ADA in the News: August 11, 2017

EEOC Sues UPS Freight for Violating the Americans With Disabilities Act

UPS Freight violated federal law by treating a truck driver who was unable to drive because of a minor stroke worse than it treated drivers unable to drive because they were convicted of driving while intoxicated, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. The suit also challenges UPS Freight's current union contract with the International Brotherhood of Teamsters, which requires discrimination in compensation for truckers with disabilities, according to the agency.

Check Your Handbooks!!! UPS Settles Maximum Leave Policy Violations for $2 million

JD Supra

The EEOC filed suit against UPS on behalf of approximately 90 current and former employees for multiple violations of the Americans with Disabilities Act (ADA). The agency charged UPS with failing to properly accommodate employees with disabilities. Most importantly, the EEOC alleged that UPS had a maximum leave policy that automatically terminated employees when they reached 12 months of leave, without engaging in the interactive process required by law. UPS settled the claim for $2 million, and agreed to make several changes to its policies.

What this means for Wisconsin employers:  Maximum leave policies are unlawful under both Wisconsin’s Fair Employment Practices Act and the ADA.  This includes any limitation on leave after an employee exhausts leave under FMLA or a short-term disability plan.   Review your handbooks and internal policies as soon as possible to make sure you are not in violation of the law.

Connecticut Employers Will Need To Accommodate Pregnant Employees

JD Supra

A new state law that becomes effective October 1, 2017, expands existing legal protections for pregnant employees under federal and state laws and will require employers to pay closer attention to the ways in which they treat pregnant workers. Under current standards, federal law prohibits employers from discriminating against employees due to pregnancy while Connecticut law requires employers to do more, affording employees job protection during any reasonable leave of absence due to pregnancy and the right to transfer to a more suitable position during the pregnancy. The new law, titled “An Act Concerning Pregnant Women in the Workplace,” goes further by imposing on Connecticut employers an explicit duty to provide pregnant employees with “reasonable accommodations” in the workplace.

Most employers are familiar with the concept of reasonable accommodation from the Americans with Disabilities Act (ADA), but under the ADA normal pregnancy does not qualify as a “disability” triggering an employer’s duty to provide reasonable accommodations. In 2014, the U.S. Supreme Court held that employers that provide accommodations to non-pregnant employees must provide pregnant employees similar accommodations. However, until now, there has been no free-standing requirement for employers to accommodate an employee’s pregnancy.

Is Your Website a Place of Public Accommodation under the ADA? The Plaintiffs’ Bar Says “Yes,” the Circuits Are Split, and the DOJ Is Unlikely to Provide Guidance Any Time Soon

JD Supra

What do glasses retailer Warby Parker Retail, Inc., delivery service Grubhub, pizza company Domino’s and media streaming giant Netflix have in common, besides having significant online services? The answer is that they have all been recent targets of lawsuits based upon the Americans with Disabilities Act (“ADA”) for allegedly not having ADA-compliant websites. In recent months, the number of ADA lawsuits against companies based upon their websites has increased exponentially. Targets include everything from large publicly traded companies to boutique retailers and mom-and-pop shops. This issue is not new. However, due to the burgeoning use of the internet and related technologies, the responsibility of companies to accommodate disabled individuals using their websites has become a prevalent issue. Companies using the internet to conduct business are facing an increasing risk of lawsuits regarding website accessibility.

United States: New Florida Law Aims To Put Brakes On ADA Barrier-To-Access Lawsuits

Mondaq News Alerts

Responding to the alarming proliferation of lawsuits in Florida alleging that places of public accommodations create barriers to access to disabled patrons, Florida has adopted what appears to be the first law in the country attempting to provide some defense to beleaguered businesses.

The law authorizes qualified experts to inspect places of public accommodation for American with Disabilities Act-compliance purposes and issue a certificate of conformity or develop a remediation plan for the owners. The owners would file the certificate or plan with the Department of Business and Professional Regulation, which would serve as notice to the public of compliance with the ADA.

Civil Rights Education and Enforcement Center v. Hospitality Properties Trust

The Recorder

This case presents two questions of constitutional standing to assert claims under Title III of the Americans with Disabilities Act ("ADA"), and the question of whether those claims are maintainable as a class action. We must decide (1) whether a plaintiff may rely on the "deterrent effect doctrine" to establish constitutional standing under the ADA where she lacks firsthand knowledge that an establishment is not in ADA compliance; and (2) whether a plaintiff has constitutional standing where her only motivation for visiting a facility is to test it for ADA compliance. We conclude that standing may be asserted in both circumstances. However, although plaintiffs have standing to maintain this ADA suit, the district court did not abuse its discretion in denying class certification. The court did not err in finding that the plaintiffs failed to meet Rule 23's commonality requirement, given the lack of consistent policies or practices across the hotels owned by defendant Hospitality Properties Trust ("HPT"), but operated by others.

Responding To Violence In the Workplace – A “Catch 22” For Employers

JD Supra

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.

In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.

After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.

In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.

What should employers do?

Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.

Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:

  • Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
  • Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
  • Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
  • Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
  • Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?

United States: Sued by an ADA Serial Litigant in Nevada? Help May Be On the Way!

Mondaq News Alerts

On August 8, 2017, the Nevada attorney general moved to intervene in an action brought by Americans with Disabilities Act (ADA) serial litigant Kevin Zimmerman and to consolidate it with the more than 150 other pending Zimmerman actions in the U.S. District Court for the District of Nevada. The attorney general cited the state's "strong interest in protecting the public interest from malicious or premature lawsuits that threaten Nevada businesses [sic] owners and adversely impact Nevada's general economy." 

In 2017 alone, Zimmerman and his counsel, Whitney Wilcher, have filed more than 250 Title III "drive-by" actions against businesses in and around Las Vegas. Presumably, the Nevada attorney general will next move to seek dismissal of the more than 150 remaining actions by Zimmerman and/or his counsel in all of these actions on the grounds that the complaints are "malicious or, at best, premature and poorly drafted."

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