ADA in the News August 30, 2019

Ninth Circuit Clarifies The Interactive Process Does Not Apply To Public Accommodations Under Title III

The United States Court of Appeals for the Ninth Circuit recently confirmed in Tauscher v. Phoenix Board of Realtors, Inc. that while employers must engage in an “interactive process” with disabled employees to explore possible accommodations, there is no interactive process requirement for public accommodations and services. By the same token, businesses and entities providing public accommodations cannot discharge the duties they owe to disabled patrons because of a failure to engage in the interactive process.

Title III of the ADA provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. (42 U.S.C. § 12182(a).) A public accommodation must furnish “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” (28 C.F.R. § 36.303(c)(1).) While “[a] public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication,” the regulations make clear that “the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.” (Id. § 36.303(c)(1)(ii).)

A public accommodation is relieved of this obligation only if it “can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.” (Id. § 36.303(a).)

The Tauscher case involved a profoundly deaf, licensed real estate salesman, Mark Tauscher. Tauscher could not hear sounds that were less than 90 decibels loud, which is about as loud as a lawnmower. He could not hear in conversational settings, lip read to understand speech, or effectively communicate with others through spoken words. Tauscher’s primary and best form of communication was American Sign Language (ASL).

Tauscher registered for a continuing education class hosted by the Phoenix Association of Realtors (PAR), a trade association for real estate professionals who sell real estate in Phoenix. About five months before the course, Tauscher requested that PAR provide an ASL interpreter for the course. PAR denied the request for an ASL interpreter on the grounds that providing one would be too expensive and an undue burden. Instead, PAR recommended a host of other measures, including: (1) use of a FM Loop system to amplify sound; (2) using lip reading and making the instructor available for questions; (3) bringing in another real estate agent to sign for him; and (4) taking online courses. Tauscher rejected all of these recommended measures and got a refund on his registration fee for the course.

Tauscher subsequently brought suit against PAR, asserting that PAR violated the ADA and the Arizonians with Disabilities Act. On PAR’s summary judgment motion, the lower court held that PAR satisfied its duty to Tauscher under the ADA because PAR engaged in dialogue with him regarding his request for an ASL interpreter and he refused to discuss any other potential measures.

The Ninth Circuit reversed the decision and remanded the case back to the lower court.

The Ninth Circuit found that it remained an open question whether PAR offered Tauscher a means of communications that was effective. It was undisputed that the FM Loop system was not loud enough for Tauscher to use. However, it was unclear whether PAR offered to provide a captioning system and whether Tauscher could have relied on lip reading. Additionally, the Ninth Circuit affirmed that at least two of the proposed measures were not an effective means of communication as a matter of law. PAR’s suggestion that Tauscher bring a friend to sign for him was inadequate to satisfy PAR’s duty because the federal regulations expressly provide that a public accommodation may not require disabled individuals to provide their own interpreter. (See 28 C.F.R. § 36.303(c)(2).) Further, PAR’s recommendation that Tauscher take an online course was also inadequate because the regulations provide that disabled individuals should not be “segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” (See id. § 36.303(a).)

Notably, the Court rejected PAR’s argument that it had satisfied its burden under the ADA because Tauscher refused to engage in a discussion about alternative auxiliary aids other than an ASL interpreter. The Court recognized that in the employment context, a covered employer generally must provide a reasonable accommodation for an otherwise qualified employee or applicant with a disability, if such an accommodation is requested. In order to identify an appropriate reasonable accommodation, the employer generally must “initiate an informal, interactive process with the individual with a disability in need of the accommodation.” (29 C.F.R. § 1630.2) The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process.

Outside of the employment context, the ADA does not impose an interactive process requirement on public accommodations and services. Although the regulations suggest that a public accommodation “should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication,” the public accommodation itself is independently responsible for making the “ultimate decision as to what measures to take.” (28 C.F.R. § 36.303(c)(1)(ii).) As such, PAR was not discharged of its obligation to ensure effective communication merely because Tauscher did not engage in further discussion with PAR regarding measures other than an ASL interpreter.

Lastly, the Court concluded that whether providing an ASL interpreter would impose an undue burden on PAR remained an opened issue better suited for determination by the lower court.

The Tauscher decision serves as an important reminder that the duties businesses owe to their disabled employees and customers are not coextensive. Generally, most employers are places of public accommodation, and, as such, employers must accommodate their own disabled employees and also ensure accessibility of their business to customers with disabilities. Businesses operating a place of public accommodation must remain mindful that in addition to providing compliant facilities, they have many other obligations under the ADA, including providing auxiliary aids, allowing the use of service animals, and ADA-compliant website design.

Additionally, the Tauscher decision clarifies that the interactive process is a Title I, not Title III requirement under the ADA. However, businesses should still strive to engage with disabled customers or patrons to determine what measures will allow accessibility. Otherwise, businesses may hamper their own ability to promptly identify effective measures to satisfy their duty under the ADA. Businesses need to keep in mind that if discussions with a disabled customer regarding auxiliary aids/services should break down, businesses are still obligated to ensure effective communication, unless doing so imposes an undue burden.

Company Could Retract Telework Accommodation After Merger

An American Airlines employee allowed to work from home in Chicago for more than 10 years to accommodate her multiple sclerosis (MS) could be required to work onsite in Dallas after American Airlines merged with US Airways, the 7th U.S. Circuit Court of Appeals held.

The plaintiff worked for American Airlines for more than 20 years. She served in several positions, taking on a role in 2007 as a communications specialist in the flight service department, which was located in Dallas at the company's headquarters.

In the late 1990s, the plaintiff's MS was diagnosed. It was aggravated by excessive heat, causing her discomfort and reduced functioning. As a result, American Airlines provided her with a work-from-home arrangement (WFHA), allowing her to do her job from Chicago, even though her colleagues worked in Dallas. The plaintiff usually traveled to Dallas one day per week to meet with colleagues and perform tasks that required a physical presence.

The plaintiff's duties included participating in conference calls, administering an internal website distributing information to flight attendants, publishing articles for flight attendants, producing e‑mail communications and preparing remarks for her boss's weekly internal video announcement. The position had no formal, written job description. The plaintiff performed successfully for several years, and there is no record of complaints or disciplinary action against her.

American Airlines merged with US Airways in 2013. The resulting company—still American Airlines—had to integrate the operations of both airlines into a single entity with common policies and procedures. To do so, the flight service department's vice president undertook an extensive process that involved nearly every person in the department. The department expanded its workload, transitioning from primarily producing written communications to putting on live events and performing crisis management functions. The additional work caused the Dallas employees to feel spread thin.

As a result, the vice president unilaterally decided to require all employees to be physically present at headquarters. Upon learning of the impending changes, the plaintiff spoke with her immediate supervisor and emphasized that her WFHA was a necessary accommodation for her disability and relocating to Dallas was not an option. American Airlines and the plaintiff discussed potential accommodations. The plaintiff indicated that if she moved to Dallas, she would need a tube of air conditioning around her at all times while in the office, and she expressed concerns about her ability to cope with the heat outside the office. The company looked for positions outside Dallas for the plaintiff, including a few jobs in Chicago, but she was either not qualified or not interested.

In February 2015, the department helped to produce a leadership conference in Dallas. The department did not ask the plaintiff to attend the event but otherwise needed as many of its employees as possible to assist. One month after the conference ended, the plaintiff's supervisor and HR professional decided that the plaintiff would either have to relocate to Dallas or leave her job. When the plaintiff did not relocate, American Airlines fired her.

The plaintiff brought a charge of discrimination under the Americans with Disabilities Act (ADA) and Illinois law and then filed suit in federal court. She claimed failure to accommodate and retaliation. American Airlines moved for summary judgment, which the district court granted.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

On appeal, the 7th Circuit considered whether American Airlines had established that in-person attendance in Dallas had become an essential function of the position after the merger.

The appeals court noted that the position did not have a written job description, and the plaintiff had performed work for American Airlines remotely for many years before the merger. Nonetheless, the court found that the company had presented undisputed evidence that after the merger, the nature of the plaintiff's position had changed to the production of live events and crisis management, which required working onsite. While teleworking can be a reasonable accommodation, the general rule is that in-person attendance is an essential function of most positions, and American Airlines established that the job was no longer an exception to that rule.

The 7th Circuit thus upheld summary judgment for the employer.

Bilinsky v. American Airlines Inc., 7th Cir., No. 18-3107 (June 26, 2019).

Professional Pointer: In determining whether a job requirement is essential under the ADA, courts will look at job descriptions for the position, as well as the actual duties of the position as performed. To justify an essential job requirement, such as in-person attendance, employers must present evidence of the position's functions and the significance of the functions to the company.

11 Things You Should Know about Web Accessibility and ADA Demand Letters

Did your company receive a Demand Letter stating that your website is in violation of Americans with Disabilities Act (ADA) because it’s not accessible to individuals with disabilities? You’re not alone. Thousands of companies are in the same boat – from big brands to small niche businesses – with the number of web accessibility cases under the ADA growing exponentially since 2015 (up 177% from 2017 to 2018) and showing no signs of slowing. And the ADA litigation trend doesn’t discriminate – if you have a public facing website

When the ADA Title III was enacted in 1990 prohibiting discrimination on the basis of disability in the activities of places of public accommodations, the focus was on ensuring access to physical locations. Fast forward almost 30 years and a lot has changed, but it’s still the same ADA. Regardless, the Department of Justice (DOJ) has repeatedly held that while ADA Title III language does not specifically address the internet, it does apply to websites of public accommodations, even in the absence of affirmative regulations. But, in the absence of formal regulations, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. The courts have taken on a more prominent role in determining if and how the ADA applies to websites and mobile apps, and which specific standards should be targeted for compliance. Regarding technical standards, the DOJ has frequently cited the Web Content Accessibility Guidelines (WCAG) 2.0, specifically promising to adopt WCAG 2.0 Level AA criteria as the standard for web accessibility regulations in 2018, but later moving this action to the department’s “inactive list.” 

In the absence of clear regulations, people with disabilities and their advocates continue to resort to litigation in order to achieve access to information and services on the web. Fortunately, the majority of ADA web accessibility complaints never make it to the courtroom.  If your organization receives a web accessibility demand letter, here’s 11 things you should know to help you navigate the process and craft a win-win settlement agreement.

Demetriou: ADA website compliance; beware ambulance chasers

Many business owners are now learning about the need to have Americans with Disability Act (ADA) compliant websites. 

Even conscientious and sincere owners who want to proactively make their online presence more accessible find that there are no “official” guidelines or regulations that give them the answers they need. Ironically the same government who implemented the ADA in 1990 still has not provided guidance on the website issue. Having said that, there are still important considerations that should be understood, addressed and implemented.

Georgia-based global auto parts supplier being sued by the EEOC

A Georgia-based global automotive parts assembly company is being sued by the Equal Opportunity Commission.

Hitachi Automotive Systems Americas, Inc. has been sued by the U.S. Equal Employment Opportunity Commission (EEOC) for failing to accommodate an employee’s disability and firing her because of it, the federal agency announced today.

According to the EEOC’s lawsuit, Misti Huff King, an assembly operator at Hitachi’s Monroe, Ga., facility, had a medical condition which required her to take frequent restroom breaks. After receiving a positive evaluation and successfully completing her probationary period, Hitachi extended an offer of permanent employment to King. During the screening process, King requested a reasonable accommodation – that she be allowed to take additional restroom breaks beyond her lunch break and scheduled 15-minute break. Instead of granting King’s request, Hitachi determined she was unable to perform the job and rescinded its permanent job offer.

Such conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from making employment decisions based on an employee’s disability unless it would impose an undue hardship. After first attempting to reach a pre-litigation resolution through its conciliation process, the EEOC filed suit in the U.S. District Court for the Northern District of Georgia, Atlanta Division (Civil Action No. 1:19-CV-3887-MLB-JKL). The EEOC is seeking monetary relief for King and injunctive relief prohibiting Hitachi from engaging in similar conduct in the future.

“Employers must accept their legal responsibility to evaluate each employee’s situation without bias and unfounded assumptions,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District office. “When they fail to do so, their employment decisions fly in the face of federal law. The EEOC is committed to seeking relief for workers who are harmed by such discriminatory practices.”

Darrell Graham, district director of the Atlanta office, added, “Hitachi’s decision to rescind its job offer was unlawful, especially in light of Ms. King’s demonstrated ability to perform the essential functions of the job. The company could have accommodated her request to take additional restroom breaks, but instead, dug in its heels and deprived Ms. King of her livelihood without good cause. When that happens, the EEOC will step in.”

How to Manage Your Mental Illness at Work

If you suffer from depression, anxiety, PTSD or another mental illness, here are some real-world tips to help you stay happy and healthy at work.

Philly's sidewalks face a court battle

This week, with the support of three advocacy groups, four individuals with disabilities filed a lawsuit against Philadelphia alleging its violation of the Americans with Disabilities Act (ADA) and a 1977 law that requires all streets be accessible. 

The lawsuit outlines multiple instances where the plaintiffs, both wheelchair-bound and visually impaired, were either injured attempting to traverse Philly’s sidewalks or required to take another route to their destinations because of unforeseen barriers.

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