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Equal Employment Opportunity Commission v. Hirschbach Motor Lines, Inc.

United States District Court, D. Maine

August 21, 2019

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
HIRSCHBACH MOTOR LINES, INC., Defendant.

          FOR PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, J EFFREY BURSTEIN Regional Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. MARKUS L. PENZEL Senior Trial Attorney OPPORTUNITY COMMISSION Boston Area Office John F. Kennedy.

          FOR HIRSCHBACH MOTOR LINES, INC. James R. Erwin Pierce Atwood

          CONSENT DECREE

          George Z. Singal U.S. District Judge

         This cause of action was initiated on April 30, 2018, by the Equal Employment Opportunity Commission (“EEOC” or “the Commission”), an agency of the United States Government, alleging that Defendant Hirschbach Motor Lines, Inc. (“Hirschbach”) engaged in unlawful employment practices in violation of Titles I and V of the Americans with Disabilities Act of 1990 (“ADA”) and Title I of the Civil Rights Act of 1991. Specifically, EEOC alleges that Hirschbach violated the ADA by screening applicants for employment by using a “back assessment/back screen” that is not job-related or consistent with business necessity under 42 U.S.C §12112(b)(6) (hereafter the “Back Assessment Claim”). In addition, EEOC alleged that Hirschbach, in violation of the ADA, required that employees returning from medical leave be 100% free of restrictions and limitations (hereafter the “100% Healed Claim”). Hirschbach contends that its Back Assessment is job-related and consistent with business necessity and that it has not had a “100% Healed” policy.

         The parties desire to settle this action amicably and to stipulate to the entry of this Consent Decree as final and binding between them and Hirschbach's parent organizations, officers, directors, agents, successors, assigns, full or partial purchasers, subsidiaries, affiliates, and any other corporation, unit, or other entity with which Hirschbach may merge or consolidate.

         In consideration of the mutual promises of each party to this Consent Decree, the sufficiency of which is hereby acknowledged, the parties agree as follows, the Court finds appropriate, and it is therefore ORDERED, ADJUDGED AND DECREED that:

         A. GENERAL PROVISIONS

         1. This Consent Decree resolves all matters related to Civil Action No. 2:18-cv-00175-GZS. This Consent Decree also resolves the issues raised in EEOC Charge Number 16B-2014-00124 (“the Charge”), which served as the jurisdictional prerequisite in this case. This Consent Decree does not resolve any other charge of discrimination currently pending before EEOC, or any charge that may be filed in the future, other than the Charge. EEOC reserves all rights to proceed with the investigation and/or litigation of any other charges and claims, including but not limited to, the investigation and litigation of any pending or future charges or claims against Hirschbach.

         2. The terms of this Consent Decree represent the full and complete agreement of the parties.

         3. The Court has jurisdiction of the subject matter of this action and over the parties, venue is proper, and all administrative prerequisites have been met.

         4. The parties have agreed that this Consent Decree may be entered into without findings of fact and conclusions of law having been made and entered by the Court.

         5. The Parties shall not contest the validity of this Consent Decree, or the jurisdiction of the United States District Court to enforce this Consent Decree and its terms, or the right of EEOC to bring an enforcement action or proceeding upon the breach of any term of this Consent Decree by the other Party.

         6. The terms of this Consent Decree are adequate, fair, reasonable, equitable, and just. The rights of the Parties and the public interest are adequately protected by this Decree.

         7. The provisions of this Consent Decree applicable to “Hirschbach” shall include all Hirschbach's officers, managers, agents, successors, assigns, full or partial purchasers, subsidiaries, affiliates and any other corporation or other entity into which Hirschbach may merge, or consolidate or otherwise become affiliated with.

         8. The terms of this Consent Decree are and shall be binding upon the present and future subsidiaries, representatives, agents, directors, officers, successors and assigns of Hirschbach.

         9. This Consent Decree is being issued with the consent of the parties and does not constitute an adjudication or finding by this Court on the merits of the allegations of the Complaint, which Hirschbach expressly denies. Nothing contained in this Consent Decree shall be construed as an admission of liability on the part of Hirschbach.

         10. The Effective Date of this Consent Decree shall be the date this Consent Decree is docketed by the Clerk of the Court after it is signed and/or receives approval from the Court.

         B. INJUNCTION

         11. Hirschbach is enjoined from adopting any pre-employment qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.

         12. Hirschbach is enjoined from using the Back Assessment/Back Screen.

         a. Notwithstanding this prohibition, Hirschbach may require, post-offer, each applicant for employment as a truck driver to take, in addition to the DOT physical and its Road Test, a separate assessment, which may be performed by a licensed medical professional, by other reasonably appropriate personnel, or by using specialized equipment designed to test physical abilities, requiring the applicant to demonstrate the following physical abilities: (1) stack boxes weighing up to 40 pounds to an overhead height; (2) carry, maneuver, and stack boxes weighing up to 50 pounds from the floor up to waist height; and (3) move oneself from under the front side of a trailer to the back side of a trailer in such a manner that would allow the applicant to inspect and make minor repairs and adjustments to components underneath the length of the trailer.

         b. EEOC agrees that the following physical tests may be performed in order for an applicant to demonstrate the physical abilities set forth in paragraph 12a:

• Use two arms to lift a 40-pound barbell or other weight (or simultaneously lift a separate, 20-pound weight with each arm) above his or her head unassisted;
• Pick up a 50-pound barbell or other weight (or simultaneously lift a separate, 25-pound weight with each arm) from the floor to waist unassisted;
• Pick up a 50-pound barbell or other weight (or simultaneously lift a separate, 25-pound weight with each arm) from the floor to waist, and carry it a distance of 25 feet unassisted;
• Step up onto a chair (or raised platform of similar height) with both legs, holding onto ...

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