ADA in the News: August 28, 2017

Lawyer says many companies unaware of Americans with Disabilities Act website requirements

Florida Record

Though closed captioning, text to speech and sticky keys are not issues the average internet user worries about, they are for the visually impaired, which is why a group has claimed that Grubhub's website is not compliant with the Americans with Disabilities Act (ADA).

The case, which was filed by Open Access for All Inc. on August 16 in the U.S. District Court for the Southern District of Florida, alleges that the online takeout delivery service's website does not include aids for the visually impaired.

Why You Should Care About Web Accessibility Standards

Business 2 Community

ADA compliance, specifically as it relates to the web, is a bit of a misnomer. ADA refers to the Americans with Disabilities Act of 1990, which is an American civil rights law prohibiting discrimination based on disability. It is a piece of legislation that reaches far beyond the web and into the design of physical objects and facilities as well. The more accurate language to describe what we are talking about is “web accessibility,” which generally refers to the degree to which a website complies with an established set of standards and guidelines. There are two main sets of guidelines to pay attention to: WCAG 2.0 and Section 503. Unless you are a government agency, you should focus specifically on WCAG 2.0.

WCAG 2.0 is a set of standards created and maintained by an international standards organization called the World Wide Web Consortium (W3C). While their organization is focused on standards much broader than accessibility, they are the group responsible for defining the recommendations and requirements for web accessibility compliance.

KB Staffing Settles Disability Discrimination Suit

KB Staffing LLC, a staffing firm servicing central Florida, will create a class damages fund and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. The EEOC had charged that the company made unlawful pre-offer health inquiries of applicants in violation of federal law.

According to EEOC's lawsuit, from 2011 to 2013, KB Staffing asked all applicants to complete a paper application package with a detailed medical questionnaire before the company offered the applicant a position or placement. The suit further alleged that although KB Staffing represented that it changed its process in 2013, it still required applicants to complete a medical questionnaire prior to any job offer in some instances after that date. The medical questionnaires asked for sensitive health information and included numerous disability-related questions.

Last week the court approved a consent decree resolving the case in which KB Staffing agreed to provide a $22,500 class fund, representing compensatory and punitive damages, designed to compensate applicants who were forced to disclose their sensitive medical and disability-related information in the application process. The three-year decree requires the company to affirmatively recruit individuals with disabilities, adopt and distribute a policy regarding disability discrimination, and train its management on the ADA's prohibition against disability discrimination, including its requirements regarding medical examinations and screenings. KB Staffing must certify each year that it has not made disability-related inquiries which are not consistent with business necessity and that it has maintained the confidentiality of its employees' medical information. The company must also report detailed information concerning any disability discrimination complaints and post a notice concerning the lawsuit.

This resolution closely follows several court orders entered in the EEOC's favor in this case, which includes an order permitting the EEOC to file an amended complaint. The court recognized that applicants who completed the intrusive pre-offer medical questionnaire could be awarded damages in the absence of being denied employment. The court explained the damages suffered by the class, saying "[i]t is reasonable to infer that emotional or other damages may have been caused by the embarrassment or distress of answering the specific question alleged in the proposed Amended Complaint regarding private and/or sensitive medical information, which include questions about mental health conditions and/or treatment, or disabilities." The amended complaint was filed on Aug. 10.

"Congress recognized that prohibiting pre-offer medical inquiries was necessary to prevent applicants from being subjected to harmful and unfounded stereotypes on the basis of an actual or perceived disability," said EEOC Regional Attorney Robert Weisberg. "As staffing agencies now play a large role in our nation's workforce, eliminating any discrimination in their screening practices is increasingly important to ensuring that workers with disabilities have equal access to work opportu­nities."

EEOC Tampa Field Director Evangeline Hawthorne added, "As a result of this resolution, applicants in Central Florida should have less concern that their employer will improperly collect and potentially use sensitive and private medical information, unfairly excluding them from jobs they can readily perform with or without accommodation."

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC's Strategic Enforcement Plan (SEP). These barriers can include exclusionary policies and practices, restrictive application processes, and the use of screening tools such as pre-employment tests, background checks and medical questionnaires.

South Florida businesses, get ready for a wave of website-accessibility lawsuits

Miami Herald

At this point, most South Florida businesses are aware that Title III of the Americans with Disabilities Act (ADA) requires public accommodations (e.g., retailer, bank, hotel, restaurant, hospital, theater, stadium, golf course) to ensure that their goods and services are accessible to individuals with disabilities.

But they also should be mindful that the ADA, traditionally applied to brick-and-mortar locations, has been interpreted to extend to websites of public accommodations — and the debate over mobile applications is underway.

The recent opinion in Gil v. Winn-Dixie, No. 16-23020-civ-Scola, issued in our backyard (Southern District of Florida), is the first time that a federal court has held that a public accommodation’s website was inaccessible to individuals with disabilities — because it did not meet guidance. There are no enforceable website accessibility regulations.

Regulations were anticipated from the U.S. Department of Justice in 2018 (after several delays), but they now have been placed on hold indefinitely. Furthermore, the opinion has sparked attention because it suggests that a business is responsible to ensure that a third party website (e.g., partner, vendor, sponsor) linked to its site, is likewise accessible.

EEOC Ordered to Reconsider What “Voluntary” Means for its Wellness Program Guidance

JD Supra

The long-running efforts of the Equal Employment Opportunity Commission to provide guidance on what constitutes a “voluntary” wellness program were called into question by the U.S. District Court for the District of Columbia, in the case A.A.R.P. vs. U.S. E.E.O.C.

As discussed in our previous blog post, in May 2016 the EEOC finalized its regulations on employer-sponsored wellness programs. A primary focus of those regulations was to define what made a wellness program “voluntary” as opposed to mandatory. That distinction is important because the Americans with Disabilities Act (ADA) and other federal law provides that an employer may conduct medical examinations and collect employee medical history as part of an employee health program, as long as the employee’s participation in the program is “voluntary.” Thus, to avoid certain prohibitions under the ADA, an employer’s wellness program must meet the standards for a voluntary program.

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