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EEOC To Need Outplacement In 2012?

Equal Employment Opportunity Commission employees could be facing furloughs thanks to proposed cuts in the agency’s fiscal 2012 budget.

In an email to staff late last month, EEOC Chairwoman Jacqueline Berrien wrote that a drop in funding could force the agency to consider furloughs for its nearly 1,800 workers. The current continuing resolution cuts EEOC’s budget by $5.5 million. In fiscal 2012 spending bills passed earlier this year, House lawmakers kept the agency’s budget frozen at $367 million for fiscal 2012, but Senate appropriators recommended a $7 million drop in funding for EEOC salaries and expenses.

“I understand the serious consequences of these decisions,” Berrien wrote to employees. “I will do everything I can to avoid furloughs, and, if they are necessary, lessen the impact on our staff and the mission of the agency.”

According to Gabrielle Martin, president of the National Council of EEOC Locals No. 216, EEOC has yet to determine who will be affected or how long furloughs will last. But the move likely would affect everyone unless the agency forms a skeleton staff to ensure the public still has access to its services, she said.

EEOC needs to change inefficient processes to save money before considering furloughs for employees, Martin added. For example, the agency already faces a backlog of discrimination cases but has not streamlined its intake procedures, she said.

In its budget report, the Senate Appropriations Committee wrote that the proposed cuts would “regrettably reverse” EEOC’s progress in reducing the backlog. The agency is expecting 108,000 discrimination charges to be filed by the end of fiscal 2012, with the goal of having 93,000 end-of-year pending cases.

“Budget cuts and expanding enforcement responsibilities will make EEOC hard-pressed to meet this goal, leaving the commission with an erosion of mission-critical staff, increased discrimination charge inventory, limits on its litigation docket, diminished employment sector enforcement efforts and delayed customer service,” the report stated.  Source:  Government Executive.

EEOC Backs Alcoholic Truck Drivers.

The federal government has sued a major trucking company for its firing of driver with an admitted alcohol abuse problem.

Alcoholism is classified as a disability under the Americans with Disabilities Act, the suit maintains, and therefore employees cannot be prohibited even from driving 18 wheelers due to their histories of abuse.

The Equal Employment Opportunity Commission, which filed the suit against the Old Dominion Freight Line trucking company on August 16, noted that while “an employer’s concern regarding safety on our highways is a legitimate issue, an employer can both ensure safety and comply with the ADA.”

The EEOC detailed the case on its website:

Old Dominion Freight Line, Inc., a trucking company with a service center in Fort Smith, Ark., violated federal law by discriminating against at least one truck driver because of self-reported alcohol abuse, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. The company should have met its legal obligation to comply with the Americans with Disabilities Act while assuring safety, rather than permanently sidelining self-reporting drivers, the EEOC contended.

According to the EEOC’s suit (Civil Action No. 2:11-CV-02153-PKH in U.S. District Court for the Western District of Arkansas), the driver at the Fort Smith location had worked for the company for five years without incident. In late June 2009, the employee reported to the company that he believed he had an alcohol problem. Under U.S. Department of Transportation regulations, the employer suspended the employee from his driving position and referred him for substance abuse counseling.  However, the employer also informed the driver that the employer would never return him to a driving position, even upon the successful completion of a counseling program. During the investigation, the EEOC discovered drivers at other service centers whom the employer had allegedly subjected to similar treatment…

“The ADA mandates that persons with disabilities have an equal opportunity to achieve in the workplace.  Old Dominion’s policy and practice of never returning an employee who self-reports an alcohol problem to a driving position violates that law,” said Katharine Kores, director of the EEOC’s Memphis District Office, whose jurisdiction includes Arkansas. “While the EEOC agrees that an employer’s concern regarding safety on our highways is a legitimate issue, an employer can both ensure safety and comply with the ADA.”

If the EEOC prevails, of course, it will mean that Old Dominion will still be liable both for any damage to life or property that results from a potential relapse by one of its recovering drivers – which in turn increases the risks involved in investment in the company – and for the cost of trying to ensure that such damage never occurs. All of these new burdens will raise Old Dominion’s cost of doing business, and hence the cost of everything they transport. And all of this can’t possibly ensure that a recovering driver does not relapse without the company’s knowledge.

The Cato Institute’s Walter Olsen notes that the EEOC has made a number of similar decisions:

For years the ADA has provided legal muscle to employees terminated for alcohol problems — just the other day, for example, a Florida State University administrator dismissed after frictions with staff sued the university for not accommodating his alcohol abuse. But that’s just the academic setting, where many administrators can glide by in a bit of a haze for years without causing real problems. (UCLA’s Steve Bainbridge quips that the college official’s description of drinking as a “handicap” is off base: “it’s always come in handy for me.”) Are we really required to take chances with 18-wheelers on the highway?

Despite the apparent precedent for alcoholism-related lawsuits, EEOC’s case might not be a slam dunk. As the Competitive Enterprise Institute’s Hans Bader notes, a federal appellate court ruled in 1995 that employers can fire someone for problems caused by an ADA-qualified disability if that disability “poses a significant risk [to others] that cannot be eliminated by reasonable accommodation.”

The U.S. Fourth Circuit Court of Appeals established that standard when it ruled against an HIV-positive individual who sued the University of Maryland Medical System Corporation for firing him from its residency program for fear that he might inadvertently infect hospital patients with the virus.  Source:  Lachlan Markay, The Foundry.

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