Is the EEOC vs. The Picture People Ruling Part of Something Bigger?

I’m getting interesting feedback from attorneys close to the recently-decided EEOC vs. The Picture People case, suggesting the 10th Circuit Court of Appeals’ decision in favor of the national retail portrait studio chain marks a new wind blowing in from the federal courts — one that is increasingly critical of the U.S. Equal Employment Opportunity Commission.

The ruling, issued July 10, denies the EEOC’s appeal of a 2011 ruling by the U.S. District Court for the District of Colorado. That ruling granted summary judgment for Picture People on the grounds that its requirement that studio “performers” be strong in verbal-communication skills did not discriminate against a deaf worker.

In a nutshell, Picture People hired Jessica Chrysler in 2007 to work as a photographer in one of the company’s Littleton, Colo., studios, knowing she was deaf. Although she performed a number of her duties, she was later moved into the lab because of the difficulties she had communicating with customers by writing notes. (Though the company initially tried her out this way, it found the note writing was cumbersome and awkward given the 20-minute duration of each portrait sitting.) Picture People eventually cut her hours and she eventually left her job.

The EEOC sued, claiming the company did not do enough to accommodate her and the District Court sided with the company, holding that oral communication was an essential function of the performer job. The appeals court upheld that. For a whole lot more on this case than I could possibly blog about, here is a piece written for HREOnline by Merrily S. Archer of EEO Solutions in Denver, the attorney representing Picture People, and here is a summary of the District Court decision  as well as a summary of this latest Appeals Court ruling from a blog by Seyfarth Shaw partner Gerald L. Maatman Jr.

Although the EEOC press release announcing its lawsuit in October, 2009, was recently taken down from the agency’s website, my printed copy offers a much different account, saying “managers picked on Chrysler, forced her to work in the back of the store away from the public, and ultimately, eliminated her work hours entirely.” It also claims she was retaliated against for complaining. “Employers all too frequently underestimate the ability of deaf employees to serve in a customer-service capacity,” EEOC Phoenix Regional Attorney Mary Jo O’Neill says in that release.

On the contrary, Archer says, “this case is huge, because it demonstrates just how far the EEOC will go to substitute its judgment for our employers’ regarding what constitutes minimally effective job performance. As I laid out in my response brief,” she says, “Congress was very clear when it passed the Americans with Disabilities Act that an employer would never be required to fundamentally alter the essential functions of a job to accommodate a disabled employee.

“When Bush (41) signed the ADA into law on July 26, 1990, he talked about the careful balances that Congress struck between the disabled and employer communities,” says Archer. “This decision helps restore that balance from the weight of the EEOC’s aggressive ADA interpretations and enforcement.”

What’s even more interesting, says Maatman, chair of his firm’s class-action defense group, is that this decision is actually “one in a series of cases in which federal judges have, in essence, rejected the EEOC lawsuits for having [little to no] evidence to back them up.” He lists these other recent decisions against the EEOC on his blog as illustration:

* EEOC vs. Cintas Corp., 2011 U.S. Dist. LEXIS 86228 (E.D. Mich. Aug. 4, 2011) (ordering the EEOC to pay defendant $2,638,443.93 in attorneys’ fees and costs),
* EEOC vs. Tricore Ref. Labs., 2011 U.S. Dist. LEXIS 151417 (D. N.M. Oct. 26, 2011) (ordering the EEOC to pay defendant $140,571.62 in attorneys’’ fees),
EEOC vs. CRST Van Expedited Inc., 2010 U.S. Dist. LEXIS 11125 (N.D. Iowa Feb. 9, 2010) (ordering the EEOC to pay defendant $4,467,442.90 in attorneys’ fees),
EEOC vs. CRST Van Expedited Inc., 679 F.3d 657, 698 (8th Cir. Iowa 2012) (reversing and remanding the district court’s award of $4,467,442.90 in attorneys’ fees).

He’s telling his CHRO clients to make sure they discuss this new atmosphere in the judiciary with their legal counsel. “Knowing the EEOC has been sanctioned around the nation is one of a number of factors upon which you should [plot your defense, should you be the subject of an EEOC lawsuit].”

For the record, P. David Lopez, general counsel for the EEOC, says his agency “does not file unsubstantiated claims [and] we do not think there is a new trend in the federal judicial system finding against the EEOC due to lack of evidence.”

Like I said back at the top of this monolithic blog post, interesting feedback.

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