ADA in the News February 24, 2020

Settlement Agreement:

·       Kaiser Foundation Hospitals

·       Dr. Javier Rios

M&M Limousine to Pay $30,000 to Settle EEOC Disability Lawsuit

The EEOC's lawsuit charged M&M Limousine with violating federal discrimination law when it refused to hire the applicant based on his disability and failed to consider whether he could do the job, with or without reasonable accommodation.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and requires an individualized assessment of whether an applicant with a disability can perform the job with or without reasonable accommodation. The EEOC filed its suit (Civil Action No. 1:19-CV-04213) in U.S. District Court for the Northern District of Illinois after first attempting to reach a pre-litigation settlement through its conciliation process.

M&M will pay $30,000 in monetary relief to the discrimination victim as part of a three-year consent decree settling the suit, signed by U.S. District Judge Gary Feinerman on Feb. 19, 2020. The decree also provides non-monetary relief intended to prevent disability discrimination in M&M's workplace. M&M must train managers and supervisors on disability discrimination and requests for reasonable accommodations under the ADA. The company must track accommodation requests and complaints of disability discrimination and report them to the EEOC.

Prestige Care and Prestige Senior Living to Pay $2 Million to Settle EEOC Disability Discrimination Suit

According to the EEOC's lawsuit, the Vancouver, Wash.-based companies and their affiliated nursing and assisted living facilities had policies requiring employees to perform 100% of job duties without restriction, accommodation, or engaging in the interactive process. The EEOC further charged that Prestige and its affiliates discharged employees with disabilities pursuant to inflexible leave policies.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Eastern District of California (EEOC v. Prestige Care, Inc. et al., Case No. 1:17-cv-01299-AWI-SAB) after first attempting to reach a pre-litigation settlement through its concil­iation process.

In addition to monetary relief, the five-year consent decree settling the suit includes injunctive relief aimed at preventing future disability discrimination. Prestige agreed to retain an external equal employment opportunity monitor to review and revise its policies and procedures regarding ADA compliance and to ensure that Prestige engages in the inter­active process and provides reasonable accommodations. The companies also agreed to provide training and to designate coordinators to handle disability accommodation requests and disability discrim­ination complaints. Eligible claimants will be notified of their right to request a reasonable accommo­dation when applying to work for Prestige.

"We commend Prestige for its commitment to the ADA and for agreeing to comprehensive injunctive remedies," said Anna Park, regional attorney for the EEOC's Los Angeles District Office, which includes the San Joaquin Valley in its jurisdiction. "We encourage all employers in the nursing and assisted living industry to follow suit and review their disability accommodation policies and practices to ensure they are in compliance with federal law."

Express Mart to Pay $25,000 to Settle EEOC Disability Discrimination

The EEOC charged that the Barnhart, Mo.-based company, which operates nine Express Mart convenience stores near St. Louis, violated federal disability discrimination law by failing to hire a job applicant with Tourette's syndrome and neurofibromatosis for a part-time sales clerk position at its Cedar Hill, Mo., store because of his medical conditions.

According to the EEOC, the store manager refused to consider the applicant for employment because of his noticeable facial tic caused by his medical conditions. The EEOC alleged the store manager told her assistant store manager that she did not want such an individual working in the store and threw away his application.

Such alleged hiring discrimination violates the Americans with Disabilities Act (ADA), which prohibits employers from refusing to consider qualified job applicants because of their physical or mental disabilities. The EEOC filed its lawsuit (Equal Employment Opportunity Commission v. Home Service Oil Co. d/b/a Express Mart, Civil Action No. 4:19-cv-02645JAR) in 2019 in U.S. District Court for the Eastern District of Missouri.

The three-year consent decree settling the suit, entered by Judge John A. Ross, requires Home Service Oil Company to pay compensatory damages of $25,000 to the discrimination victim. In addition to other relief, the company will encourage job applicants with disabilities to apply for open positions; ensure that it has strong policies and procedures in place to prevent disability discrimination; provide training to managers regarding disability discrimination; provide reasonable accommodations to disabled employees and applicants; and report complaints of disability discrimination to the EEOC.

Inability To Perform A Specific Job Is Not A Substantial Impairment On Ability To Work, Says Second Circuit In Ada Case

In Woolf v. Strada, decided by the U.S. Court of Appeals for the Second Circuit in February 2020, the court considered whether the plaintiff's inability to perform his particular job as a result of migraines and stress arising from the circumstances surrounding his job gave rise to a qualifying disability under the Americans with Disabilities Act ("ADA"), as amended.

In Woolf, the plaintiff suffered from migraines that he contended were related to stress at work. The migraines left him temporarily incapacitated and impaired his ability to work and to participate in life activities more generally. As a result, his work performance declined and he received negative performance reviews. Throughout this time, the plaintiff made multiple requests to transfer to a different position or to be assigned different supervisors, providing a note from his neurologist in support of his requests. The employer did not grant the plaintiff's transfer requests on account of his poor job performance, but encouraged him to take medical leave to address his condition and provided him with intermittent paid medical leave. Eventually, after receiving another subpar performance review and a written disciplinary warning, the employer terminated the plaintiff's employment. The plaintiff then sued, alleging that his employer violated state and federal disability discrimination laws by refusing to transfer him and terminating his employment.

In support of his claims, Mr. Woolf argued that his stress-induced migraines constituted a disability under the ADA because they substantially limited him in the major life activity of working (among other things). Although the court acknowledged that his migraines arguably affected his work performance, it ultimately rejected his claims because he conceded that the migraines were related to the stress caused by working under his direct supervisors, and he believed that he could perform the same job if he were transferred to a different location or worked under different supervisors. Therefore, the court ruled in favor of the employer explaining, "where a plaintiff's condition leaves him unable to perform only a single, specific job, he has failed to establish a substantial impairment to his major life activity of working."

In reaching this conclusion, the Second Circuit noted that every other federal appellate court that has addressed this question (which includes the First, Sixth, Seventh, Tenth, and the D.C. Circuits) has come to the same conclusion, holding that Congress's amendment to the ADA did not change the fact that "a plaintiff alleging a work-related disability must show that his condition precludes him from working in a class or broad range of jobs." For example, in June 2019, the Sixth Circuit held that a worker's neck injury and related work restrictions did not qualify as a disability under the ADA because the plaintiff was only able to show that the injury kept him from working in a specific role, which does not satisfy the requirements under the ADA. Following that same logic, the Second Circuit held that because Mr. Woolf did not attempt to show that his work-induced migraines substantially limited his ability to work in a class or broad range of job, he did not have a "disability" within the meaning of the ADA.

Because the ADA has a broad, inclusive definition of the term "disability," particularly after the passage of the ADA Amendments Act in 2008, employers are often quick to accept an employee's claim that he or she is disabled within the meaning of the statute. Although this case does not necessarily provide a concrete test for employers to use, it does highlight the fact that not all conditions qualify as a disability and that poor job performance can (and should) be appropriately addressed. With that said, employers also should remember that some state and local laws provide even broader protection than the ADA, so employers should tread carefully and consult with counsel when making employment decision that could implicate these issues. Further, when working with employees who request accommodations due to conditions that are not self-evident, like migraines, employers should require the employees to provide medical documentation that substantiates the severity of their condition so that they can better assess whether an accommodation is necessary and whether it can be reasonably provided.

2019 Was Another Record-Breaking Year For Federal ADA Title III Lawsuits

The ADA Title III federal lawsuit numbers in 2019 topped 11,000 for another all-time record.

Plaintiffs filed at least 11,053 ADA Title III lawsuits in federal court in 2019 — 890 (or 8.8%) more than in 2018. This is the highest number since we started tracking these lawsuits in 2013, when there were only 2,722 such lawsuits. These numbers include Title III lawsuits filed on all grounds — physical facilities, websites and mobile applications, service animals, sign language interpreters, and more. These numbers do not include the significant number of disability access lawsuits filed in state courts which are much more difficult to accurately track.

What Utah lawmakers and officials can do to accommodate deaf residents

Jared Allebest was getting ready to board his flight when he realized it had already left. It wasn’t the first time.

Allebest, who is deaf, said it is common for people who are deaf or hard of hearing to miss flights or get lost at airports when gate changes are announced, because such announcements are rarely made with closed captioning.

“There’s some times when I’ve completely missed a flight because the gate attendant will speak, but it sounds like Charlie Brown’s teacher,” said Allebest, a Midvale-based attorney who specializes in civil rights law. “So I’ve missed flights because of that.”

Allebest said he believes there is a simple and easy-to-implement solution that would prevent this recurring problem from happening: install hearing loops that allow people with telecoil-enabled hearing aids to clearly hear what is being said on a microphone or an intercom.

“It’s almost like connecting a hearing aid directly to the microphone,” Allebest said.

Another solution would be for airports to provide closed captions for announcements and flight changes, which Allebest said the John Wayne Airport in Orange County, California, offers.

Passing legislation that encourages airports to install hearing loops or provide more closed captioning are two things Allebest believes the Utah State Legislature could do to make life easier for Utahns who are deaf or hard of hearing.

And it shouldn’t be limited to airports. Allebest said encouraging courts, hospitals and local government entities to be proactive when it comes to making accommodations for the deaf and hard of hearing would be a positive step for the deaf community.

Tupps prevails in ADA complaint: EEOC: Sheriff’s office discriminated against former deputy based on disability

The Crawford County Sheriff’s Office reportedly violated the American with Disabilities Act of 1990, according to a recent ruling by the Equal Employment Opportunity Commission. The affected former employee is Jason Tupps, who is scheduled to stand trial in April on charges related to a separate incident.

A recent ruling by the Cleveland office of the EEOC stated it found reasonable cause to believe the sheriff’s office discriminated against Tupps because of a disability, and in retaliation for engaging in protected activity when he was denied reasonable accommodation.

Tupps filed a complaint with the EEOC in December 2017, charging the sheriff’s office discriminated against him because of a disability. He alleges that in the months prior to submitting his complaint, he experienced medical issues, which may have been due to his job. A corrections officer at the county jail, Tupps reportedly experienced panic attacks and was taken to a hospital twice — once by ambulance from the county jail, and another time by a sheriff’s office commander.

Tupps says he requested a different schedule to accommodate his medical issues, explaining that he had worked aschedule of six days on, two days off for 21 years.

Feds: Hotel To Allow Service Dogs, Accommodate Disabled Guests

A disabled person said the Comfort Inn refused him a room at the hotel with his service dog and the inn wasn't following accessibility law.

Disability/mental health summit aims to provide information and resources

This year's event will mark the 30th anniversary of the Americans with Disabilities Act.

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