Kaiser Foundation Health Plan of Georgia Sued by EEOC for Disability Discrimination
Kaiser Foundation Health Plan of Georgia, Inc., a managed health care provider that is part of the Oakland, Calif.-based Kaiser Permanente organization, unlawfully discriminated against an employee when it refused to accommodate her disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today in Atlanta.
According to the EEOC's suit, Specialty Appointment Coordinator Sharion Murphy's disabilities made it traumatic for her to enter revolving doors, so she requested the reasonable accommodation of using non-revolving doors to access her workplace. Kaiser violated federal law when it refused to allow Murphy to use the available non-revolving doors and forced her to use the revolving doors, the EEOC said.
Disability discrimination violates the Americans with Disabilities Act (ADA), and employers who refuse to provide reasonable accommodations to employees with disabilities are liable under the ADA. The EEOC filed suit (EEOC v. Kaiser Foundation Health Plan of Georgia, Inc., Civil Action No. 1:19-CV-5484-CAP WEJ) in the U.S. District Court for the Northern District of Georgia, Atlanta Division after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay and compensatory and punitive damages for Ms. Murphy, as well as injunctive relief designed to prevent future discrimination.
"An employer must provide reasonable accommodations to its employees with disabilities," said Antonette Sewell, regional attorney for the EEOC's Atlanta District Office. "Kaiser refused to allow Ms. Murphy the simple accommodation of using a non-revolving door to access her workplace instead of a revolving door. The company could have saved everyone a great deal of distress, time and trouble had it made this minimal accommodation."
Darrell E. Graham, district director of the Atlanta office, said, "The EEOC is committed to ending disability discrimination in Georgia and across the country. The ADA was passed, in part, to allow individuals with disabilities to continue working if a reasonable accommodation allows them to do so. The decision to not allow Ms. Murphy the simple accommodation of using a non-revolving door shows that Kaiser was not even willing to do the minimum to comply with the law."
Does It Violate the ADA to Work an Employee in Excess of a Work Restriction?
Any employer that refuses to accommodate an employee’s non-work injury because it’s not work-related is asking for a lawsuit.
Supreme Court Declines to Review Web Content Accessibility Suit Against Domino's Pizza
In the fall of 2018, Microsoft released its Xbox Adaptive Controller, which is made for those with limited mobility. As Microsoft artfully put it in a television commercial advertising the new product, "When everyone plays, we all win."
Commercials like that one are welcome reminders that accessibility is important to consumers, and companies that make accessibility a priority win consumers' hearts - and their business.
Over the years, you've likely addressed accessibility issues under the Americans with Disabilities Act related to your brick-and-mortar locations. But did you know that the Department of Justice (DOJ) and some courts have interpreted the ADA to require that disabled users be provided with equal access to the products, services, and information offered through your website and mobile application?
Though accessibility appears to be required, there are no statutes or regulations telling businesses how to comply. Instead, the DOJ has indicated that businesses have flexibility in determining how to ensure accessibility. This flexibility has created uncertainty, which has led to a surge in the number of court cases in which disabled plaintiffs allege that they were not able to access businesses' websites.
In June, Domino's Pizza filed a petition with the United States Supreme Court asking it to overturn the lower court's decision allowing a web content accessibility suit to proceed against the company. But in October, the Supreme Court declined to review the decision, returning the case to the lower court to be decided on its merits. Because the court declined to weigh-in on the issue and provide much-needed clarity to businesses, the number of website accessibility lawsuits filed by private plaintiffs will likely continue to rise.
In the absence of clear standards and regulations, what should lenders do to evaluate the accessibility of their web content? Courts and regulators typically have required businesses to measure and improve the accessibility of their websites by following the Web Content Accessibility Guidelines (WCAG) 2.0 (now currently in version 2.1), designed to make web content more accessible to people with various accessibility challenges, including visual, auditory, physical, speech, cognitive, language, learning, and neurological disabilities. The WCAG is broken down into 12 guidelines, organized under four overarching design principles: Perceivable, operable, understandable, and robust. For each guideline, the WCAG gives users testable criteria to determine which of the three levels of conformity has been attained: Level A (Lowest), Level AA or Level AAA.
In its enforcement actions, the DOJ has generally mandated compliance with Level AA, suggesting that companies should strive to meet that level of conformity. As a result, these guidelines appear to provide the best means of fixing existing accessibility barriers and ensuring that future web content does not contain those barriers.
The path to accessibility begins with a check-up using a third-party tool or auditor to review your website and mobile applications. Next, you should develop a plan to implement any recommended updates or improvements. You also should develop web content accessibility policies and procedures that provide for employee training, in addition to regular audits and corrective measures to ensure ongoing accessibility, as technology changes and new content is added or deleted. You should also consider developing a "help desk" mechanism to provide an alternate means of accessing any inadvertently inaccessible features in your web content.
The Internet has become an indispensable source of information, goods, and services for most individuals. Make sure consumers know that you're committed to accessibility for all - not just at your brick-and-mortar locations, but also on your website. Failure to do so opens the door for private plaintiffs and federal regulators to pursue claims against your company for lack of compliance, including claims for damages and reimbursement of attorneys' fees.
Florida lawmaker proposes to keep pets out of restaurants, other businesses
The bill would not affect local ordinances that allow pets in outdoor areas.
Prisoners With Disabilities Sue The State Over Breach of Agreement To Provide Accommodations
A group representing prisoners with disabilities is accusing the Florida Department of Corrections of failing to comply with a settlement reached in a federal lawsuit about discrimination against inmates who are deaf, blind or use wheelchairs.
Cleveland City Council to review self-assessment
The Cleveland Urban Area Metropolitan Planning Organization will present its Americans With Disabilities Act self-assessment for public input and adoption during the Cleveland City Council’s meeting on Dec. 9.
During a public meeting held at the Cleveland-Bradley County Library on Tuesday, Greg Thomas, MPO coordinator, said the self-assessment included a review of city infrastructure including streets, sidewalks, greenways, as well as public transit and public buildings.
Thomas said bringing all of the city's infrastructure within ADA guidelines will be a multi-year effort.
“There’s a lot of stuff that we're going to see that we have to do," Thomas said. "And they are not things that we can do all in one year; it's going to have to be stretched out.”
The assessment included studying 358 centerline miles of city streets, 54 miles of sidewalks, six miles of greenway, 70 traffic lights, five transit routes, one para-transit service and one transit station to determine if they meet ADA regulations.
During the self-abasement, Thomas said hazards such as a utility pole blocking a sidewalk path presented challenges to the mobility of disabled residents.
“For all of us, we want people to have access to whatever it is that we provide," he said. "Access means different things to different people who have different abilities. That’s the bottom line.”
Jack Richmond, who recently retired as president of the nonprofit Amputee Coalition, said he was encouraged by the city’s assessment and that bringing more of the city’s infrastructure within ADA standards will greatly improve the quality of lives of disabled city residents.
“We want to do everything we can to remove barriers that people might have from living their lives on their own terms,” he said.
Richmond said it can be discouraging for disabled residents who encounter difficulties utilizing city sidewalks to access transit services for the work commutes or running errands.
FMLA to Care for Adult Child?
Most human resources folks know that, under the Family and Medical Leave Act, eligible employees can take leave to care for a child with a serious health condition, and that the FMLA defines “child” as being under the age of 18. But what some perhaps don’t realize is the FMLA has an additional definition of “child”: one over 18 years who is “incapable of self-care because of a mental or physical disability.” And even if they’re aware of that definition, they may not understand that the disability can be quite temporary in nature. A recent case, Gibson v. New York State Office of Mental Health, clearly makes this point.
The employee sought FMLA to care for her daughter and grandchildren following the daughter’s surgery. The request was denied by the assistant personnel manager, who correctly noted that there is no FMLA to care for grandchildren (unless the grandparent is standing in loco parentis to the grandchild – in other words, acting as the parent). But it was also denied as to the daughter because she was over 18. And this is where he went wrong.
The FMLA regulations provide a definition of “incapable of self care” as requiring assistance in three or more of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs), and these encompass a wide range of activities. The regulations provide examples of each. ADLs include “caring appropriately for one’s grooming and hygiene, bathing, dressing and eating.” IADLs are even more expansive, including “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.” (Honestly, this list is so all-encompassing that I think I’m incapable of self-care!) Obviously, this is an easy threshold to meet.
Additionally, the family member must be incapable of self care because of a disability, and the FMLA regulations invoke the definition of disability under the Americans with Disabilities Act – a physical or mental impairment that substantially limits one or more of the major life activities of the individual – and cites to the ADA regulation. Notably, under the ADA, disabilities do not have to be permanent or long-term in nature. According to the EEOC, even temporary impairments can be disabilities “If sufficiently severe.”
In our experience, this is where many HR professionals may get tripped up, just like the assistant personnel manager. Most of them understand that an adult child with a chronic disability will be covered under the FMLA. But many assume that the FMLA does not apply to normally healthy adult children with a temporary condition. That may be the case in many situations – but not all. So, caring for an adult daughter following a normal childbirth, or one who has had surgery with a short recovery period (of days, not many weeks or months), will most likely not be covered by the FMLA. However, an individual recovering from major surgery or catastrophic accident may, in fact, be disabled within the ADA and therefore meet the definition of a “child” under the FMLA.
The lesson here is that requests to care for normally healthy adult children should not be automatically denied. Rather, requests for FMLA to care for an adult child requires careful, thoughtful analysis of the child’s medical condition to see if it meets the definition of an ADA disability.
The flawed logic that makes flying a nightmare for wheelchair users
When Shane Burcaw flies on an airplane, he brings along a customized gel cushion, a car seat, and about 10 pieces of memory foam. The whole arsenal costs around $1,000, but for Burcaw it’s a necessity.
The 27-year-old author and speaker—who, alongside his fiancée, Hannah Aylward, is one half of the YouTube duo Squirmy and Grubs—has spinal muscular atrophy, a genetic disorder that affects motor neurons and causes muscle wasting and weakness. The disorder contorted his limbs and he has used a wheelchair for mobility since he was 2 years old. Today, he uses a motorized wheelchair custom-fitted to his diminutive, 65-pound frame, but to board an airplane, he’s required to give it up. Instead, Aylward must carry Burcaw onto the plane, and from there, transfer him into a child’s car seat, which provides limited support and does not fit his body (thus, the foam).