March 28, 2023

Volume XIII, Number 87


March 27, 2023

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Sharing an Employee’s EEOC Charge With Other Employees May Violate the ADA

The right to communicate with the Equal Employment Opportunity Commission (EEOC) is protected by federal law. In fact, the EEOC’s Strategic Enforcement Plan identifies “preserving access to the legal system” as one of its six enforcement priorities. Recently, one employer learned that a letter from its in-house attorney to its workforce may be viewed as violating federal law by chilling employees’ willingness to file discrimination claims.

In September of 2015, the EEOC filed a lawsuit in federal court in Connecticut against Day & Zimmermann NPS, Inc. (DZNPS), a provider of staffing services to the power industry. The suit alleged that DZNPS violated the Americans with Disabilities Act (ADA) when it sent a letter from its in-house counsel to nearly 150 employees, informing them that one of their former coworkers had filed a disability discrimination charge with the EEOC. The letter divulged the name of the employee, the specific allegations in the charge (including the nature of the disability alleged), and the actual accommodations sought by the individual.

The EEOC’s lawsuit invoked the ADA’s “interference provision,” alleging that the sharing of details related to the employee’s charge not only amounted to retaliation against that employee but also created a potential chilling effect by intimidating other employees from filing charges in the future. The company responded by stating that the letter was provided to other employees as a “courtesy” simply to alert them that they may be contacted by the EEOC with respect to the original charge.

Cross-motions for summary judgment by both parties were denied by the court. Instead, the court found, in late August of 2017, that both the ADA retaliation claim and the interference claim should be determined at trial by a jury.

A settlement was reached in November of 2017. In that settlement, the company agreed to provide “extensive injunctive relief” and $45,000 in compensatory damages to the filer of the original EEOC charge.

Employers and, more specifically, in-house counsel may want to keep in mind this decision involving the EEOC’s New York District Office, which oversees New York, northern New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire, and Maine. The ADA’s interference provision was interpreted in this case as protecting an individual charge filer from retaliation, as well as protecting workers who hadn’t yet engaged in any specific EEOC-related activity.

All that is required to establish an ADA interference claim is to point to evidence of an employer action that could be interpreted as coercing or intimidating an employee into not exercising his or her rights under the ADA. In this case, the letter, which included specifics about the employee’s disability discrimination charge, was sufficient to get the lawsuit in front of a jury. In-house counsel therefore may want to take caution to ensure that if a letter to other employees is necessary, it is limited in scope. Such careful action can help employers avoid unintended liability under the ADA’s interference provision.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VIII, Number 31

About this Author

Maria Greco Danaher, Pittsburgh, PA Ogletree Deakins law firm, labor relations attorney

Maria Greco Danaher regularly represents and counsels companies and healthcare entities in employment-related matters.  Her area of emphasis is employment litigation, including both administrative claims and matters in federal and state courts. She also specializes in training, counseling, and advising human resource departments and management on employment-related topics, and regularly counsels clients on, and assists in developing, written policies and procedures related to employment issues.

In addition to her litigation...