Job descriptions key to ADA accommodations
Business Management Daily
It’s essential to have solid job descriptions that outline exactly what every employee is supposed to do. Without a good job description, a disabled employee can argue that very little about a job is essential—and therefore that they don’t have to do much work.
With a job description that lists essential tasks, it’s much easier to argue the employee’s disabilities cannot be accommodated.
Recent case: Pamela, an HR assistant for the Department of Homeland Security (DHS), suffered from many medical conditions, including chronic ear disease, severe depressive disorder, anxiety and neurological pain syndrome. Her performance evaluations noted that she needed to improve in many areas her supervisors considered essential to success.
Pamela became anxious about her job and requested reasonable ADA accommodations. She also took 12 weeks of FMLA leave.
When it was time to return, she presented a doctor’s note that said she needed to work in a less stressful position. When Pamela again requested accommodations, DHS sent her doctor a copy of her job description and asked which tasks she could perform. He checked “no” on a long list of tasks, including many requiring concentration such as:
- Prioritize work
- Evaluate data such as placing applicants in rank order on an inventory
- Interview interns and employees
- Revise and administer questionnaires.
The DHS concluded Pamela could not be accommodated and that no open positions existed that would fit her medical restrictions. She applied for disability retirement status and was approved—but she also sued, alleging failure to accommodate.
The court tossed out her case. It reasoned that DHS had shown that Pamela’s restrictions meant she couldn’t perform much of her job. Accommodating her was unreasonable. (Duray v. Johnson, No. 12-2800, DC MN, 2016)
ADA: Are You Participating in the Interactive Process in "Good Faith"?
The National Law Review
The Americans with Disabilities Act (“ADA”) provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . .” 42 U.S.C. § 12112(b)(5)(A). In Ace v. Armstrong Utilities, Inc., Magistrate Judge Robert C. Mitchell, denied Armstrong’s motion for summary judgment on a failure to accommodate claim under the ADA. (Civil Action No. 14-526, W.D. PA, February 25, 2016). The Court held that there was a genuine issue of material fact as to whether Armstrong made a “good faith” effort to accommodate the plaintiff, Mr. Ace.
Mondaq News Alerts
The Western District of Washington recently emphasized that the obligation under the Americans with Disabilities Act (“ADA”) to engage in good faith interactive dialogue when seeking an accommodation that will permit an employee with a disability to perform his or her job applies to employees as well as employers. In Huge v Boeing Co. (W.D. Wash. March 4, 2016), following a bench trial the court found the employee had failed to present evidence that her employer, Boeing Co., did not take reasonable measures to accommodate her Asperger’s Syndrome where the record showed the employee repeatedly engaged in obstructive and uncooperative behavior in response to Boeing’s proposed accommodations.
Woman alleges Kenilworth Playground violates ADA
The Louisiana Record
A disabled person is suing the city of New Orleans City, alleging that the Kenilworth Playground has architectural barriers that prevented her from fully using the property.
Tasha Herbert filed a complaint on April 6 in the U.S. District Court for the Eastern District of Louisiana against New Orleans City alleging violation of the Americans with Disabilities Act.
According to the complaint, the plaintiff alleges that she encountered architectural barriers at the playground and experienced serious difficulty utilizing the accommodations offered at the property. The plaintiff holds New Orleans City responsible because the defendant allegedly failed to perform alternations to the property and failed to bring the existing architectural elements in compliance with the requirements of the ADA and discriminated against her by excluding and/or denying her the benefits of its services, programs and/or activities.
The plaintiff requests a trial by jury, an order directing defendant to alter the property to make it accessible to and useable by individuals with mobility disabilities, an award for damages for her emotional distress, preliminary and permanent injunctive relief against defendant, an order directing defendant to alter and modify the property to make it ADA compliant, attorneys’ fees, costs and expenses and such other relief as the court may deem just and proper. She is represented by Andrew D. Bizer and Garret S. DeReus of The Bizer Law Firm in New Orleans.
U.S. District Court for the Eastern District of Louisiana Case number 2:16-cv-02870
Does Your Company Website Violate the ADA?
JD Supra
The Americans with Disabilities Act (ADA) has is most commonly thought of as prohibiting workplace discrimination against individuals with disabilities and requiring the elimination of physical barriers to public locations. But a recent wave of litigation presents a less obvious application of the ADA that may have a far broader impact: the potential application of the ADA to websites. Before discussing the recent litigation, we briefly address two threshold questions (1) does the ADA apply to websites at all; and (2) if so, by what standards would a website’s ADA compliance be gauged?
JD Supra
Any business operating a website for use by customers or other members of the public should take heed of a recent California decision that found a retailer liable for violations of federal and state disability access laws based on a disabled individual’s inability to navigate a website using a screen reader program.
In Davis v. BMI/BNB Travelware Co., the plaintiff, a blind individual, filed suit against a retailer based on the theory that its website, ColoradoBaggage.com, was not accessible to the disabled. The plaintiff maintained that his screen reader software (commonly used by individuals with visual impairments to access online content) experienced various problems when attempting to navigate the website, which had not been properly coded to be compatible with such screen reader programs. The California Superior Court, the trial court, ruled in favor of the plaintiff on claims under the Americans with Disabilities Act and the California Unruh Civil Rights Act, awarding monetary damages and broad injunctive relief against the retailer.
Chicago Attorney Accused Of Shaking Businesses Down With ADA Lawsuits
CBS Local
The owner of Mixed Co. Salon says he’s baffled by a lawsuit claiming his River North business isn’t accessible to the disabled. He says there is a sign outside and buzzer and lift nearby. Nonetheless, he was in Federal Court on Friday, fighting a lawsuit.
The Observer Editorial: Inclusion requires accommodation
Observer Online
At Notre Dame and Saint Mary’s, community is of the utmost importance. Both schools stress that during their time here, students will find lifelong friends and become a part of a network that provides support and strives to uplift every student, faculty and staff member.
But in order for this community to grow and flourish, it must be inclusive. It must allow all of its members to have equal access to the opportunities our schools offer.
Salt Lake Tribune
The family of a woman with Down syndrome is pushing back after she was expelled from an educational program for adults with disabilities.
The New California Regulations Part IV: Support Animals in the Workplace
Lexology
A request for an accommodation is a protected activity that could give rise to a claim of retaliation or discrimination. Courts were previously split on the issue of whether merely requesting an accommodation constitutes protected activity. Recent legislation—AB 987—clarified this point, and California Code of Regulation section 11068(k) now reiterates that it is unlawful for an employer to retaliate against a person for requesting a reasonable accommodation of a disability, regardless of whether the employer ultimately grants the request.
The regulation’s statement of purpose has also been amended to clarify that employers should approach all requests for accommodation from a problem-solving point of view. California Code of Regulation section 11064(b) has also been revised to specify that the interactive process requires an individualized assessment of (1) the requirements of the job at issue and (2) the specific physical and mental limitations of the individual that are directly related to the need for reasonable accommodation.