FedEx is quickly becoming the go-to company when a labor law complaint absolutely, positively has to be written about overnight. Great for those of us who have to write about it, not so good for FedEx.
This time, the Equal Employment Opportunity Commission is going after FedEx for "discriminating against a large class of deaf and hard-of-hearing package handlers and job applicants for years," according to an EEOC press release.
Alleged Failings All Around
According to the lawsuit, EEOC v. FedEx Ground Package System, Inc., EEOC received complaints from 16 deaf or hard-of-hearing people, all of whom were either package handlers or had applied to become package handlers.
FedEx has allegedly failed to provide such things as American Sign Language (ASL) interpreters during meetings and closed-captioned videos during new hire orientations. It also allegedly failed to provide accommodations to hearing-impaired employees, like scanners that vibrate instead of being equipped with beeping and flashing lights.
In various offices around the country, deaf FedEx employees were either told that FedEx had no duty to provide accommodations to them or that they had to first request accommodation (it wouldn't be automatically provided) -- an odd position to take against people who already have difficulty communicating in the first place.
The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to "perform the essential functions of the employment position." Employers also aren't allowed to discriminate on the basis of a disability even by "utilizing standards ... that have the effect of discrimination on the basis of disability."
One of the common complaints made to the EEOC was that FedEx rated employees partially by their package sorting ability; the deaf employees claimed that not having a vibrating scanner slowed them down, subjecting them to discipline.
FedEx is no stranger to employment litigation: It's currently involved in multistate litigation over misclassifying its truck drivers as contractors rather than employees, leading to rulings from the Ninth and Seventh Circuits that claiming a person is a contractor in a contract isn't enough to make it so.
What GCs Need to Know
Employers must provide accommodations unless they would be an "undue hardship" to the employer. A hardship is undue when it's difficult or expensive in light of factors like the company's financial resources, the size of the business, and the company's workforce structure.
The Sixth Circuit just granted rehearing en banc to a case involving irritable bowel syndrome, where there were factual questions about whether the defendant's business structure required the plaintiff to be physically present at work to do her job. If a hardship is going to be undue, it's going to be really undue.