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Oversharing Employer Faces Trial

Day & Zimmerman NPS Inc.'s decision to disclose the details of an Equal Employment Opportunity Commission (EEOC) charge to a large group of employees will cause them to face a jury.

Gregory Marsh was one of 150 temporary electricians working at a nuclear power station. Mr. Marsh requested accommodation from the staffing company after providing a doctor’s note stating that his lung disease prevented him from working around radiation. NPS removed him from the assignment and did not reassign him. He filed an EEOC charge alleging a violation of the Americans with Disabilities Act (ADA). As part of the investigation, the EEOC sought detailed information about the other electricians. NPS sent a letter to the electricians that identified Mr. Marsh, the nature of his claim for discrimination, the details of his accommodation request, and the company’s denial of the charge. The letter also notified the electricians that there would be no retaliation for participating in the investigation and that they would provide an attorney if requested. The EEOC found out about the letter and sued, claiming that the letter was retaliation for filing a charge of discrimination and that it interfered with Mr. Marsh’s rights under the ADA.

The EEOC and Mr. Marsh will be able to proceed on both of those claims. With regard to the retaliation claim, the federal district court found that a “reasonable fact-finder” could decide that NPS’ disclosure and dissemination of the letter was an adverse employment action. NPS' reference in the letter to the EEOC charge suggested that it was specifically a response to it. While NPS put forth justification for sending the letter, the court believed that a jury could find those reasons pretextual. The ADA prohibits interference with rights given under the statute. Per the court, a jury could find that the letter “had a reasonable tendency to coerce or intimidate the recipients” and Mr. Marsh for pursuing their rights under the ADA.