ADA in the News: February 8, 2018

Settlement Agreement: Claremore VFW and Auxiliary 2976

Coleman Company and EEOC Reach Agreement To Resolve Discrimination Charge And Revise Settlement Agreements

Following an investigation, the EEOC found that it was probable that Coleman violated Section 503 of Americans with Disabilities Act (ADA) and Section 704 and 706 of Title VII of the Civil Rights Act of the 1964, by conditioning employees' receipt of severance pay on an overly broad severance agreement that interfered with employees' rights to file charges and communicate with the EEOC, and which precluded employees from accepting any relief obtained by the EEOC, should the agency take further action.

Without admitting liability, Coleman agreed to enter into a conciliation agreement with the EEOC. As part of that agreement, the company agreed to hire an outside equal employment opportunity consultant to review its separation agreements and make sure they comply with law. Coleman also agreed to revise past agreements and notify signatories who signed a prior version between 2013 and 2015 that they could file a charge of discrimination with the EEOC and the company will not raise the time limits on charge filing as a defense. The EEOC will monitor compliance with this agreement.

Owners of E&M Auto Parts accused of violating Americans with Disabilities Act

Northern California Record

A man who is confined to a wheelchair is suing the owners of an El Cajon auto parts store, alleging failure to uphold the Americans with Disabilities Act regulations.

Employer's Ultimatum Supports Employee's ADA Failure to Accommodate Claim

The National Law Review

The United States District Court for the Southern District of Alabama in McClain v. Tenax Corp. recently denied in part an employer’s motion for summary judgment on a disabled employee’s failure to accommodate claim under the ADA.  The Court held the ADA-required interactive process never took place where the employer’s issued an ultimatum to the disabled employee in response to his request for a reasonable accommodation.  The facts show the importance of a well-documented interactive accommodation program.  In this case, an employee suffering from hand and foot deformities worked full-time as a janitor until the employer faced a production slowdown.  The slowdown led to the employee’s position becoming part-time.  In an effort to restore him to full-time, the employer offered a part-time pallet-wrapping position to supplement his part-time janitorial position.  After just two days of performing the part-time pallet-wrapper position, the employee advised his manager he could not perform the job because of his physical impairments.  The employee requested an accommodation whereby he be permitted to return to work as a full-time janitor.  Despite his complaints to multiple managers, they indicated he could either do both positions or quit.  Given no other options, the employee resigned.  He was not fired, but an ultimatum was presented. 

The Court determined that under the ADA the employer had no obligation to create a new position (i.e., a full-time, rather than a part-time, janitorial position) for the employee as a reasonable accommodation.  However, the Court ruled that the employer’s actions could be viewed by a jury as unlawful.  By giving the employee the all-or-nothing ultimatum it failed to engage in the mandatory interactive process, which requires interactive discourse between the employer and employee.

The ADA Matters When It Comes to Consumer Web Portals

It’s true: When it comes to efficient receivables management, consumer web portals are all the rage.  While web-based interactions with consumers are second nature to most businesses, the ARM industry has been slow to adapt. That’s changing, as many outsourcers have begun to embrace newer tools to manage consumer communications and collect payments.

Consumer preferences are the reason for this shift. Web portals present the communication options consumers want and demand. They function as live associates, available 24/7 to take payments. They provide consumers with the means to pay; the documents they need; the reminders they want; and the voice they demand to express consent, ask questions or even register a complaint.

But with every new opportunity comes a cost. Websites trigger unique, complicated compliance requirements for businesses, nonprofits, Federal, state and local governments including third-party collection agencies and those who collect Federal, state or local government debt. One of the most confusing and misunderstood set of consumer web site requirements is driven by Title III of the Americans with Disabilities Act (ADA). 

5 Common Problems and 5 Easy Solutions to ADA Accessibility and and Compliance

We already learned who must comply with the Americans with Disabilities Act (ADA) and the reasons why our industry must understand how the ADA impacts a consumer-facing website. But what particular, major problems do websites present to people with vision and auditory disabilities? More importantly, what are the solutions that solve each?

San Diego Original Pancake House accused of violating ADA

Northern California Record

A quadriplegic is suing the owners of an Original Pancake House, alleging violation of the Americans With Disabilities Act (ADA).

Pedro Garcia filed a complaint on Jan. 19 in the U.S. District Court for the Southern District of California against Horng Jow Corporation, Setili Investments Inc., and Does 1- 10, alleging that they failed to provide full and safe equal access to its San Diego restaurant. 

According to the complaint, the plaintiff alleges that in November 2017he was subjected to discrimination while visiting the defendants' establishment due to the lack of accessible facilities that caused him difficulty and frustration. 

The plaintiff holds the defendants responsible because they allegedly failed to maintain in working and usable conditions the features required to provide ready access to persons with disabilities, and failed to make reasonable modifications in policies, practices or procedures.

The plaintiff requests a trial by jury; and seeks judgment against the defendants for damages, injunctive relief, actual damages, attorneys' fees and litigation expenses. He is represented by Ray Ballister Jr., Isabel Masanque, Phyl Grace and Dennis Price of the Center for Disability Access in San Diego.

U.S. District Court for the Southern District of California Case number 18-cv-122

Opioids, Employees, and Accommodations: an Employer's Primer on Confronting the Crisis

The National Law Review

Consider a few scenarios:

  • An employee has been injured on the job and unexpectedly fails a post-accident drug test, testing positive for opioids. What do you do?
  • An employee comes into your office, closes the door, and confides in you that she is battling an addiction to opioids and needs help. What policies apply and laws come into play?
  • An employee is increasingly absent from work, appears drowsy and inattentive when he is working, and his performance is slipping. You’ve issued a few verbal disciplinary warnings and have decided it is time for the employee to go, but when you go to put the “pink slip” in the employee’s locker, you find a current prescription for pain killers prescribed to the employee. Do you fire him?
  • A candidate for employment submits an application, has impressive credentials, has relevant job experience and hits a home run at her interview. You make a conditional job offer subject to the candidate passing a comprehensive background check, which turns up a drug possession conviction. You raise the issue with the candidate, who discloses that she had a drug dependency addiction in the past but is clean now and still attending support group meetings to stay clean. Do you hire her?

These are just a few examples of how employers and the workplace can be affected by the opioid crisis. Just about everyone in this day and age has been touched by the opioid epidemic or knows someone who has. Employers similarly are not immune to this sad and sobering reality. The opioid crisis touches many employment law issues, policies and procedures, including background checks, drug testing, medical leave laws, employee benefits and counseling, social media and employee speech, employee privacy and HIPAA, and disability discrimination and accommodation under the Americans with Disabilities Act (ADA).

Accessibility In The Workplace: What Businesses Need To Know: Part 3

The National Law Review

Part 1 of our accessibility series explored the importance of businesses deploying accessible IT to recruit and retain employees with a view to reducing job polarization and inequality. Part 2 described how national equality laws are imposing affirmative obligations on businesses to make “reasonable accommodations” in the workplace for employees with disabilities — which may include ensuring that IT devices and services are enabled with accessibility functions.

This third instalment in our series looks deeper into the compliance landscape, at global rules and standards in the U.S., EU and beyond. Although many of these standards currently apply to public sector entities, rather than private entities, we expect this to change as technology transforms the nature of the workplace — not only within back offices and factories, but also on the front-line for customer-facing operations, in sectors such as the hospitality industry and retail.

A Good Example of How Not to Comply with the ADA

Blue MauMau

The settlement of a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”) aptly demonstrates the adage that sometimes the best example is a really bad example.

The EEOC filed the suit in 2017, alleging that Hester Foods, which operated a Kentucky Fried Chicken restaurant in Dublin, Georgia, had violated the Americans with Disabilities Act (“ADA”) by firing its restaurant manager when the company’s owner found out that the woman was taking medication prescribed by her doctor to treat her bipolar disorder.

According to the EEOC lawsuit, when the owner discovered the woman was receiving the treatment, he referred to the manager’s medications in obscene terms, and made her destroy her medications by flushing them down a toilet at the restaurant. When the woman later told the owner that she planned to continue taking the medications per her doctor’s orders, the owner told her not to return to work and fired her.  The EEOC filed suit in the U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process.

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