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<!–:en–>DILLARD’S DEPARTMENT STORE & CASE INVOLVING SEEKING MEDICAL CONDITIONS FOR ABSENCE<!–:–>

February 22, 2012

On February 9, 2012, a federal district court in California ruled that the Equal Employment Opportunity Commission can proceed to trial with claims that a former attendance policy at a Dillard’s Inc. store in El Centro, CA. violated the Americans with Disabilities Act because it required employees to disclose the nature of their medical conditions in order for health-related absences to be excused. (EEOC v. Dillard’s Inc., S.D. Cal., No. 08-01780, 2/9/12).

Denying Dillard’s motion for summary judgment, the U.S. District Court for the Southern District of California said a reasonable jury could find that the attendance policy, which the company rescinded in July 2007, contained a disability-related inquiry prohibited by the ADA.

By asking employees to disclose the nature of their absences and the conditions for which they sought treatment, the company’s inquiry “may tend to reveal a disability,” the court said. Furthermore, Dillard’s failed to present evidence that the question is job-related and consistent with business necessity, it added.

According to the court, Dillard’s opened the El Centro store in March 2005. Its attendance policy at that time provided that employees would not have their health-related absences excused unless they submitted doctor’s notes stating “the nature of the absence (such as migraine, high blood pressure, etc. … .).”

Three employees—Corina Scott, Irma Moreno, and Allyson Mazon—each claimed that Dillard’s management would refuse
to accept doctor’s notes that did not state their medical conditions and would require more specific notes to verify that they had legitimate medical reasons for absences.

After Scott voiced her belief that she did not need to disclose her medical condition, Dillard’s fired her in June 2006 for accumulating too many unexcused absences. Meanwhile, Moreno was discharged in May 2007 because she did not return from leave, while Mazon voluntarily resigned in February 2006.

Dillard’s rescinded its attendance policy in July 2007 and replaced it with one that no longer required a doctor’s note stating an employee’s medical condition.

Scott filed a bias charge with EEOC in June 2006, and the commission subsequently brought suit against Dillard’s in September 2008 on behalf of Scott and “others similarly situated.” EEOC sought compensatory and punitive damages and injunctive relief.

The court noted that Dillard’s may avoid liability under the ADA if it demonstrates that its absence policy was job-related and consistent with business necessity.

However, this burden is “quite high,” the court said, and Dillard’s failed to present evidence that it “needed to know the nature of the employee’s medical condition because of excessive absences or in order to protect the health and safety of its other employees.”

Additionally, the company “makes no attempt to explain why it is necessary for the doctor’s note to state the medical condition for which an employee is being treated,” it said.

The court also pointed out that Dillard’s rescinded in 2007 the policy at issue. “If the Policy was indeed job-related and a matter of business necessity, Dillard’s has failed to explain how it is now able to operate as a business without such policies,” the court
said. 02.21.2012.