Schorr & Associates’ Employment Case of The Week ending August 18, 2017

EEOC v. Macy’s, Dkt. 17-cv-5959, filed August 16, 2017, Northern District of Illinois.

This week, the EEOC had a flurry of activity including a $10.25 million settlement of a harassment suit against Ford and several lawsuits alleging various race, national origin and disability claims. The lawsuit that captured my attention was EEOC v. Macy’s. In this case, the EEOC is alleging that Macy’s violated the Americans with Disabilities Act for firing an employee because she missed one day because of her asthma.

According to information contained in the Complaint and the EEOC’s press release, Letishia Moore was a long-term employee at the State Street Macy’s in Chicago. Moore suffered from asthma and complications in her leg which became exacerbated by the asthma. On June 7, 2015, it is alleged that Moore had a medical emergency related to her asthma which required treatment in a hospital emergency room and prevented her from working her shift that day.

Moore provided documentation to Macy’s and asked for her absence to be excused, but Macy’s nevertheless decided to terminate Moore for missing the day. The EEOC alleges that Ms. Moore’s asthma was a disability and also that Macy’s was required to provide Moore with the reasonable accommodation of the one day off due to her disability. The regional attorney for the EEOC stated in her press release:

“Employers have a legal duty to provide reasonable accommodations to people with disabilities that enable them to perform the essential functions of their job. Reasonable accommodations can include time off. Here, Macy’s acted unreasonably – and unlawfully – when it denied Ms. Moore a single day’s absence to address her disability-related health complications. Macy’s refusal to allow Moore’s absence prevented her from continuing to do the job she had done well for many years.”

This case is significant for several reasons. First, there has been a real split in decisions regarding whether asthma is a disability. We had an asthma case in 2014 wherein the defendants argued that the Plaintiff’s asthma was not a disability. They cited numerous Courts from throughout the country that ruled that asthma is not a disability. The New Jersey District Court noted that there are no New Jersey cases on point but predicted that New Jersey State Courts would find asthma to be protected by the New Jersey Law Against Discrimination. See Apatoff v. Munich Re Am. Servs..

Secondly, the length of the absence (one day) is very significant. Under FMLA, an employee must be out for at least three days to qualify as a “serious health condition”. Even for purposes of intermittent leave for a chronic condition, the employee still has to provide certifications and be pre-approved. Here, there is no such requirement. An employer who has an employee who misses a day due to a chronic condition (i.e. arthritis, back pain, IBS, depression, etc.) is arguably now required not to count that day as an absence in accordance with the employer’s policies.

Finally, this recent run of cases and settlements by the EEOC may allay some fears that the new appointee, Jenny R. Yang, would be following the lead of Sessions’ Department of Justice, which is attacking employees’ civil rights, especially those of the LGBT community. Although Ms. Yang seems to be off to a good start, we’ll see whether the EEOC continues to bring actions and support recent cases holding that Title VII protects against discrimination due to sexual orientation. The front page of the EEOC website expressly states that it is the EEOC’s responsibility to enforce laws that make it illegal to discriminate against employees on the basis of sexual orientation. At some point the EEOC may have to take on the Justice Department, which holds the opposite view.

Nevertheless, this case is a positive sign. Perhaps we will get a good court decision which will strengthen the protection of employees who are forced to missed work due to a flare up of a chronic condition.