Firing of worker with flesh-eating bacteria didn't violate ADA
HR Dive
- A Minnesota city did not violate the Americans with Disabilities Act (ADA) when it offered an employee a lower paying job or a severance package after he took extensive leave to recover from a disease commonly called "flesh-eating" bacteria, the 8th U.S. Circuit Court of Appeals has ruled (Brunckhorst v. City of Oak Park Heights, No. 17-3238 (8th Cir. Feb. 4, 2019)).
- Gary Brunckhorst, who worked as the city's accountant and payroll technician, alleged in a lawsuit that his employer violated the ADA and state law because it did not offer a reasonable accommodation and did not engage in the interactive process before terminating him because of his disability. Furthermore, Brunckhorst argued that the city retaliated against him after he complained of discrimination. A district court granted summary judgment for the city, and the 8th Circuit affirmed.
- Noting that the city had been communicating with Brunckhorst for months regarding his return to work, the court said there was no evidence that the city had engaged in anything other than a good-faith dialogue. The court also pointed out that the city was not obligated to assign Brunckhorst to his original job, as it had since been absorbed by other employees.
Dive Insight:
The ADA requires that employers make reasonable accommodations for workers with disabilities, so long as they don't create an undue hardship for the employer. Accommodations can include reassignment, as the employer offered in Brunckhorst. The plaintiff's original position no longer existed, its duties having been absorbed by employees covering for his absence. The employer did, however, offer him a reassignment for which he was qualified.
And as the U.S. Equal Employment Opportunity Commission notes in its reasonable accommodation guidance, equal reassignment is preferable, but not mandatory. "If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified," it says. And, "reassignment does not include giving an employee a promotion."
Moreover, the ADA does not require — at least not technically — employers to engage in an interactive process to determine effective accommodations for workers with disabilities, but it does favor those that act in good faith. This process begins when an employee expresses a need, according to David K. Fram, director of ADA and EEO services for the National Employment Law Institute. Once this need has been revealed, it's important that managers and supervisors respond swiftly, asking what they can do to help.
In this instance, the employer earned a gold star in the form of summary judgment for its interactive process; the appeals court also noted that there was no dispute as to the city's good-faith participation in the process. Brunckhorst and the employer communicated for nearly a year as he used up his paid leave, went on unpaid leave and sought more unpaid leave as he recuperated.
The case's fact pattern may serve as a road map. Employers often impede the interactive process is by ignoring or failing to recognize requests for accommodation, Fram previously told HR Dive in an interview. "Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee," he said. "I advise employers to bend over backwards to help somebody who is saying, 'I need some help' for something that might possibly be a disability, whether or not you like the person."
Website accessibility suits surge in Florida, New York, following favorable plaintiff rulings
Florida Record
The number of website accessibility lawsuits filed in federal court has exploded, with the greatest numbers being filed in New York and Florida, according to a new study.
Conducted by attorneys at Seyfarth Shaw, the report found that the number of suits claiming violation of Title III of the American with Disabilities Act has increased by 177 percent, from 814 in 2017 to 2,258 last year.
In 2018, a total of 1,564 were filed in New York and 814 in Florida, according to the authors of the report, Kristina Launeyand Minh Vu.
The authors note that statistics for New York's website accessibility lawsuits are "a close second" to California which holds claim to the total number of ADA Title III lawsuits - not just website accessibility cases - filed in federal court.
United States: Due Process And Primary Jurisdiction Defenses To Website Accessibility Claims Fall Like Dominoes In The Ninth Circuit
Mondaq News Alerts
The Ninth Circuit Court of Appeals issued its highly-anticipated website accessibility opinion in Robles v. Domino's Pizza, reaffirming the obligation to make retailers' websites accessible and rejecting the due process and primary jurisdiction arguments commonly asserted by defendants in website accessibility litigation. While this is undoubtedly a blow to the defense bar, it was not entirely surprising, and the court did provide some helpful commentary for the defense bar.
Guillermo Robles, a blind person, filed a lawsuit under the Americans with Disabilities Act (ADA) and the California Unruh Civil Rights Act, alleging that the Domino's website and mobile app were not compatible with the screen-reading software that Robles and other blind persons use to access websites. Thedistrict court dismissed the case, finding that (1) applying the ADA to the website and app violated due process because of the absence of technical compliance standards (e.g., Web Content Accessibility Guidelines (WCAG) 2.0, Level AA), and (2) under the primary jurisdiction doctrine, the case would be better decided after the U.S. Department of Justice (DOJ), the agency responsible for issuing regulatory guidance, issued standards regarding website accessibility. Robles appealed.
In its opinion, the Ninth Circuit repeated its allegiance to the "nexus" theory, which says that only the goods and services of a physical, brick-and-mortar place of public accommodation need to comply with Title III of the ADA. The court also confirmed that the ADA applied to the Domino's website and app even though the services provided through the website and app (e.g., ordering pizzas) are predominantly accessed away from the "bricks and mortar" restaurant. The court rejected Domino's' argument that imposing liability on it in the absence of specific technical compliance standards violated due process. In short, the court found that Domino's received fair notice that its website and app must comply with the ADA and that, although imprecise, the ADA makes it clear that websites must effectively communicate with disabled customers and facilitate "full and equal enjoyment" of the public accommodations' goods and services. Finally, the court found that the district court erred in invoking the primary jurisdiction doctrine because doing so, in light of the DOJ's withdrawal of rulemaking related to website accessibility, would unduly delay the resolution of claims that the court can decide.
The case was remanded back to the district court to conduct discovery and decide whether the Domino's website and app provided Robles with equal enjoyment of Domino's' goods and services. It remains to be seen whether Domino's will appeal to the Supreme Court of the United States.
Key Takeaways
- Public accommodation websites must be accessible if the goods and services relate to the place of public accommodation, even if the provision of goods and services do not occur on the premises of the public accommodation. At the same time, a website or mobile app must have a "nexus," or connection, to a physical place of public accommodation to be covered by Title III of the ADA. Purely virtual businesses may not be covered by Title III, at least not in the Ninth Circuit.
- There is still the possibility that providing 24/7 toll-free customer service assistance could be an acceptable way to provide access to the goods and services in lieu of an accessible website or app, but factual questions remain as to whether such telephonic or other access is equivalent to what is available on the website.
- Consistent with the DOJ's position in its September 25, 2018 letter regarding website accessibility, the court noted that public accommodations are provided "maximum flexibility in meeting the [ADA's] requirements." Nonetheless, conformance to WCAG 2.0 or 2.1 likely remains the only predictably safe standard to ensure that websites comply with the ADA.
State Bar to Ask Appeals Court to Revive Discipline Case Against Austin Lawyer
Law.com
In appellate briefs, Omar Rosales' lawyers argued that the State Bar of Texas' disciplinary action against him is barred by the state's anti-SLAPP law, and that he is the target of an orchestrated attack on his ADA-compliance practice.
Guidelines vague for #jcmo business community governing medical marijuana use
Jefferson City News Tribune
The Americans with Disabilities Act of 1990 forbids discriminating against employees because of disabilities. Still, the ADA also states employees who use drugs illegal under federal law do not receive protections under the law.
Early medical marijuana adopters like California and Oregon held that the ADA did not protect medical marijuana use, Marino said. Late adopters like New York, Alaska and Connecticut carved out protections in their laws that protect ADA patients’ right to use medical marijuana.
Website Accessibility – Americans with Disabilities Act Impact
JD Supra
Title III of the Americans with Disabilities Act (“ADA”) mandates that public accommodation must be provided to disabled persons to allow for the “full and equal enjoyment” of the related privileges, goods, services, advantages and accommodations as those provided to able bodied persons. The owner of any business is responsible for making sure those accommodations are made with “reasonable modification.” The ADA makes it very clear that a business that does not provide for that accommodation is engaging in unlawful discrimination 42 U.S.C. section 12182(b)(2)(A)(iii).
The statute provides for various examples of where public accommodations must be provided, including locations such as an inn, a restaurant, a theater, an auditorium, a bakery, a laundromat, a depot, a museum, a zoo, a nursery, a day care center, and a gymnasium. Noticeably absent from that list are websites. That’s because websites did not exist at the time the statute was passed, and Congress has not expressly addressed the issue in the interim.
Family of girl banned from Rogers Plaza files ADA lawsuit
WZZM13.com
The family of a two-year-old developmentally disabled girl that was banned from Rogers Plaza is suing the property owners.
The federal lawsuit says Spigel Properties, Inc. and S & S Shopping Centers, Ltd., the owners of Rogers Plaza, violated Claire Dykstra's rights through the Americans with Disabilities Act.
According to the lawsuit Claire Dykstra and her grandfather used to walk through the mall every Thursday with her physical therapist. Claire has a brain disorder called agenesis of the corpus callosum which affects her ability to walk. When she got tired Claire would sit down for a few minutes behind her custom built walker.
According to her family on Dec. 13, 2018 management at Rogers Plaza said sitting on the floor is prohibited. Security also threatened to call police and banned Claire and her family from the property.
The lawsuit alleges that the actions taken by the Defendants violated Section III of the ADA and the Michigan PWDCRA, both of which prohibit disability discrimination in places of public accommodation.
Rogers Plaza's owners have not yet responded to the lawsuit.
ADA lawsuits tied to websites mount: Should banks fix, or fight?
American Banker
Lawsuits accusing corporations of operating websites that are inaccessible to consumers with disabilities skyrocketed last year. The trend shows no sign of slowing down in 2019.
Banks are vulnerable to these lawsuits, according to legal and technology experts, because they operate websites and mobile applications that promote products and services as well as let consumers conduct transactions. Both functions expose them to potential violations of the Americans with Disabilities Act.
Just this year, at least 14 banks have been sued under the ADA in federal courts, according to the law firm Seyfarth Shaw in Sacramento, Calif. Defendants include Capital One Financial and Bank OZK in Little Rock, Ark.
Across all industries, the number of federal lawsuits filed in 2019 that allege ADA noncompliance almost tripled to about 2,258 in 2018, the law firm said. At least 133 of the lawsuits filed last year named a bank or credit union as the defendant.Attorneys expect these types of lawsuits to persist, largely because many recent judicial rulings have set precedents in favor of plaintiffs, said Kristina Launey, an employment lawyer at Seyfarth Shaw who advises companies on ADA compliance.
“The lawsuits are going to be increasing exponentially,” she said.
California is also likely to become a hotbed for the litigation this year due to a recent federal appellate court ruling in the state that was favorable to plaintiffs, said Tim Toohey, an attorney at Greenberg Glusker in Los Angeles. In that case, the court ruled against an argument by Domino’s Pizza that it could not make its website and app accessible because the Justice Department had not issued formal guidelines and rules for doing so.
“The decision is likely to provide further encouragement” to plaintiffs, Toohey wrote in a Jan. 25 legal alert to clients. Thus, “it is in the best interest of all businesses to ensure that their websites and applications are ADA-compliant.”
Even with the legal trends favoring plaintiffs, some bank executives choose to pay the costs of a legal settlement rather than make the financial investment needed to fix their websites, said Mark Shapiro, president of the Bureau of Internet Accessibility, a technology consulting firm in Providence, R.I. That is a mistake, he said.
“If you settle with them, it’s a short-term resolution, but you’re susceptible to other cases,” Shapiro said. “It’s not a smart thing to do.”
The steps banks need to take to minimize the risk of being sued are no secret. Several state banking associations, including those in Georgia, Illinois and Washington, have warned their members of the dangers of not paying for an ADA technology-compliance audit.
Websites and mobile apps must be accessible to consumers whose vision, hearing and mobility are impaired, Shapiro said. Helpful features include audio transcripts of written text, large font sizes and the ability to scroll through a page using a keyboard instead of a mouse.
All of those upgrades can help the disabled view, hear and access a bank’s content, he said.
“In many cases, these are not bogus lawsuits,” Shapiro said. “They are very legit cases.”
Bank management must also be mindful that if a website or mobile-based marketing promotion contains audio or video, they could potentially violate the ADA, Shapiro said. That is because the visually impaired, for example, may not be able to see the information that is conveyed and are thus excluded from the promotion.
“If you post a video for a promotion for taking points off your mortgage, if someone is colorblind and can’t see or read that, they’re excluded from the promotion,” Shapiro said. “You are discriminating against them.”
The cost to audit a bank’s websites and other technology for ADA compliance can run between $5,000 and $50,000, depending on the bank’s size, Shapiro said. The additional expense to remediate the technology would be much more.
To be certain, many banks have made a concerted effort to improve access for disabled customers—not just in the design of their technology platforms, but also retrofitting branches and ATMs, making it easier for the disabled to open accounts and training disabled job applicants to help them become employees.
Fifth Third Bank in Cincinnati, in one example, created a high school transitional program “that allows individuals who just happen to have a disability the opportunity to gain skills so they can go out and be active members of society,” Mitch Morgan, the bank’s manager for diversity and inclusion, told American Banker last year.
But banks and credit unions continue to be sued over website issues. And, in some cases, financial institutions have fought back.
Consider a lawsuit filed in February 2018 against Amalgamated Bank in New York. The plaintiff, Eugene Duncan of Queens, N.Y., alleged that he could not access the bank’s website because he is legally blind. Amalgamated responded in a court filing a month later that it was “ready and willing” to help Duncan access its services through other means, such as telephone banking, “but Plaintiff never asked for or sought any assistance.”
Duncan is “a serial plaintiff who filed this lawsuit to try to extort a monetary settlement,” Amalgamated said in the filing.
Amalgamated also said that the website of Duncan’s two law firms also did not comply with the ADA. It included a screenshot of both firms’ web pages in a court filing.
What happened next between Amalgamated and Duncan was not revealed in court. But six months after the bank submitted its response, the two sides agreed to a settlement. Financial terms were not disclosed.
Corrected February 11, 2019 at 3:47PM: An earlier version of this story incorrectly stated that FirstBank in Lakewood, Colo., was among the banks sued for operating a website that did not comply with Americans with Disabilities Act requirements.