ADA in the News August 23, 2019

Oklahoma Burger King Franchise to Pay $30,000 to Settle Disability Discrimination Lawsuit

The EEOC filed suit in July 2018 alleging the defendants, Houston-based fuel retailer Northwest Petroleum, LP and Burger King franchisee Travis County Investments, LP (collectively referred to here as NWP) withdrew a job offer from an applicant who sought employment as a dining room and bath­room attendant. The applicant was accompanied to his job interview by a representative from Commu­nity Access Inc. (CAI), an organization which provides services to Oklahomans with intellectual and developmental disabilities, but when he requested that a job coach provide onsite support at no cost to NWP, the company withdrew the job offer.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination in hiring based on an individual's disability or need for a reasonable accommodation - such as a job coach - to perform the job. The EEOC filed its lawsuit (EEOC v. Northwest Petroleum, LP and Travis County Investments, LP, Civil Action No. 18-cv-703-PRW) in U.S. District Court for the Western District of Oklahoma after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to monetary relief to the applicant, the three-year consent decree settling the suit, entered by federal District Judge Patrick R. Wyrick on August 21, 2019, enjoins NWP from future violations of the ADA. NWP is further ordered to train its human resources manager and hiring managers in all locations on its newly updated reasonable accommodations process and recognizing individuals' needs for accommodation under the ADA. The company is also required to regularly report to the EEOC all accommodation requests and will utilize services from the Job Accommodation Network (JAN), a free resource provided by the U.S. Department of Labor's Office of Disability Employment Policy.

Christus St. Vincent Sued by EEOC for Disability Discrimination

According to the EEOC's lawsuit, Asheley Coriz's supervisor repeatedly harassed her during training by repeatedly yelling at her, "I've already told you how to do that once." Rather than addressing her training requests, Christus St. Vincent fired her because of her disability and her requests for accom­modation, blaming her instead for supposedly not getting trained fast enough. Coriz was also fired in retaliation for her opposing the disability discrimination, the EEOC said. 

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrim­ination based on disability, as well as retaliation for reporting the discriminatory workplace conduct. The ADA also requires employers to attempt to provide reasonable accommodations for employees with disabilities, absent undue hardship. 

The EEOC filed suit, EEOC v Christus Health d/b/a Christus St. Vincent Regional Medical Center,    Civil Action No. 1:19-cv-00764 in U.S. District Court for the District of New Mexico after first attempt­ing to reach a settlement through its pre-litigation conciliation process. The lawsuit seeks back pay, compensa­tory damages and punitive damages for the charging party as well as appropriate injunctive relief to prevent discriminatory practices in the future.

EEOC: Firing a worker for taking leave to treat opioid addiction is disability discrimination

Dive Brief:

  • SoftPro, a software company headquartered in Raleigh, North Carolina, has agreed to pay $80,000 to settle a U.S. Equal Employment Opportunity Commission (EEOC) disability discrimination lawsuit after allegedly firing an employee for taking leave for inpatient treatment regarding substance abuse.
  • The EEOC said that, when an IT worker with a history of opiate addiction who participated in a doctor-supervised medication-assisted treatment (MAT) took leave to admit himself to an inpatient treatment facility to eliminate the need for MAT, he was questioned about the reason for the leave upon his return and then fired. The worker’s employment was terminated because he was regarded as disabled — a violation of the Americans with Disabilities Act (ADA), the EEOC says.
  • Under the three-year consent decree settling the lawsuit, SoftPro also agreed to revise, implement and distribute personnel policies stating that the company does not exclude employees based on their participation in a medication-assisted treatment program; to provide annual training to its HR team, managers, supervisors and employees; to post a notice regarding the settlement; and to report to the EEOC all negative actions the company takes against employees who have a record of substance abuse disorder or who are currently participating in or have successfully completed a drug rehabilitation program.

Dive Insight:

The "regarded as" element of the ADA's definition of disability protects an individual from discrimination based on an employer's belief that he or she has a disability. Establishing protection under that prong is based on "how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment," according to the EEOC.

Opioid abuse costs employers billions in lost productivity. A survey by The Hartford found that 76% of employers and 64% of HR professionals aren't trained on how to deal with opioid addiction in the workplace.

Employers may gain insight as to the extent of opioid abuse in their workplaces by conducting claims analyses, according to a report from the International Foundation of Employee Benefit Plans, but only 30% of respondents reported having done so. Among those who had, 3% reported a significant increase in opioid-related claims from the year before, and 8% reported such a change over the past five years.

In dealing with recruitment and retention issues stemming from drug use, employers are adopting innovative solutions, such as seeking out employees with criminal records who are required to refrain from drug use as a condition of their parole or offering drug treatment to applicants who fail an initial screen. As more states legalize or decriminalize marijuana, some employers are reviewing whether to relax their zero-tolerance policies.

The National Business Group on Health has urged employers to communicate with their pharmacy benefit managers to ensure that strategies are put into place to better protect U.S. workplaces from the opioid crisis. More than half of businesses (51%) said they are using a prescription drug monitoring program or a pharmacy benefit manager to reduce the growing number of claims. Twenty-six percent are limiting the number of pain pills given out to post-surgery patients, and the same percentage are offering alternative pain management treatments.

Ninth Circuit Punts On Whether Obesity Is A Disability Under the ADA

The U.S. Court of Appeals for the Ninth Circuit has sidestepped the issue of whether obesity is an actionable “impairment” under the Americans with Disabilities Act (ADA). It’s a question that has been in the spotlight recently, after the Seventh Circuit agreed with the Second, Sixth, and Eighth Circuits in holding that obesity is not an actionable impairment under the ADA unless it is caused by an underlying physiological disorder or condition.

Rather than “take a definitive stand” on the issue, the Ninth Circuit decided the case before it on causation grounds. In Valtierra v. Medtronic, Inc., the Ninth Circuit upheld the district court’s grant of summary judgment in favor of the defendant employer. The plaintiff, a former maintenance technician, weighed more than 300 pounds at the time of his hiring, and weighed more than 370 pounds when his employment ended.

The plaintiff was terminated by his employer when it was discovered that he had intentionally falsified maintenance records to show that he had completed certain maintenance tasks prior to leaving on vacation. The plaintiff admitted that he had not actually completed the tasks, but said that he planned to do so when he returned from vacation. The plaintiff alleged that his obesity qualified as a disability under the ADA, and that his termination was the result of discrimination.

The district court granted summary judgment in favor of the employer, holding that “obesity, no matter how great, cannot constitute a disability under the applicable EEOC regulations unless the obesity is caused by an underlying physiological condition.” According to the district court, the plaintiff could not make the showing, and granted summary judgment.

The Ninth Circuit, on the other hand, chose not to confront the question of whether obesity in and of itself qualifies as an actionable “impairment” under the ADA, as its four sister circuits have. Instead, the court determined that the plaintiff had failed to show a causal relationship between his obesity (or his “disabling knee condition”) and his termination. The plaintiff admitted that he had not completed the maintenance tasks, and he had already been employed for more than 10 years, always weighing in excess of 300 pounds. Thus, according to the Ninth Circuit, there was no basis to conclude he was terminated for any reason other than the falsified maintenance records.

Employers in the Ninth Circuit defending an ADA claim relating to an employee’s obesity will have to wait for a “definitive stand” on whether obesity alone qualifies as an impairment under the ADA. That said, the Valtierra case serves as a helpful reminder that ADA claims require evidence of a causal relationship between an adverse employment action and a purported disability.

United States: Website Accessibility Lawsuits Abound

Website accessibility lawsuits (i.e., lawsuits alleging discrimination on the basis that websites contain access barriers that limit navigation for disabled people) increased 177% percent from 2017 to 2018 alone. These website accessibility lawsuits have been brought under Title III of the Americans with Disabilities Act ("ADA"), which prohibits discrimination on the basis of a disability "in the full and equal enjoyment of the goods [and] services . . . of any place of public accommodation." The Department of Justice ("DOJ") has recently affirmed its position that websites are places of public accommodation. On the litigation front, there is a split of opinion among federal courts as to whether a website alone (i.e., one not connected to a brick-and-mortar store) is a place of public accommodation. Notwithstanding the foregoing, regardless of where a company is located, all entities with an online presence should build/review their websites with an eye directed towards ADA compliance.

Here’s what the law says about service animals and their handlers

Under the Americans with Disabilities Act, a service animal is “a guide dog, signal dog, or other animal that is individually trained to do work or perform tasks for people with disabilities.”

Under the ADA’s rules, if the service animals meets this definition, it is irrelevant if the animal is licensed or certified by the state or local government.

It is illegal to be denied access to hotels, restaurants, airports and other public accommodations because of the use of a service animal.

If landlords attempt to tack on extra fees because of a service animal, they are breaking the law.

Service animals are not considered pets as they perform important jobs for the people they work with such as alerting to sound, pulling wheelchairs, picking things up and more.

There are two questions that someone is legally allowed to ask if questioning whether or not an animal is a service animal:

Is the animal service animal required because of a disability?

What work task has the animal been trained to perform?

While those questions are allowed, it is not required of the service animal’s handler to answer questions about their specific disability, provide medical or training documentation, or show a special ID card. It is also illegal to insist that the service animal demonstrates its abilities.

Service animals are allowed anywhere that their owners are as long as they are harnessed, leashed, or tethered. They all must be well-behaved and housebroken.

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