ADA in the News April 5, 2019

JBS Carriers to Pay $250,000 and not Resume ErgoMed Screening to Settle EEEOC Discrimination Suit

According to the EEOC's lawsuit, JBS Carriers contracted with a third party, ErgoMed Work Systems, Inc., to administer pre-employment screening of applicants for truck driving jobs. The EEOC alleged that this process unlawfully screened out people with disabilities who were qualified for the truck driving jobs they sought. The screening subjected all applicants to a medical history questionnaire, a physical examination, and nine physical abilities tests. If an applicant failed any one of the tests or was prevented by ErgoMed from taking the tests based on information obtained from the questionnaire or during the physical examination, ErgoMed sent JBS Carriers a negative job recom­mendation. The lawsuit alleged that JBS Carriers then withdrew conditional job offers to applicants based on ErgoMed's recom­mendations.

For example, the EEOC alleged in its suit that one applicant, Cindy Divine, had over 30 years of commercial truck driving experience. After JBS Carriers offered her a job, Divine traveled to Greeley, Colo. to complete the screening. According to the EEOC's lawsuit, ErgoMed concluded that she had disqualifying issues with her shoulders, even though Divine told ErgoMed's examiner that she was only sore from carrying heavy luggage from the bus stop to her motel. ErgoMed prevented Divine from completing its physical tests and provided a negative recommendation to JBS Carriers, which then withdrew her job offer.

The Americans with Disabilities Act (ADA) prohibits employment discrimination based on disability and makes it illegal for employers to impose standards or criteria for job applicants that have the effect of discriminating based on disability or that screen out individuals with disabilities. In its suit (EEOC v. JBS Carriers, Civil Action No. 1:18-cv-02498-CMA-NRN (D. Colo.)), the EEOC charged that the pre-employment screening required by JBS Carriers and administered by ErgoMed violated the ADA because it excluded qualified applicants with disabilities. The EEOC also alleged that by relying on ErgoMed's screening without giving individual consideration to job applicants, JBS Carriers discrim­inated against job applicants based on disability and failed to provide reasonable accommodations.

The settlement payment of $250,000 will be distributed among five individuals who were adversely impacted by the ErgoMed screening and who participated in the EEOC's investigation.

Blue Cross pays $75K to settle challenge to audio job application

HR Dive

  • Blue Cross/Blue Shield (BCBS) of Texas, has agreed to pay $75,000 to settle a lawsuit brought by the U.S. Equal Employment Opportunity Commission alleging it of disability discrimination under the Americans with Disabilities Act (ADA).
  • Sheryl Meador, who is deaf, applied online for a claims' examiner job with BCBS, EEOC said. She was not able to complete the application process because it included a 35-minute assessment exam with an audio portion that did not contain captions or provide other visible accommodations for hearing-impaired applicants. Meador contacted the company's recruiting coordinator and asked for a reasonable accommodation and repeatedly followed up with the company's human resources staff, but the company stopped communicating with her, EEOC said. "She was well-qualified for this position, irrespective of the nature of her disability. Unfortunately, however, the application process became a needless roadblock to her employment," EEOC Trial Attorney Heather Nodler said in a news release.
  • BCBS also agreed to conduct annual ADA training, inform employees and job applicants of their rights — including the right to receive reasonable accommodation during the application process — and put into place a method for communicating with hearing-impaired job applicants.

Dive Insight:

The ADA protects employees from discrimination based on their disabilities and generally requires employers to make reasonable accommodations to enable employees and applicants to perform the essential functions of a given position.

In an informal discussion letter released late last year, an EEOC attorney advised that digital interviews don't necessarily violate the ADA. When requested, a company must provide a reasonable accommodation that will allow a job applicant to use the digital interview format or must provide another means for conducting the interview unless doing so creates an undue hardship for the employer, the discussion letter clarified.

If employers fail to do so, it appears likely that they'll face legal consequences. Plaintiffs filed at least 814 such lawsuits under Title III of the ADA in 2017, according to Seyfarth Shaw LLP. Employers that want to stave off potential legal liability in this area can provide online job applicants with a means to get help, such as providing a phone number to call. Online job application systems can also provide alternative methods to provide requested information such as e-mail, fax, telephone or mail, Beth Loy, principal consultant with the Job Accommodation Network (JAN) previously told HR Dive. Loy recommended, among other things, that employers enlist an expert to review the system for accessibility and that people with disabilities be a part of the testing process.

11th Cir.: Worker's accommodation request negates 'regarded as' ADA claim

HR Dive

  • A UPS employee could not claim his employer improperly regarded him as disabled after he himself initiated the Americans with Disabilities Act (ADA) accommodation process (McGuire v. United Parcel Service, Inc., No. 17-cv-13258 (11th Cir. Mar. 28, 2019)).
  • It was undisputed that the employee, who had a shoulder injury and was on narcotics, could not return to his original position as a package-car driver, the court found; he was also unable to perform the heavy lifting that was an essential function of the job. 
  • Once the accommodation process began, the employee was not entitled to a job of his choosing, and he was provided with — and agreed to — the reasonable accommodation of a part-time sorting position. No full-time positions were available or could be created, due to union seniority rules.

Dive Insight:

The ADA prohibits employers from discriminating against qualified individuals with a disability, defined as a physical or mental impairment that substantially limits one or more major life activities. It is also illegal to discriminate against a qualified individual on the basis of a perceiveddisability, whether or not such a disability actually exists; this is known as "regarded as" discrimination.

Since 2008, the focus for establishing coverage under the "regarded as" prong of the ADA is on how a person has been treated because of a physical or mental impairment, rather than on what an employer may have believed about the nature of the person's impairment. Because the plaintiff in this case was actually disabled rather than regarded as disabled, the inquiry turned to whether the employer's accommodation was reasonable.

Barring an undue hardship — a difficult standard for employers to meet — employers are required to offer a reasonable accommodation to an otherwise qualified employee with a disability. A reasonable accommodation could include (among other things) job restructuring, a modified or part-time schedule, or reassignment to a vacant position.

An accommodation may be considered "reasonable" even if it isn't specifically what the employee requests or would most prefer. Additionally, as in this case, available accommodations may sometimes be constrained by an employer's or union's seniority system. In this situation, the plaintiff failed to meet the burden of showing special circumstances that would necessitate an exception to the seniority system.

Vives v. N.Y.C. Dep't of Corrections

Jury Could Find Perceived Disability, Gender, Ethnicity To Be Motives Behind Termination


Practice Area: Employment Litigation

Industry: State and Local Government

Date filed: 2019-04-27

Court: U.S. District Court for the Eastern District of New York, U.S. - EDNY

Judge: District Judge Margo Brodie

Case Number: 15-CV-06127

Case Digest Summary

Vives, a 54-year-old Hispanic woman, was a New York City corrections officer from July 1987 until Sept. 9, 2014, when she was terminated for medical incompetence after her return to work following a May 2012 off-duty fall that injured her wrist and thumb. During the same period as Vives's removal from her workplace, and termination, male non-Hispanic officers were allowed to return to work on Medically Monitored Return (MMR) "light duty" status after long medical leaves for which they were not disciplined. There was ample evidence from which the jury could find the New York City Department of Corrections' (DOC) motive for terminating Vives was her perceived disability under the Americans with Disabilities Act (ADA) and/or based on her gender and ethnicity in violation of Title VII of the Civil Rights Act. Defendants did not show any legitimate nondiscriminatory reason for terminating Vives. The evidence showed Vives was terminated because of her prolonged absence, that she was absent because of her medical condition, and that defendants were aware of her medical condition. 

Wineries being sued for non-compliant websites


Local wineries and bed and breakfasts are being sued by law firms that claim their websites aren’t accessible to the visually impaired.   The owners of the businesses being sued say instead of just asking for the problems to be fixed, the New York City law firms and their clients, want payouts. 

“ADApt your Website”: Key Takeaways from the Domino's Website litigation

JD Supra

The United States Court of Appeals for the Ninth Circuit recently issued a decision holding that the Americans with Disabilities Act (“ADA”) applies to websites that connect customers to goods and services offered at a physical location.

In Robles v. Domino’s Pizza LLC, the plaintiff, who is blind, brought suit against Domino’s for failing to “design, construct, maintain, and operate its [website and app] to be fully accessible to and independently usable by Mr. Robles and other blind or visually-impaired people,” in violation of the ADA. Plaintiff, who utilized screen-reading software that vocalized information on websites, tried unsuccessfully on at least two occasions to order a customized pizza from a Domino’s Pizza location.

The trial court granted summary judgment for Domino’s. On appeal, the Ninth Circuit considered 1) whether the ADA applies to websites and apps, 2) due process implications of applying the ADA to websites, and 3) jurisdictional concerns.

Key takeaways are as follows:

The ADA Applies to Websites and Apps that Facilitate Access to Goods and Services at a Physical Location

The Court clarified that the ADA applies to the services of a place of public accommodation, not merely services that occur in a place of public accommodation, noting that Domino’s website and app facilitated access to delivery or pickup at Domino’s brick-and-mortar location, which was itself a place of public accommodation. Thus, the Court found a sufficient enough nexus between Domino’s website and app and its offered goods and services to determine that the ADA did indeed apply.

In short, if a company’s website or app offers customers a direct link to services offered at a physical location, the ADA applies, and the company should include ways to make the website accessible to disabled persons.

The ADA does not Apply to Websites that are not Linked to a Physical Place in which to Access Goods and Services

In its analysis of the nexus between Domino’s website and its offered goods and services, the Court noted that the ADA only covers “actual, physical places where goods or services are open to the public, and places where the public gets those goods or services.” Citing Weyer v. Twentieth Century Fox Film Corp., in which the ADA was held not to apply to a company’s allegedly discriminatory insurance policy, the Robles Court emphasized that the insurance policy did not concern accessibility to the company’s physical address, nor was the insurance policy a good offered by and at the company’s physical address. However, as stated above, the Court found a sufficient nexus between Domino’s website and goods and services to apply the ADA.

Summarized, when an offered good or service has nothing to do with a company’s physical location, the Court noted that the ADA does not apply.  In this instance, it is important to note that the Court did not distinguish between delivery and pickup in its analysis of the nexus, as both required services that were directly associated with and heavily advertised for Domino’s brick-and-mortar location.

There are no Due Process Violations or Jurisdictional Concerns Associated with Applying the ADA to Websites

Domino’s main argument was that it did not receive fair notice of the specific guidance on how to make its website and app available to blind customers because the DOJ never provided any recommendations.  It argued that the lower court was right when it held that the courts lacked primary jurisdiction to determine the issue because “DOJ ‘regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with Title III.’”

The Ninth Circuit disagreed on the due process issue, finding sufficient that the Department of Justice has “repeatedly affirmed the application of [T]itle III to Web sites of public accommodations.” The Court further observed that specific regulations merely supplement statutory obligations and thus held a lack of a specific regulation cannot eliminate an existing statutory obligation.

The Court also reversed the district court on the jurisdictional issue, stating that a Court should not invoke primary jurisdiction when the agency responsible for regulation of the issue is aware of but has expressed no interest in the matter, and when referral to the agency would significantly postpone the ruling. The Court noted that in 2010, the DOJ had sent out notice of a proposed rulemaking signaling that it might issue regulations regarding website accessibility, but withdrew it in 2017. Thus, the Court expressed that the DOJ was aware of but lacked interest in the issue. The Court went further and noted that staying the case until the DOJ provided guidance would needlessly delay any ruling on the matter. Thus, the Court held that it did in fact have jurisdiction over the issue.

Put concisely, companies are all on “fair notice” that the ADA applies to websites connecting customers to a physical location even though the DOJ has not provided specific blueprints for what accommodations must be made.

The Court left open how companies must comply with the ADA’s requirements

Although the Court noted that accommodations must be “effective,” it did not rule as to what a company must do to satisfy the ADA’s requirements.  It noted that once the lawsuit was filed, Domino’s added a hotline to its app and website to assist disabled customers with screen-reading software. The Court held that without any discovery showing the effectiveness of such a measure, it would be inappropriate to determine that Domino’s met its obligations under the ADA.


The Court did not reach an opinion on whether Domino’s website or app actually complied with the ADA. Instead, it remanded the case back to the district court to determine whether Domino’s website and app provide the blind with effective communication and full and equal enjoyment of its products and services.

In closing, companies should be mindful of the ADA when designing their websites. If the website provides a connection to a good or service offered at a physical location, then the ADA applies, and the company should ensure that disabled persons have sufficient and effective access to its goods and services offered through that website.

Miami Springs settles suit alleging city's website violated ADA

Miami Herald

The City of Miami Springs has quietly settled an ADA lawsuit.

Juan Carlos Gil, 37, who has cerebral palsy and is legally blind, settled a federal case Feb. 11 against Miami Springs. The suit alleged the city was violating the Americans with Disabilities Act.

“Because [Miami Springs’] online electronic document content is not available for persons who are blind or low sighted, defendant has denied plaintiff access to that electronic content,” states the 30-page complaint filed on Oct. 19 in Miami District Court.

Gil, a spirited advocate for the disabled, has filed many similar cases throughout the state, contending some local government websites do not accommodate blind and vision-impaired users.

Visit Fort Wayne launches accessibility web page

News Sentinel

Visit Fort Wayne and its community partners have launched the new Fort Wayne Accessibility landing page because, as the city becomes an increasingly popular destination for adaptive sports events, it is important that visitors of all abilities have a resource to identify accessible experiences in Fort Wayne.

“Visit Fort Wayne developed the Fort Wayne Accessibility web page as a resource for visitors with disabilities so they can experience our city to its fullest,” Visit Fort Wayne President/CEO Dan O’Connell said in a statement. “Here visitors will find resources ranging from general information about accessible experiences in Fort Wayne to specific accessible features of our city’s popular attractions.”

The page also includes content such as community resources, news and events relevant to visitors and residents with a disability.

The goal of this project is to provide a guide for people of all abilities to experience our city to its fullest. In order to do this, Visit Fort Wayne formed an advisory committee of subject matter experts from AWS Foundation, Turnstone, The League, Autism Society of Indiana, Easterseals Arc of Northeast Indiana, city of Fort Wayne, Indiana ABA Institute and Fort Wayne Parks Department.

“Ideally, every destination in our community will strive to go beyond basic ADA requirements. Fully embracing and promoting access to the wonderful activities Fort Wayne has to offer ensures inclusion of everyone, everywhere” stated Patti Hays, AWS Foundation CEO.

This page is the first step in a larger effort from Visit Fort Wayne to provide a detailed accessible guide to visitors and residents. For more information about the Fort Wayne Accessibility web page contact O’Connell at Visit Fort Wayne (260) 424-3700.

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