to any of the positions to which she applied. Triple-S Vida re-assigned her to a non-driving position in 2021 only after she filed a charge with the EEOC, and the EEOC issued a letter of determination finding reasonable cause to believe Triple-S Vida had violated federal law. In addition to inflicting pain and suffering, Triple-S Vida’s refusal to accommodate the employee for years caused her health to decline.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the District of Puerto Rico (EEOC v. Triple S Vida, Inc., Case No. 3:21-cv-01463) after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks back pay and compensatory and punitive damages for the employee. The suit also seeks injunctive relief to prevent and correct disability discrimination and training of managers about federal equal employment opportunity laws.

“The Americans with Disabilities Act prohibits disability discrimination and requires that employers provide reasonable accommodations to employees’ disabilities as long as it causes no undue hardship.” said Robert E. Weisberg, regional attorney for the EEOC’s Miami District. “Under the ADA, reassignment to a vacant position is included as a possible reasonable accommodation.”

William Sanchez, director of the EEOC’s San Juan Local Office added, “Employers should keep in mind that they are bound by federal laws protecting employee rights at all times – not just after they are investigated by EEOC or other law enforcement agencies. The San Juan Local Office will be vigilant of any violation of the law.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

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EEOC Sues Presidente Supermarket for Pregnancy Discrimination

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EEOC Sues Presidente Supermarket for Pregnancy Discrimination

MIAMI – Presidente Supermarket No. 31, Inc., a Miami location in a chain of over 30 supermarkets in Florida, violated federal law by firing an employee because she was pregnant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.According to the EEOC’s suit, as soon as Presidente management learned that the employee was pregnant, the manager terminated her. The manager then told coworkers that the employee could not return to work because she was pregnant.  

Terminating an employee because of her pregnancy violates the Pregnancy Discrimination Act (PDA) and Title VII of the Civil Rights Act. The EEOC filed suit (EEOC v. Presidente Super-market No. 31, Inc., Case No. 21-cv-23411) in U.S. District Court for the Southern District of Florida after first attempting reach a voluntary pre-litigation settlement. The agency is seeking back pay and compensatory and punitive damages for the employee, as well as appropriate injunctive relief to prevent any further discriminatory practices.

“Female employees should not be forced to work with the fear of losing their jobs because they are pregnant,” said Robert E. Weisberg, regional attorney for the EEOC’s Miami District Office. “The EEOC received over 2,500 charges of pregnancy discrimination last year, and the Commission recovered over $15 million in relief for victims of pregnancy discrimination. We will continue to fight for female employees’ right to work and have children.”

Paul Valenti, director of the EEOC’s Miami’s District Office, emphasized, “A pregnant worker is often in special need of the job security afforded by the PDA to be able to continue earning money for her growing family. It is important that employers understand that they cannot fire a woman simply because she is pregnant and will need maternity leave.”  

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

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EEOC Sues Stevens Transport for Disability Discrimination

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EEOC Sues Stevens Transport for Disability Discrimination

DALLAS – A refrigerated transport carrier that services major companies in need of over-the-road trucking violated federal law by discriminating against an applicant based on his disability, hyper-tension, and because it regarded him as disabled, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. The EEOC’s suit also alleges that Stevens Transport, Inc. violated the law when it asked the applicant a disability-related question before an offer of employment was made.According to the EEOC’s lawsuit against Dallas-based Stevens Transport, the applicant applied to work for the company in August 2019. During his interview, the applicant was asked whether a gap in his employment reflected on his resume was related to a medical reason. That question led the applicant to disclose that he had been diagnosed with hypertension in a previous job, which caused him to require medical leave. The EEOC’s suit alleges that Stevens Transport did not hire him because he disclosed his prior use of medical leave during the job interview.

 Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and limits an employer’s ability to make disability-related inquiries. The EEOC filed suit, Civil Action No. 3:21-cv-02272, in U.S. District Court for the Northern District of Texas, Dallas Division, after first attempting to reach a pre-litigation settlement through its conciliation process. In this case, the EEOC seeks back pay and compensatory and punitive damages, as well as injunctive relief, including an order barring Stevens Transport from engaging in discriminatory treatment in the future.

“Employers may not make any disability-related inquiries before a job offer has been made,” said Meaghan Kuelbs, senior trial attorney in the EEOC’s Dallas District Office. “And, should such information be elicited during the application process, the ADA expressly prohibits the exclusion of a candidate for hire simply because of his status as a person with a disability.”

Suzanne Anderson, acting regional attorney for the Dallas District Office, added, “It is critical for employers to carefully consider an applicant’s qualifications to perform the work, rather than his medical conditions.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

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