ADA in the News: August 24, 2016

EEOC Sues Wayne Farms for Disability Discrimination

Wayne Farms, LLC, one of the nation's largest poultry producers, illegally discriminated against a class of employees because of their disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on August 18, 2016.

In its suit, EEOC charged that Wayne Farms violated the rights of a class of workers with disabilities by maintaining an inflexible attendance policy. The policy capped the number of allowable employee absences in a manner that made little to no allowance for disability-related absences. For example, the suit said that an employee, Latonya Hodges, provided medical excuses for absences related to her asthma, yet was fired upon reaching the maximum number of allowable absences.

Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA), which mandates that private employers provide reasonable accommodations to persons with disabilities, absent undue hardship, and prohibits employers from discriminating against qualified individuals with disabil­ities.

EEOC filed its lawsuit against Wayne Farms, EEOC v. Wayne Farms, LLC, Case No. 5:16-cv-01347-HGD, in U.S. District Court for the Northern District of Alabama after first attempting to reach a pre-litigation settlement through its conciliation process.  EEOC seeks a court order requiring Wayne Farms to comply with the ADA and barring the company from applying its attendance policy to disabled employees who require additional medical leave as a reasonable accommodation. In addition, EEOC seeks lost wages and benefits, compensatory and punitive damages, and other relief for victims and the public.

"The ADA requires that employers provide reasonable accommodations, including time off, to workers with disabilities," said Delner-Franklin Thomas, district director of EEOC's Birmingham District Office, which has jurisdiction over Alabama, portions of Mississippi and Florida. "Attendance policies that categorically limit an employee's absences, without consideration of the individual circumstances of disabled employees, can run afoul of federal law."

EEOC Birmingham Regional Attorney C. Emanuel Smith added, "The goal of the ADA is to lower barriers to employment faced by persons with disabilities. EEOC will continue to take action against companies that arbitrarily refuse to provide reasonable accommodation and, in the process, deprive persons with disabilities of the opportunity to provide for their families."

According to company information, Wayne Farms, LLC is one of the largest vertically integrated poultry producers in the United States, owning and operating 11 facilities throughout the Southeast, including Alabama, Arkansas, North Carolina, Mississippi and Georgia.

One of the six national priorities identified by EEOC's Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA.

EEOC Issues New Medical Leave Guidance

The National Law Review

Medical leaves of absence remain among the thorniest issues facing employers. A number of factors, not the least of which is the size of an organization, may mean that an employer must simultaneously comply with leave-related obligations under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), state workers’ compensation laws, and other federal, state, and local regulations. 

For example, the FMLA may require an employer with 50 or more employees to grant an employee with a serious health condition up to 12 weeks of leave. At the same time, the ADA requires an employer with 15 or more employees to provide accommodations (which may include leave) to employees with disabilities, unless the employer can show that to do so would cause the employer undue hardship. Such accommodation may be required under state law regardless of the number of employees employed by the employer. And if an employee’s medical condition is the result of a workplace injury, then the employer may have additional leave obligations under state workers’ compensation laws.

To reduce confusion and help employers navigate these overlapping requirements, the Equal Employment Opportunity Commission (EEOC) has issued new guidance regarding the rights of employees who seek leave as an accommodation under the ADA. Although not charting new legal territory, the guidance reiterates the EEOC’s longstanding position that an employer must provide unpaid leave to a disabled employee, even if doing so falls outside of the employer’s existing leave policies (e.g., FMLA leave, personal leave, and non-FMLA medical leave), as long as doing so does not create an undue hardship for the employer. This obligation exists even where the employee is not eligible for or already has exhausted leave provided under these policies.

Department of Justice sues Georgia over GNETS program

Brunswick News

The United States Department of Justice filed a lawsuit Tuesday against the state of Georgia for operating a program it says provides thousands of Georgia students with unequal educational opportunities.

The lawsuit alleges that, through the state’s operation of the Georgia Network for Educational and Therapeutic Supports Program, students with emotional and behavior-related disabilities and students with autism have been segregated in a violation of the Americans with Disabilities Act.

The DOJ claims in the lawsuit that through the Georgia Network for Educational and Therapeutic Support (“GNETS”) Program, the state department of education “discriminates against thousands of public school students with behavior-related disabilities by unnecessarily segregating them, or by placing them at serious risk of such segregation, in a separate and unequal educational program ... which is financed, operated, and administered by the State.”

Stop the Stigma, and Repeat After Me: “I have a disability and these are the accommodations I need”

Lexology

As Rosemarie Garland Thomson wrote in the NYT this Sunday, “this is a claim to inclusion and right to access resources.”

You’ve heard me say this before (like, here), that one in four adults in the U.S. suffer from some type of mental disability, and that number is even higher for people with physical and mental impairments. So, chances are, a good percentage of those sitting in your meeting are working with a disability.

And suffering in silence.

That shouldn’t be, argues Ms. Garland Thomson, because most of us become disabled through illness, injury, or accident. “Becoming disabled” is difficult enough, and, to add insult to injury, one recent study states that nearly 85% of people say they’re uncomfortable discussing mental illness at work.

Hearing-Impaired Accommodations Required by Hospitality Industry

Lexology

Title III of the Americans with Disabilities Act (ADA) gives rights of equal access to places of public accommodation. For people who are deaf or hard of hearing, Title III requires businesses to remove barriers to communication. Restaurants and other hospitality providers are required to provide "auxiliary aids and services" to assist any class of individuals with disabilities, in order for them to "fully and equally" enjoy any goods, services, or facilities offered by the hospitality provider so that effective communication can be achieved. What constitutes an "auxiliary" aid or service to a deaf or hearing-impaired individual is being scrutinized in recent discrimination lawsuits brought by deaf or hearing-impaired plaintiffs. As such litigation unfolds, restaurants and other hospitality providers should be aware of the accommodations they are obligated to provide to their guests, and should review their current policies and procedures to ensure compliance with the ADA requirements. A public accommodation may deny an auxiliary aid only if it can demonstrate that providing the aid would fundamentally alter the nature of the service, or would constitute an undue burden or expense.

Carolina Beach looks to expand accessibility to the beach

Port City Daily

Following the first season of making WaterWheels available to visitors, the Carolina Beach Parks and Recreation Department is looking to increase the accessibility of the beach even more.

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