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Asking Specific Reason for Absence Risks ADA Violation by Scott J. Wenner
Schnader Harrison Segal & Lewis LLP - San Francisco Office
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April 4, 2012
Previously published on April 2012
The retailer Dillard's had an attendance policy with provisions commonly found in other attendance policies. Under the policy employees were allowed up to three unexcused absences. However, a fourth unexcused absence required the discharge of the offending employee. For an absence to be "excused" under the policy, the employee was required to submit a physician's note that provided "the nature of the absence (such as migraine, high blood pressure, etc.)." Several former employees of Dillard's brought this policy to the attention of the Equal Employment Opportunity Commission ("EEOC"), and claimed that they were fired under the policy for presenting doctors' notes that did not specify the medical condition that caused their absences. The EEOC filed suit in the Southern District of California claiming that the attendance policy violated the Americans With Disabilities Act's ("ADA") prohibitions, at §12112(d)(4)(A), against making disability-related inquiries to applicants and employees in most circumstances. Dillard's moved for summary judgment and the District Court denied that motion. EEOC v. Dillard's Inc. (S.D. Calif. 2012).
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