Employee who quit when threatened with reduced hours following maternity leave not constructively discharged
A pharmacy technician who voluntarily resigned after her manager proposed reducing her work schedule in anticipation of her return from pregnancy leave failed to defeat summary judgment on her Title VII claims of pregnancy bias and retaliation since she didn't suffer an adverse employment action as a matter of law. A federal district court in Illinois rejected her contention that she was constructively discharged since she quit before the reduction in hours and pay occurred and her additional allegations that her manager once told her that "working with kids would not work out" and suggested that she would need to breast-pump during her 15-minutes breaks didn't create an environment so intolerable that she had no choice but to quit. (Kaniewski v Roundy's Illinois, LLC, NDIll, August 5, 2019, Kendall, V.)
In Taylor v. Burlington Northern Santa Fe Railway Company, the Washington Supreme Court recently held that obesity is always an "impairment" under the Washington Law Against Discrimination ("WLAD"). The court held that the WLAD is more expansive than the Americans with Disabilities Act and expressly refused to follow some federal court decisions that found obesity to be a disability only if it is caused by a separate underlying physiological disorder.
According to the EEOC's lawsuit, Blood Bank of Hawaii did not provide employees with disabilities leave beyond the required 12-weeks of leave under the Family and Medical Leave Act (FMLA) and required employees to return to work without limitation at the end of their medical leave. The company also fired employees who had either exhausted their medical leave or were unable to return to work without restrictions.
Such conduct violates the Americans with Disabilities Act (ADA) which prohibits employers from discriminating against employees with disabilities. The EEOC filed suit in the U.S. District Court of Hawaii (U.S. EEOC v. Blood Bank of Hawaii, Case No. 1:17-cv-00444-HG-WRP) after first attempting to reach a pre-litigation agreement through its voluntary conciliation process.
In addition to the $175,000, the Blood Bank of Hawaii agreed to put in place measures to prevent discrimination within the workplace. This includes retaining an EEO consultant, designating an in-house ADA coordinator, revising the current ADA policy and distributing it to all employees. The company also agreed to training and the development an internal log for all ADA accommodation requests. The court will maintain jurisdiction for the term of the two-year consent decree.
"We continue to see employers not properly engaging in the interactive process," said Anna Park, regional attorney for the EEOC's Los Angeles District, which includes Hawaii in its jurisdiction. "We commend Blood Bank of Hawaii for choosing to resolve this complaint and for putting in place measures that will benefit all employees in the workplace."
Glory Gervacio Saure, director of the EEOC's Honolulu Local Office, said, "This resolution will send a message throughout the state of Hawaii that employers need to be aware of their obligations under the ADA. We are pleased Blood Bank of Hawaii has taken steps to make meaningful changes to their policies."
Employee terminated after requesting time off to tend to asthmatic son could proceed with FMLA claims
A casino worker who was fired after she both requested time off to care for her, son who was suffering from an asthmatic episode, and made an inappropriate Facebook post about taking time off, could proceed with her FMLA interference and retaliation claims, ruled a federal district court in Maryland. The court denied the casino's summary judgment motion, finding it disputed whether the employee gave adequate notice of her intent to take FMLA leave, and whether the casino fired her for taking time off or for other reasons. ( Smith v Caesars Baltimore Management Company, LLC, DMd, August 9, 2019, Hollander, E.)
Wal-Mart Stores East, LP Will Pay $100,000 to Settle EEOC Disability Discrimination Suit
The EEOC charged that Wal-Mart Stores East, LP refused to provide communications accommodations, such as access to sign language interpreters and closed-captioned training videos, to two deaf employees who worked at Walmart Store No. 5941 in Northwest Washington, D.C. The employees were entitled to reasonable accommodations so they could obtain information from, and participate in, meetings, trainings and other workplace communications, the EEOC said.
The Americans with Disabilities Act (ADA) prohibits workplace discrimination based on an individual's disability. The ADA requires employers to provide a reasonable accommodation to individuals with disabilities unless it would pose an undue hardship. The EEOC filed suit (EEOC v. Wal-Mart Stores East, LP, Civil Action No. 1:18-cv-2799) in U.S. District Court for the District of Columbia, after first attempting to reach a voluntary, pre-litigation settlement through its conciliation process.
In addition to paying $100,000 in monetary relief, the two-year consent decree resolving the suit enjoins Walmart Store No. 5941 from violating the ADA, including engaging in unlawful retaliation. Walmart Store No. 5941 has also agreed to revise its reasonable accommodations Management Guidelines, provide live training to management employees on the ADA's reasonable accommodations requirements, and address issues related to deaf or hard-of-hearing persons, and provide training to all non-management employees on the ADA and the process for requesting a reasonable accommodation. Walmart Store No. 5941 will also post a notice about the settlement and report to the EEOC about its compliance with the consent decree.
In obedience to the dictates of our digital lifestyles, every mom and pop business is jumping onto the digital bandwagon to set up a web presence. They’ve been led to believe that their small business website will bring in more customers and increase their profits – but they don’t know that it could also open the gates for a very costly lawsuit. The last few years have seen a notable rise in website accessibility lawsuits, particularly against small businesses.
Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disabilities and requires covered "places of public accommodation and commercial facilities to be designed, constructed, and altered" in compliance with certain accessibility standards.1 Although the ADA passed in 1991 when the worldwide web was in its infancy, whether or not websites are themselves "places of public accommodation" subject to the ADA has never been conclusively determined.
After an 18 month hiatus, ADA accessibility lawsuits are once again being filed in Arizona’s federal courts. Unlike previous ADA lawsuits (which focused on physical barriers to accessibility), this new wave of lawsuits alleges that business websites and mobile apps are not accessible to those with hearing and/or visual impairments.
Here are five things that every business owner should know.
1. What is the ADA and who does it apply to?
The ADA is a federal law that was enacted in 1990. It requires all places of “public accommodation” to be accessible to individuals with disabilities. Public accommodations are businesses that are generally open to the public and include places like restaurants, movie theaters, schools, office buildings, recreation facilities, etc.
2. Is a business’s website required to comply with the ADA?
It depends. Because the ADA was drafted (and enacted) before the internet was prevalent, federal courts across the U.S. have inconsistently applied the ADA to business websites and mobile apps. The Ninth Circuit (which covers Arizona) recently ruled, however, that to be covered by the ADA, a website or mobile app must have a “nexus to a physical place of public accommodation.” For example, Netflix’s website is arguably not required to comply with the ADA because it is entirely an online business while Target’s website may be subject to ADA accessibility requirements because it has a nexus to Target’s physical store locations.
3. What about Arizona’s recent law that forces a disabled plaintiff to give notice before filing an ADA lawsuit?
That law only applies to claims that are brought under the Arizonans with Disabilities Act (i.e., not the ADA, a federal law). An Arizona legislature cannot enact a law that restricts a federal law.
4. How do you know if your website is ADA compliant?
This is a frustrating question. In 2010 the Department of Justice (DOJ) announced that they would be establishing standards for website compliance. Nine years later and the DOJ still has not provided any guidance. This means that courts, businesses, and plaintiffs are left to determine whether a website or mobile app is accessible to a person with disabilities. Many courts are holding that a website or mobile app is accessible if it complies with the Web Content Accessibility Guidelines (WCAG 2.0). The WCAG 2.0 are accessibility standards developed by an international organization called the World Wide Web Consortium (W3C).
5. What remedies may ADA plaintiffs seek?
A prevailing ADA plaintiff is entitled to injunctive relief (which is an order from the court instructing a business to make its website and/or mobile app ADA compliant) and may be awarded his/her reasonable attorneys’ fees and costs. ADA plaintiffs are not entitled to private monetary damages.
Recent Class Action Lawsuit Involving Yale University’s Wellness Program Is A Cautionary Tale For Employers
There is an increasing trend in legal challenges to an employer’s administration of a wellness program and whether that program violates the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Both the ADA and GINA allow for employers to conduct wellness programs and collect certain information as long as the programs are voluntary.
In an issue of first impression in the Seventh Circuit, the Court of Appeals upheld summary judgment in favor of the employer dismissing the Plaintiff’s claim that obesity qualified as a disability under the Americans with Disabilities Act (“ADA”). Richardson v. Chicago Transit Authority. Plaintiff, a former Chicago Transit Authority (“CTA”) bus operator, alleged that CTA violated the ADA when it refused to allow Plaintiff to return to work after a flu-related absence because it regarded him as too obese to operate a bus. Plaintiff, who weighed over 400 pounds, was transferred to a Temporary Medical Disability Area designated for employees found medically unfit to work. Following a driving performance test, CTA concluded it would be unsafe for Plaintiff to operate a CTA bus. He remained in the temporary area for two years and was discharged after he failed to submit medical documentation to extend his time in the temporary area.
Plaintiff alleged that his extreme obesity met the definition of a “physical impairment” thereby constituting a disability under the ADA. However, the appellate court sided with several other Circuit and District courts, finding that “obesity is an ADA impairment only if it is the result of an underlying physiological disorder or condition.” Plaintiff failed to present any evidence proving an underlying physiological disorder or condition caused his extreme obesity. Accordingly, the Seventh Circuit grant Defendant’s motion for summary judgment and dismissed the case.
Although the Seventh Circuit joins three other federal appeals courts in holding that obesity alone does not constitute a physical impairment under the ADA, the issue remains unsettled in other jurisdictions and under state and local laws.