ADA in the News: April 19, 2017

Cancer-Based Workplace Discrimination Persists Despite Disability Law, Study Finds

AJMC.com Managed Markets Network

Amendments to the Americans with Disabilities Act (ADA) in 2009 have not eliminated instances of workplace discrimination against employees with cancer, according to a recently published study, but oncologists can offer important input to help workers and employers agree on reasonable accommodations at work.
The landmark ADA law passed in 1990 offered legal recourse for Americans facing disability-based discrimination in the workplace—from hiring to harassment to termination. However, it did not cover employees once their cancer went into remission, so a worker experiencing discrimination based on long-term effects of their previous cancer could not file a complaint under the ADA. In 2009, the law changed to include employees whose disabilities are well-managed or in remission, as long as the impairment “substantially limits a major life activity” while active.

 

“Ignorance” May Not Be Bliss: Tenth Circuit Court Denies Employer's Motion for Summary Judgment on ADA Claim

The National Law Review

In Preeson v. Parkview Medical Center, a federal court in Colorado denied Defendant’s motion for summary dismissal of a claim under the Americans with Disabilities Act (“ADA”). Plaintiff alleged, in relevant part, that her termination from employment constituted discrimination on account of a disability.  Plaintiff suffered from Cyclic Vomiting Syndrome (“CVS”).  As such, she contended her absences from work were the result of sudden spells of nausea. The employer argued that it was not on notice of this condition because she did not reveal it to her supervisor.

To establish a prima facie discrimination case under the ADA, Plaintiff must show that “her employer terminated her under circumstances giving rise to an inference that termination was based on Plaintiff’s disability.” Further, if the employer provides any legitimate, non-discriminatory explanation for the adverse employment action, Plaintiff must demonstrate that the explanation is pretextual, or more likely motivated by discrimination.

In this instance, the employer admitted that CVS constituted a disability. However, it contended that without knowledge of Plaintiff’s disability, it was impossible that her termination could have been “under circumstances giving rise to an inference of discrimination.” The Court disagreed.  It found that, at the very least, the employer was aware that Plaintiff suffered from frequent nausea and vomiting, which caused her to take leave under the Family and Medical Leave Act.  Additionally, Plaintiff informed her supervisor that she took medication to address her nausea.  The Court considered this evidence sufficient to satisfy Plaintiff’s prima facie burden. The Court also found the employer’s reason for Plaintiff’s termination – falsification of time records – to be unconvincing and pretext for disability discrimination.  Specifically, the Court pointed to a supervisor’s disparaging comment that Plaintiff’s leave was “baloney” and found explicitly that this comment was “probative of an animus toward [Plaintiff] needing to take time off from work due to her disability.”

This decision underscores that employees may be able to succeed on ADA claims without specifically disclosing a diagnosis to their employers. Employers cannot take adverse action while ignoring objective information concerning an employee’s medical condition.  Further, supervisors should be educated about the impact of their off-the-cuff opinions about, inter alia, reasons for absences or workers’ medical conditions.

 

Family Gets $118000 in Allergy Discrimination Case

Allergic Living

When a California mom Jessica P.* decided to go back to work, she knew she’d need after-school care for her 7-year-old fraternal twins. Since her daughter Sarah* has severe food allergies, it was essential that she have epinephrine with her. It was also important to know that an adult would be available to give her an auto-injector shot, should it be needed.

 

NC Court of Appeals Says Attempted ADA Accommodation Can Be Terminated Based on Effects on Coworkers

JD Supra

The Americans with Disabilities Act (ADA) encourages employers to engage in an interactive process with disabled employees to determine if there are reasonable accommodations that allow the employee to perform the essential functions of the job. What happens when an employer tries an accommodation but later ends it based on its impact on other employees? A recent decision from the North Carolina Court of Appeals concludes that employers are not permanently required to maintain accommodations that the employee prefers.

 

Ruling in reasonable accommodation for disabilities reversed

Northern California Record

A ruling that provided for reasonable accommodation for employees with disabled associates has been reversed.

The case Castro-Ramirez v. Dependable Highway Express was recently reversed by the California Court of Appeals. The case revolved around Luis Castro-Ramirez and his employer Dependable Highway Express (DHE), which according to Castro-Ramirez, prevented him from being home to provide dialysis to his son, who was in need of a kidney transplant. 

Is Hiring the Most-Qualified Candidate Reasonable? Two Recent Decisions Say Yes

Lexology

For several years now, employers and the EEOC have been at odds over whether employers must automatically reassign a disabled employee to an open position as a reasonable accommodation, or whether employers can maintain a policy of hiring the most-qualified individual for the position, by requiring a disabled employee to compete for open positions against other interested employees. Fortunately, in two recent decisions, the Eleventh Circuit and a Texas district court have helped clarify that an employer’s policy of hiring the most-qualified individual for a job does not violate the ADA.

Retroactive Leniency Is Not A Reasonable Accommodation

The National Law Review

Is an employer required to excuse misconduct that was the result of the employee’s disability? The Tenth Circuit Court of Appeals recently looked at this issue and came to an interesting conclusion.

Janna DeWitt has Type I diabetes and is insulin dependent. Beginning in 1997, DeWitt worked for Southwestern Bell Telephone Company (SW Bell) as a customer service representative in its Wichita, Kansas call center. Recognizing that DeWitt had a disability covered by the Americans with Disabilities Act (ADA), SW Bell permitted her to take breaks as needed to eat or drink in order to raise her blood sugar level. SW Bell also granted DeWitt FMLA leave which she took intermittently for health issues related to her diabetes.

CD Calif. Cites Lack of Clear Regulatory Guidance in Dismissing ADA Claims Relating to Website Accommodations for Visually-Impaired

Lexology

The U.S. District Court for the Central District of California recently dismissed a claim brought under the federal Americans with Disabilities Act (ADA) brought by a visually-impaired plaintiff who alleged that the defendant pizza company’s website did not permit users to complete their purchases using a screen-reading software program. The plaintiff also alleged that the company’s mobile app did not allow him to access the menu on his iPhone using a particular software.

In dismissing the action without prejudice, the Court concluded that there were no regulations clarifying what web accessibility accommodations are required under the ADA. Thus, the Court held, it was uncertain whether the company’s web accessibility accommodations complied with the ADA. In so ruling, the Court expressly called on Congress, the Attorney General, and the Department of Justice to issue regulations setting minimum web accessibility standards.

From the Tinfoil Hat Files: Plaintiff Sleeping on the Job Claims Sensitivity to Electromagnetic Voltage

JD Supra

The 7th Circuit, in a short opinion issued April 6, zapped a plaintiff’s claim that he was terminated in violation of the ADA based on his condition of being overexposed to electromagnetic voltage at his job. Mr. Hirmiz, a desk clerk at a Travelodge hotel, was caught on video sleeping during a fight that broke out among guests in the lobby. He was fired. Mr. Hirmiz sued the hotel claiming that his employer failed to accommodate his disability–hypersensitivity to electromagnetic voltage. He also alleged that his termination was in retaliation of his filing a complaint with OSHA that the hotel had high-voltage levels. The lower court dismissed his case because he failed to show that he was actually disabled under the ADA and could not show that his OSHA complaint played any role in the termination.

Retirement after FMLA isn't accommodation

Business Management Daily

An employee who has run out of FMLA and other leave may still be entitled to a reasonable accommodation of more time off. However, that right is only available if the employee has an estimated date by which he will be able to return and perform the essential functions of the job with or without an accommodation.

But what happens if the employee wants to retire at the end of the leave? That makes a request for more leave unreasonable, according to a recent decision.

Recent case: Robert needed back surgery and began missing work in November 2012. He first used FMLA leave and then other accrued time off. Then, in January 2013, Robert’s doctor said he needed six more months to recover well enough to do his job.

On March 25, 2013, Robert sent his boss a note saying he wanted to retire on May 31, 2013. That was one day before he was scheduled to return to work per his doctor’s certification. He was terminated in April after the employer concluded that he was out of FMLA and other leave and was not entitled to extended unpaid ADA reasonable accommodation leave because he was never going to return.

Robert sued, alleging ADA accommodation violations. But the court sided with the employer on the ADA claim, reasoning that because Robert had indicated he was retiring and never intended to return, the extended leave would have been futile. (Moss v. Harris County, 5th Cir., 2017)

Facilities Dept. Pushes for ADA Accessibility

Wanderer

The facilities manager in Rochester told the Board of Selectmen on April 10 that for weeks he has been self-assessing handicap accessibility within Rochester buildings and properties, and he gave the board a summary of what steps he would like to take next to bring the town into Americans with Disabilities Act compliance.

Businesses get time to fix ADA violations

Arizona Daily Sun

State lawmakers gave final approval Monday to legislation to give businesses time to fix violations of disability laws that opponents say they should already be obeying.

SB 1406 would require someone affected by a violation of the Arizonans with Disabilities Act to notify the business owner who would have at least 30 days to fix the problem before litigation could be filed.

Disabled person alleges JM Tire Corp. is not ADA compliant

Florida Record

A Miami business is alleged to not have a compliant parking space for disabled patrons.

Renzo Barberi filed a complaint on April 3 in the U.S. District Court for the Southern District of Florida against JM Tire Corp. alleging that the real property operator violated Title III of the Americans with Disabilities Act.

According to the complaint, the plaintiff alleges that he visited defendant's facility but was denied full and equal access and full and equal enjoyment of the facilities, services, goods and amenities offered therein. He alleges he has been damaged and will continue to be damaged unless the defendant undertakes and completes corrective procedures. The plaintiff holds JM Tire Corp. responsible because the defendant allegedly failed to provide a compliant disabled parking space, compliant directional and informational signage and a compliant accessible route to the main entrance.

The plaintiff seeks an order requiring defendant to alter the subject facility to make it accessible to and usable by individuals with disabilities, award for damages, reasonable attorney's fees, costs and such other and further relief as the court deems necessary, just and proper. He is represented by Ronald E. Stern of The Advocacy Law Firm in Hallandale Beach.

U.S. District Court for the Southern District of Florida Case number 1:17-cv-21227

Court Tosses Online ADA Suit Over Due Process Concerns

Lexology

In the latest decision applying the Americans with Disabilities Act to an online retailer, a California federal court judge granted a defendant's motion to dismiss over concerns about due process.

The lawsuit involved charges that Domino's Pizza ran afoul of the statute because neither its website nor its mobile app was in compliance with version 2.0 of the W3C's Web Content Accessibility Guidelines (WCAG). For visually impaired plaintiff Guillermo Robles, that meant he was unable to order a pizza online because the site and app lacked the necessary screen reader software.

When Breast Cancer Threatens Your Job

U.S. News & World Report

Having a breast cancer diagnosis is hard enough without worrying about job security. With supportive employers, many women continue to work during cancer treatments like chemotherapy. But other women, often in low-paying positions or small organizations, are more vulnerable. And no matter what your career, cancer-related fatigue, nausea and medical appointments mean you'll likely have to negotiate for time off and extra breaks throughout your treatment and recovery. If you're among the 12 percent of U.S. women who develops breast cancer at some point in her life, experts provide insight about disclosing your illness, workplace protections and available resources if job loss looms.

Judge Finds 'No Basis' For ADA Claims Against Disney

Disability Scoop

A second federal judge has rejected claims from families who sued Disney over changes to disability access at its theme parks, but a lawyer representing the kids and their parents isn’t backing down.

In a ruling this month, U.S. District Judge Manuel Real in California tossed out claims brought by families of children with disabilities who alleged that Disney’s 2013 policy changes violated the Americans with Disabilities Act.

Augmented Workplace: Potentials and Perils of Wearable Tech

Bloomberg BNA

An interesting video showing how courier company DHL incorporates augmented reality smart-glasses into its warehouse operations launched a session on smart technology at the American Bar Association’s national symposium on technology in labor and employment law. Employees equipped with “vision picking” glasses scan a package’s bar code and then receive color-coded warehouse maps and related task information in their field of vision, telling them exactly where that package should go. 

CBC adds Autism Spectrum Assistance Program

Log Cabin Democrat

Central Baptist College has announced a new program to ensure student success called the Autism Spectrum Assistance Program (ASAP).

According to a news release, ASAP is a program for students interested in attending college, but are in need of additional supports in order to be successful.

Service pets offer guidance, support

The Advocate

California law guarantees people with disabilities the right to bring trained service dogs and psychiatric service dogs, but not emotional support animals, to any public place and Contra Costa College is no exception to that rule.

Letter: Sometimes businesses need nudge to comply

Times Herald-Record

First of all I would like to say that Dawn Turley is not in it for the money. She is a kind, compassionate, giving person. I have known Turley for a few years and volunteer with her. The ADA is a needed law but unfortunately, it has no enforcement provision. The only recourse with which to deal with violations is through lawsuits. This is guaranteed to not win you any friends but, unfortunately, is the only avenue available to remedy a violation.

Most disabled folks do not wish to draw attention to themselves and, as a result, tend to remain quiet when faced with a violation of the ADA. So, when a wheelchair can’t enter a bathroom in a restaurant or can’t maneuver down a store’s narrow aisles or can’t even gain access to an establishment, they tend to stay quiet, go away and never return. This is not good for business and it’s against the law.

To avoid ADA-related problems, businesses should review whether their facilities meet the legal requirements and make the adjustments needed to comply. This is not just being fair to our disabled citizens, it’s also good for business.

Tom Buckley, disabled citizen

'I have some regrets,' says woman behind wave of ADA lawsuits

The Denver Channel

A woman who says she filed dozens of lawsuits hoping to advocate for people with disabilities now says she feels used by a money-making effort.

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