Petitioner Hosanna-Tabor Evangelical Lutheran Church and School is a member congregation of the Lutheran Church–Missouri Synod. The Synod classifies its school teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God. To be eligible to be considered “called,” a teacher must complete certain academic requirements, including a course of theological study. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.” “Lay” teachers, by contrast, are not required to be trained by the Synod or even to be Lutheran. Although lay and called teachers at Hosanna-Tabor generally performed the same duties, lay teachers were hired only when called teachers were unavailable.
After respondent Cheryl Perich completed the required training, Hosanna-Tabor asked her to become a called teacher. Perich accepted the call and was designated a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her students to a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.
Perich developed narcolepsy and began the 2004–2005 school year on disability leave. In January 2005, she notified the school principal that she would be able to report to work in February. The principal responded that the school had already contracted with a lay teacher to fill Perich’s position for the remainder of the school year. The principal also expressed concern that Perich was not yet ready to return to the classroom. The congregation subsequently offered to pay a portion of Perich’s health insurance premiums in exchange for her resignation as a called teacher. Perich refused to resign. In February, Perich presented herself at the school and refused to leave until she received written documentation that she had reported to work.
The principal later called Perich and told her that she would likely be fired. Perich responded that she had spoken with an attorney and intended to assert her legal rights. In a subsequent letter, the chairman of the school board advised Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for termination, the letter cited Perich’s “insubordination and disruptive behavior,” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.”
The congregation voted to rescind Perich’s call, and Hosanna-Tabor sent her a letter of termination. Perich filed a charge with the Equal Employment Opportunity Commission, claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the litigation. Invoking what is known as the “ministerial exception,” Hosanna-Tabor argued that the suit was barred by the First Amendment because the claims concerned the employment relationship between a religious institution and one of its ministers. The District Court agreed and granted summary judgment in HosannaTabor’s favor. The Sixth Circuit vacated and remanded. It recognized the existence of a ministerial exception rooted in the First Amendment, but concluded that Perich did not qualify as a “minister” under the exception.
Held:
1. The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. Pp. 6–15.
(a) The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. Pp. 6–10.
(b) This Court first considered the issue of government interference with a church’s ability to select its own ministers in the context of disputes over church property. This Court’s decisions in that area confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers. See Watson v. Jones, 13 Wall. 679; Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94; Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U. S. 696. Pp. 10–12.
(c) Since the passage of Title VII of the Civil Rights Act of 1964 and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers. The Court agrees that there is such a ministerial exception. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
The EEOC and Perich contend that religious organizations can defend against employment discrimination claims by invoking their First Amendment right to freedom of association. They thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves. Their position, however, is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. The Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.
The EEOC and Perich also contend that Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, precludes recognition of a ministerial exception. But Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. Pp. 13–15.
2. Because Perich was a minister within the meaning of the ministerial exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer. Pp. 15–21.
(a) The ministerial exception is not limited to the head of a religious congregation. The Court, however, does not adopt a rigid formula for deciding when an employee qualifies as a minister. Here, it is enough to conclude that the exception covers Perich, given all the circumstances of her employment. Hosanna-Tabor held her out as a minister, with a role distinct from that of most of its members. That title represented a significant degree of religious training followed by a formal process of commissioning. Perich also held herself out as a minister by, for example, accepting the formal call to religious service. And her job duties reflected a role in conveying the Church’s message and carrying out its mission: As a source of religious instruction, Perich played an important part in transmitting the Lutheran faith.
In concluding that Perich was not a minister under the exception, the Sixth Circuit committed three errors. First, it failed to see any relevance in the fact that Perich was a commissioned minister. Although such a title, by itself, does not automatically ensure coverage, the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position. Second, the Sixth Circuit gave too much weight to the fact that lay teachers at the school performed the same religious duties as Perich. Though relevant, it cannot be dispositive that others not formally recognized as ministers by the church perform the same functions—particularly when, as here, they did so only because commissioned ministers were unavailable. Third, the Sixth Circuit placed too much emphasis on Perich’s performance of secular duties. Although the amount of time an employee spends on particular activities is relevant in assessing that employee’s status, that factor cannot be considered in isolation, without regard to the other considerations discussed above. Pp. 15–19.
(b) Because Perich was a minister for purposes of the exception, this suit must be dismissed. An order reinstating Perich as a called teacher would have plainly violated the Church’s freedom under the Religion Clauses to select its own ministers. Though Perich no longer seeks reinstatement, she continues to seek frontpay, backpay, compensatory and punitive damages, and attorney’s fees. An award of such relief would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination. Such relief would depend on a determination that Hosanna-Tabor was wrong to have relieved Perich of her position, and it is precisely such a ruling that is barred by the ministerial exception.
Any suggestion that Hosanna-Tabor’s asserted religious reason for firing Perich was pretextual misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful is the church’s alone. Pp. 19–20.
(c) Today the Court holds only that the ministerial exception bars an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. The Court expresses no view on whether the exception bars other types of suits. Pp. 20–21.
597 F. 3d 769, reversed.

The FLSA mandates that employers pay overtime compensation for nonexempt employees.FN7 Rainey v. McWane, Inc., 314 Fed. Appx. 693, 694 (5th Cir. Mar.12, 2009), citing 29 U.S.C. § 207(a). The FLSA, 29 U.S.C. § 207(a)(1), generally requires an employer to pay employees who work more than forty hours per seven-day work week at a rate not less than one and one-half times the employee’s regular rate. Allen v. Coil Tubing Servs., LLC, Civ. A. No. H–08–3370, 2011 WL 4916003, *5 (S.D.Tex. Oct.17, 2011); Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir.2001); Thibodeaux v. Executive Jet Intern., Inc., 328 F.3d 742, 749 (5th Cir.2003). Under 29 U.S.C. § 216(b), an employer who violates the FLSA shall be liable for “unpaid overtime compensation … and in an additional equal amount as liquidated damages.” Moreover any person who repeatedly or willfully violatesSection 206 or 207, relating to wages, shall be subject to a civil penalty not to exceed $1,100 for each such violation.” 29 U.S.C. § 216(e)(2).FN8

FN7. Section 207(a) does not apply to those “employed in bona fide executive, administrative, or professional capacity.” Rainey, 314 Fed. Appx. at 694–5, citing 29 U.S.C. § 213(a)(1). Exemption is narrowly construed against the employer, and the employer bears the burden of demonstrating that an employee is exempt. Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 402 (5th Cir.2002), citing Dalheim v. KDFW–TV, 918 F.2d 1220, 1224 (5th Cir.1990). Whether an employee is exempt or not exempt under FLSA is mainly a fact issue determined by his salary and duties and applications of the factors in 29 C.F.R. § 541.200(a), but the ultimate decision is a question of law. Lott v. Howard Wilson Chrysler–Plymouth, Inc., 203 F.3d 326, 330–31 (5th Cir.2000); McKee v. CBF Corp., 299 Fed. Appx. 426, 429 (5th Cir. Nov.17, 2008). For discussion of exemptions see, e.g., Thibodeaux, 328 F.3d 742; Vela, 276 F.3d 659. There is no dispute in the instant case that Garner was a nonexempt employee.

FN8. Under FLSA, a violation is “willful” if the employer “ ‘either knew or showed reckless disregard for … whether its conduct was prohibited by the statute.’ ” Singer v. City of Waco, Tex., 324 F.3d 813, 821 (5th Cir.2002), quoting Reich v. Bay, Inc., 23 F.3d 110, 117 (5th Cir.1994),quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). The plaintiff bears the burden of demonstrating that the FLSA violation was willful. Id.
Under 29 U.S.C. § 255(a), a cause of action for unpaid overtime under the statute “shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.”
Thus an employer who violates the FLSA is liable for liquidated damages equal to the unpaid overtime unless the court finds that the employer acted in good faith and had reasonable grounds to believe that his actions complied with the statute and therefore declines to award or reduces the amount of the liquidated damages.Stokes v. BWXT Pantex, LLC, 424 Fed. Appx. 324, 326 (5th Cir. May 4, 2011), citing29 U.S.C. § 260. The employer bears the burden of demonstrating that it acted in good faith to escape mandatory liquidated damages under the statute. Perez, 2011 WL 2672431, at *9, citing Singer v. City of Waco, Tex., 324 F.3d 813, 821 (5th Cir.2003), and Stokes v. BWXT Pantex, LLC, 424 Fed. Appx. at 326.

Plaintiffs are only entitled to overtime compensation for tasks of which the employer had actual or constructive knowledge that the employee was working.Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir.1995), citing Davis v. Good Lion, 792 F.2d 1274, 1276 (4th Cir.1986); Perez v. Guardian Equity management, LLC, 2011 WL 2672431, *9 (S.D.Tex. July 7, 2011). Constructive knowledge exists if an employer “exercising reasonable diligence” would become aware that an employee is working overtime. Von Friewalde v. Boeing Aerospace Operations, Inc., 339 Fed. Appx. 448, 455 (5th Cir.2009), citing Brennan v. Gen. Motors Acceptance Corp., 482 F.2d 825, 827 (5th Cir.1973). “ ‘An employer who is armed with [knowledge that an employee is working overtime] cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for overtime compensation.’ ” Newton, 47 F.3d at 748 (If an employer knows its employee worked overtime, it must pay overtime wages “even if the employee does not make a claim for overtime compensation.”), quoting Forrester v. Roth’s I.G.A. Foodliner, Inc., 6346 F.2d 413, 414 (9th Cir.1981), and 29 C.F.R. § 785.15 (“Work not requested but suffered or permitted is work time.” FN9). Under 29 C.F.R. § 785.13, “[i]n all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept benefits without compensating for them.” See also Prince v. MND Hospitality, Inc.,Civ. A. No. H–08–2617, 2009 WL 2170042, *7 (S.D.Tex. July 20, 2009); in accord,Reich v. Dept. of Conservation and Natural Res., State of Ala., 28 F.3d 1076 (11th Cir.1994).

FN9. Title 29 U.S.C. § 203 defines “employ” as including “to suffer or permit to work.”

*9 The employer bears the burden of exercising its control to ensure that overtime work is not performed if it is prohibited by the employer. 29 C.F.R. § 785.13. Reich v. Steward, 121 F.3d 400, 407 (8th Cir.1997) (“The employer who wishes no such work to be done has a duty to see it is not performed…. If the employer has the power and desire to prevent such work, he [or she] must make every effort to do so.”). Furthermore “[ a] n announcement by an employer that no overtime work will be permitted, or that overtime work will not be compensated unless authorized in advance, will not impair the employee’s right to compensation for work he is actually suffered or permitted to perform.” 29 C.F.R. § 778.316. “In all such cases it is the duty of management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.” 29 C.F.R. § 785.13.

Nevertheless, the plaintiff must show that the employer had actual or constructive knowledge that he was working overtime. If an employee fails to notify the employer or deliberately prevents the employer from gaining knowledge of his overtime work, the employer’s failure to pay overtime does not violate § 207. Von Friewalde, 339 Fed. Appx. at 455, citing Forrester, in which the appellate court affirmed the district court’s grant of summary judgment for the employer because the employee turned in time sheets that did not include the overtime hours and the employee did not demonstrate that the employer should have known about the overtime hours. In Newton, the court found that the employer could not have constructive knowledge of overtime when the employee never complained about or reported working overtime hours. Id., citing Newton, 47 F.3d at 748. InNewton the City required employees to have overtime hours approved before the work, but the plaintiff never asked for pre-approval nor recorded overtime hours on his time sheet, and there was no evidence that showed that the employer knew or should have known it was violating the FLSA. Id. See also discussion in Prince,2009 WL 2170042, *9.

Title 29 U.S.C. § 211(c) requires that the employer “make, keep and preserve such records of the persons employed by him and of the wages, hours, and other conditions of employment maintained by him.” As summarized in Lynch v. Jet Center of Dallas, LLC, Civ. A. No. 3:05–CV–2229–L, 2007 WL 211101, *5 (N.D.Tex. Jan.26, 2007),

Under the FLSA, “an employee who brings suit for unpaid overtime compensation bears the burden of proving, with definite and certain evidence, that he performed work for which he was not properly compensated.” Reeves v. International Telephone & Telegraph Co., 616 F.2d 1342, 1351 (5th Cir.1980),cert. denied, 449 U.S. 1077, 101 S.Ct. 857, 66 L.Ed.2d 800 … (1981), implicit overruling on other grounds recognized in Heidtman v. County of El Paso, 171 F.3d 1038, 1042 n. 4 (5th Cir.1999). Where an employer keeps incomplete or [in]accurate records, however, “an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” In re Williams,298 F.3d 458, 465 (5th Cir.2002) ( citing Anderson v. Mt. Clemens Pottery Co.,328 U.S. 680, 687–88, 66 S.Ct. 1187, 90 L.Ed. 1515 … (1946) [superseded in part by statute on other grounds by The Portal–to–Portal Act, amending FLSA in 1947,29 U.S.C. § 251, et seq.]. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence. Anderson, 328 U.S. at 687–88. “If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” Id. at 688.

*10 As stated by the Supreme Court, “The remedial nature of this statute and the great public policy which it embodies. militate against making [the plaintiff's burden] an impossible hurdle for the employee.” Anderson, 328 U.S. at 687. It is the employer’s duty to keep records of the employee’s wages, hours, and other conditions and practices of employment; the employer is in a superior position to know and produce most probative facts concerning the nature and amount of work performed and “[ e] mployees seldom keep such records themselves.” Id.Therefore if the employer fails to keep proper and accurate records and “the employee cannot offer convincing substitutes,”

[t]he solution is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

Id. at 687–88.

“ ‘It is … a fundamental precept of the FLSA that an employee should not be denied [recovery] because proof of the number of hours worked is inexact or not perfectly accurate.’ ”). Perez, 2011 WL 2672431, *9, quoting Monroe v. FTS USA, LLC, 763 F.Supp.2d 979, 989 (W.D.Tenn.2011). “A plaintiff need not ‘prove each hour of overtime with unerring accuracy or certainty.’ ” Prince, 2009 WL 2170042, *6. “In the absence of rebuttal by defendants, plaintiffs’ recollection and estimates of hours worked are presumed to be correct.” Id., quoting Ting Yao Lin v. Hayashi Ya II, Inc., No. 08–CV–6071, 2009 WL 289653, *3 (S.D.N.Y. Jan.30, 2009) (finding plaintiffs’ initial burden was satisfied by affidavits based on the plaintiffs’ recollection describing the time spent performing various tasks for which they did not receive overtime compensation). Evidence can include plaintiff’s testimony as to when and how many overtime hours he worked, plaintiff’s affidavit to such, etc. Prince, 2009 WL 2170042, at *6.

The McDonnell Douglas evidentiary framework also applies to a claim of retaliation under the FLSA. Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir.2008). The plaintiff must establish a prima facie case by demonstrating that he participated in a protected activity under the statute; (2) he suffered an adverse employment action; and (3) a causal link existed between the activity and the adverse action. Id. If he succeeds, the employer must articulate a legitimate, nondiscriminatory reason for its decision. The burden then shifts to the plaintiff to show that the proffered reason is a pretext for discrimination. Id. The ultimate question is whether the employer took the adverse action against the plaintiff because of his protected status. Id.

*11 Regarding an employee’s protected status, which is based on engaging in a protected activity as defined by 29 U.S.C. § 215(a) (3), it is unlawful for the employer “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” The Fifth Circuit recognized that an informal internal complaint can be a protected activity but it must be about a violation of the law; “not all abstract grumblings or vague expressions of discontent are actionable complaints.” Hagan, 529 F.3d at 626. The Supreme Court, in considering its language “filed any complaint” as well as the purpose and context of the statute, recently held that the anti-retaliation provision protects both oral and written complaints of a violation of the FLSA. Kasten v. Saint–Gobain Performance Plastics Corp., ––– U.S. ––––, 131 S.Ct. 1325, 179 L.Ed.2d 379 (2011). The complaint must also give fair notice to the employer: “To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” Id. at 1335.

ADA: Qualification Standards; Disparate Impact

November 17, 2011

[ADDRESS]

Dear ____:

This is in response to your letter, dated October 9, 2009, and postmarked October 12, 2011, asking whether the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), prohibits the State of Tennessee from requiring students with learning disabilities to take “Gateway tests” or “end-of-course assessments” in order to receive their full high school diplomas. We responded to the same inquiry when we received it in December of 2010, by referring you to the Department of Education. Please find the earlier response attached.

In the event that you found our earlier response incomplete or were seeking additional clarification, however, we are responding to a statement in your letter that raises a concern under Title I of the ADA, 42 U.S.C. §§ 12101 et seq., which EEOC enforces. You correctly point out that some individuals cannot obtain a high school diploma, and therefore cannot obtain jobs requiring a high school diploma, because their learning disabilities caused them to perform inadequately on the end-of-course assessment.

Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).

Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant. However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.
We hope this information is helpful. This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.

Sincerely,

/s/
Aaron Konopasky
Attorney Advisor
ADA/GINA Policy Division

This page was last modified on December 1, 2011.

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HOT SPRINGS, Ark. – D&H Company, Dodge Brothers, Inc., and Giant Oil Company of Arkansas, Inc., doing business as Savings Station Dodge Stores and Dodge’s Chicken Store, will pay $190,000 to settle a disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

In its lawsuit, the EEOC charged that the companies denied the store leader of their Dodge’s Chicken Store 631 in Hot Springs, Ark., a reasonable accommodation after she had seizures. Because her doctor restricted her from driving, she requested that the employer allow another employee to conduct daily competitor gasoline price surveys while she handled that employee’s in-store duties. The defendants denied her request for an accommodation and discharged her.

Denial of a reasonable accommodation to people with disabilities violates Title I of the Americans With Disabilities Act (ADA) as amended by the Americans With Disabilities Act Amendments Act of 2008 (ADAAA). The EEOC filed suit on Sept. 28, 2010, No. 6:10-cv-06072, in U.S. District Court for the Western District of Arkansas, Hot Springs Division after first attempting to reach a pre-litigation settlement through its conciliation process. This case was among the agency’s first lawsuits filed under the ADAAA.

EEOC General Counsel P. David Lopez noted that President Barack Obama recognized October 2011 as National Disability Employment Awareness Month.

“The Commission has devoted considerable attention to ensuring compliance with the ADA through the issuance of policy and public attention,” said Lopez. “As reflected by this case, however, the EEOC, when necessary, is prepared to litigate to ensure that persons with disabilities have fair opportunity for economic independence. Indeed, last fiscal year, the EEOC filed approximately 60 disability discrimination cases.”

Faye A. Williams, regional attorney for the EEOC’s Memphis District Office, which has jurisdiction over Arkansas, added, “Reasonable accommodations allow many individuals with disabilities to work. Employers should understand their obligation to provide an employee with a reasonable accommodation unless it poses an undue hardship. The EEOC remains committed to its responsibility in enforcing the ADA.”

In addition to monetary relief, the terms of the 30-month consent decree require that the defendants create a disability policy in its employee handbook for distribution to all its employees; provide for training under the ADA; maintain records of any disability complaints; provide reports to the EEOC; and post a notice to employees about the lawsuit that includes the EEOC’s contact information.

Defendants own and operate convenience stores and gas retailers in 10 states including Arkansas and Mississippi and collectively employ more than 700 people.