The Americans With Disabilities Act can apply even when what may appear on its face to be a neutral, non-discriminatory practice is instituted on behalf of an employer. Recall a case where Verizon Wireless had instituted a “no-fault” attendance plan, without exception for those employees with disabilities. Under the plan, if an employee accumulated in excess of the designated number of unexcused absences, the company would place the employee through a series of progressive disciplinary actions. The EEOC charged that Verizon, by refusing to include exceptions to the “no-fault” application of its attendance plan, failed to provide reasonable accommodations to disabled employees, where those “chargeable absences” were caused by the employee’s disability. EEOC found that Verizon disciplined or terminated such employees, notwithstanding the need for, and the right to, accommodations under the ADA.
Even though your company or employer may not be as large as Verizon, the take away remains the same: a company must carefully structure policies which, while on their face are perhaps neutral and fair, nonetheless may discriminate against employees in a protected class.