Thursday, December 29, 2011

Going on offense--responding to a potential ADA suit

Great Expressions Dental Center is headquartered in Michigan and operates 150 dental centers in seven states.  James White was employed at one of the centers and was terminated by the company.  White has HIV and claims he was terminated because of his condition; the company states that it was performance related.

White filed a charge with the EEOC and alleged that employees were instructed to sanitize things he had touched and that he was subjected to unexpected changes in scheduling.  The company's reply is that his termination was the result of a failure to address excessive absences and tardiness.  The EEOC conducted a three year investigation ; proposed a $185,000 settlement; and issued a right to sue letter.  White has an attorney but has not yet filed suit.  The EEOC has not filed suit.

So far the story is familiar to employers who have faced an EEOC investigation.  Enter the impact of the internet.  White's story was picked up and, excuse the cliche, has gone viral.  A student started a petition and over 35,000 people signed it; the petition called for the resignation of the company's regional director.  The criticism of the company has been intense in on line coverage by groups involved with HIV issues.  The petition was removed after the company threatened to file suit.

In response to the reaction created by the petition and the coverage of the story, the company issued a press release denying the allegations and announcing that in response to the public and false allegations which had been made in the online campaign, it was filing a lawsuit  to vindicate its position.

While the strategy is not common, it is not unprecedented.  An excellent overview of the legal issues is found in an article in the New York Law Journal by Ronald Green.  Given the statutory scheme of the ADA and the specific means to enforce the Act, it is hard to imagine that the district courts are going to be overly receptive to what amounts to a preemptive strike under the Declaratory Judgment Act to allow employers to be the first to the court house.  The legal significance of a determination of probable cause by the EEOC is not the same as the finding of a violation after  litigation in federal court. The impact of an EEOC determination letter is often challenged in subsequent litigation and is not binding on a jury or a judge.  A party which receives a right to sue letter may, for whatever reason, choose not to sue.

Is this case the beginning of a trend for employers or a response limited to a case where the employer has been the subject of an internet campaign based on one side of the story?  Assuming the federal courts are receptive, such a tactic is likely the exception rather than the rule.


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