Lawyers expect an increase in EEOC lawsuits as employers call workers back to the office

But not everyone is going down (or going back) without a fight. 

Over 62,000 workforce discrimination charges were filed with the U.S. Equal Employment Opportunity Commission (EEOC) during the pandemic. About 66% of these were disability charges, with employees claiming that their company broke the Americans with Disabilities Act. 

While the number of charges filed with the EEOC has been lower than usual during the pandemic, experts are expecting an increase in lawsuits on the horizon. And companies that have been remote for the past two years might find themselves in trouble when defending the necessity of their new, in-person protocols.

When it comes to employees seeking to continue to work from home due to mental or physical health concerns, “it’s hard [for employers] to say that’s not a reasonable accommodation when you’ve been doing that for 18 months,” says Christian Antkowiak, co-chair of Buchanan’s Labor, Employment, Benefits and Immigration department.

“This is especially true when employees have been working from home with little to no issue in productivity or performance for over two years now,” says Phillip Harris, a labor and employment partner at Akerman.

Why are disability lawsuits most common?

The L.A. Times  recently reported an increase in workers suing their employers who failed to provide reimbursements for their work-from-home expenses. Despite the rise of these cases, these reimbursement lawsuits are a drop in the bucket compared to the peak in disability-related cases.

Lawsuits from employees seeking reimbursement for remote office expenses have been pretty rare due to the relatively minimal cost of office supplies compared to the cost of hiring a lawyer, says Laura Balson, managing partner at Constangy Brooks, Smith and Prophete. But “lawsuits alleging disability discrimination and failure to accommodate have been much more common,” Balson explains.

Avoiding a lawsuit might be not that challenging if companies make the effort to have accessible offices, which includes creating a workspace without unexpected objects on the ground, workstations that are the proper height for those in wheelchairs, and an accessible bathroom. It’s not hard to do, argues Josh Basile, disability rights advocate, trial attorney, community relations manager at accessiBe, and C4-5 Quadriplegic.

“Studies have found that the cost of adaptation to accommodate workers with disabilities was on average $500 or less,” he says. “This is a sound investment and usually benefits other coworkers both in the present and future.”

But while employers can retrofit workspaces to accommodate a wheelchair, they’re still likely to find workers who don’t want to return to the office, and many may be suffering from a less visible form of disability, like depression or anxiety.

“There is a large population of American workers who are attempting to leverage any underlying medical condition they may believe they have to try to secure a permanent work-from-home situation,” explains Harris.

Harris cautions that these accommodation requests, while legitimate, can be considered frivolous by employers. “Many times the request to work from home is perceived by the employer as manufactured and untrue. This can be dangerous if the employer does not take it seriously,” he adds.

Industries where staff has worked throughout the pandemic are seeing the most EEOC lawsuits. According to Antkowiak, he sees the most cases from health care workers, followed by people working retail and manufacturing jobs. As white-collar workers return to the office, more disability lawsuits might soon follow.

Mental health is finally entering the equation

As burnout becomes a hot-button topic, there has been a rise in disability lawsuits that involve employees’ mental health issues. Further, studies have shown the adverse effects of the pandemic on mental well-being, as research shows a 25% uptick in depression and anxiety in the U.S.

“Employers should expect to see issues related to employees’ mental health become a huge focus, whether due to the toll that the past two years have had on people everywhere or due to the difficulty in resetting expectations and the stress that inevitably comes during times of transition,” says Balson.

But these are not disabilities that are visible to the human eye, and companies could be well-served training their HR staff to learn how to accommodate and address the needs of these workers. “Human resources departments are quickly encountering increased instances of worker depression and incivility that may lead to absenteeism, diminished performance, workplace disputes, and litigation,” says Barnes & Thornburg attorney, Christina Janice.

This newest trend in disability lawsuits represents a potential challenge to employers, since around one-fifth of workers in the U.S. Report dealing with mental illness. Antkowiak points out that the question for these suits is not as much if someone has a disability (due to the more flexible interpretations of the ADA), but how an employer will accommodate their staff.

While many cases settle, Antkowiak makes it clear that mental illness cases are often the hardest disability suits to litigate.

What’s next for employers

As more employers require their workers to return to the office, we might see a slow uptick in the rise of EEOC lawsuits. It takes time to file a case, and the immense backlog of suits the EEOC delays things further. As a result, the full impact of return-to-office missives on disabled workers has yet to be fully realized.

And at the moment, some workers might be able to avoid filing suit at all, with a hot job market that’s providing more and more remote opportunities.

“It’s so easy to find a job somewhere else,” says Antkowiak. “The mobility right now is allowing people a shorter, quicker path to a better life. And they don’t need to necessarily litigate a return to the office because right now, the job market is fantastic.”