United States: The ADA Does Not Obligate Employers To Make On -The-Spot Accommodations Of The Employee's Choosing
Mondaq News Alerts
Seyfarth Synopsis: Sixth Circuit Court of Appeals clarifies that employers have discretion to provide a reasonable accommodation as identified through the interactive process. Once an employee abandons the interactive process, the employer has no duty to accommodate.
Under the Americans with Disabilities Act (ADA), the purpose of the interactive process is to "identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." Employers may erroneously believe that the interactive process as a tool is something utilized by and beneficial to employees. However, the Sixth Circuit has recently shed light on just how the interactive process protects employers from having to make on-the-spot accommodations of an employee's choosing.
In Brumley v. United Parcel Service, Inc., the Plaintiff Melissa Brumley, who worked primarily as a sorter, injured her back while unloading heavy packages from a UPS truck. After receiving worker's compensation and taking a leave of absence, she initially returned to work with two return-to-work notes that included permanent lifting restrictions and a statement that Brumley may return to "local sort." Even though it was unclear exactly how Brumley requested an accommodation, upon receipt of Brumley's return-to-work notes UPS initiated an internal ADA interactive process, and pursuant to that process, asked Brumley to submit two medical forms that would allow it to evaluate further her restrictions and identify possible accommodations. Brumley remained on leave as a result of this request.
Trend of Class Action Lawsuits Alleging Company Websites Discriminate Against Disabled Individuals Expected to Continue in 2019
The National Law Review
Business owners beware: 2019 promises an increased number of Federal class action lawsuits alleging that company websites and point-of-sale terminals ("POS") violate Title III of the Americans with Disabilities Act ("ADA"). A business owner can end up paying substantial monetary damages and attorneys' fees, in addition to the expense of redesigning and modifying their business platform to accommodate the plaintiffs.
Title III of the ADA requires businesses to remove obstacles that interfere with the ability of disabled persons to access their products or services. These class action lawsuits target businesses that have not provided accessible websites and POS terminals. The claims typically have been brought by groups of visually impaired consumers alleging that the business failed to allow for internet access which accommodates their disability.
If it is determined that a business' website or POS terminal violates Title III of the ADA, the business could be required to redesign its website to ensure it no longer violates the ADA.
The prevailing party, while not entitled to a monetary recovery, would be entitled to attorneys' fees. Nonetheless, the lack of money damages has not deterred individuals from aggressively filing claims against businesses requesting an economic recovery. These claims often settle prior to trial because businesses are often willing to pay a nominal amount to the aggrieved parties, as a cost of doing business, to resolve the dispute rather than getting tied up in costly litigation and negative media attention.
Because it is fairly easy for individuals to initiate lawsuits for violations of Title III, we encourage businesses to take a few basic steps to reduce their exposure to these types of claims. First, businesses should review their website and determine whether it complies with the ADA, state laws, and local ordinances. One of the most common accepted industry standards for websites is the World Wide Web Consortium's ("W3C") Web Content Accessibility Guidelines ("WCAG"). The WCAG has been widely accepted as providing for full and equal access in accordance with federal law. In fact, a long list of countries, state and local governments, and businesses have adopted the WCAG standards to ensure websites are more accessible to people with disabilities. To ensure compliance with WCAG standards, businesses should work with their IT department or an external consulting firm. Ensuring compliance with the WCAG standards, while not necessarily the ultimate defense, will limit exposure to class action lawsuits alleging violations of Title III of the ADA.
Title III issues also arise when applicants apply through company websites. To minimize liability, employers should:
- Ensure that job announcements posted on job boards and social/professional networking sites are in formats that are accessible to jobseekers with disabilities.
- Indicate on job announcements that qualified individuals with disabilities are encouraged to apply and that reasonable accommodations will be provided.
- Ensure online application systems, including online pre-employment tests, are accessible to candidates with disabilities. Visit the Partnership on Employment and Accessible Technology interactive web portal at https://www.peatworks.org/ for employer tips on ensuring accessible online job application systems.
- Confirm that interview locations are physically accessible. Visit www.ADA.gov for information on building accessibility.
- Inform all applicants ahead of time what the interview process may include and provide them with the opportunity to request a reasonable accommodation, if needed.
- Be prepared to provide reasonable accommodations for applications, interviews, preemployment tests, and other aspects of the hiring process when needed, including assigning staff to arrange and approve requested accommodations in a timely fashion. For information on web content accessibility, please see the WCAG standards and www.Section508.gov for accessibility guidelines under Section 508 of the Rehabilitation Act.
The Pennsylvania Record
The U.S. District Court for the Eastern District of Pennsylvania has granted in part and denied in part a motion to dismiss an employment discrimination case against the County of Bucks.
Plaintiff Matthew Beishl claims the county discriminated against him and failed to accommodate his disability. He has filed complaints under the Family Medical Leave Act, Americans with Disabilities Act and the Pennsylvania Human Relations Act.
The court has allowed Beishl's claims for retaliation and disability discrimination under the ADA and PHRA to move forward. However, his claim for failure to accommodate under those standards was dismissed.
“Because no reasonable jury could find that Beishl’s requested accommodation to work only at Core Creek was reasonable, we shall dismiss his failure to accommodate claim under the ADA and the PHRA,” the court decision stated.
On Dec. 11, a plaintiff filed a civil lawsuit against the city of Escondido for an alleged violation of the Americans with Disabilities Act, as well as injuries and damages suffered as a result of lack of a handicapped accessible crosswalk and sidewalk at a heavily trafficked city intersection.
Filed at the Superior Court of California in Vista, Winchester v. City of Escondido pits Fallbrook resident John Winchester, 46, against the city of Escondido. The complaint alleges that the injury took place at an intersection at the south 2000 block of Auto Parkway in Escondido, which contains numerous auto dealerships and is in close proximity to Interstate Highway 15.
Winchester, who is wheelchair bound, alleges in the lawsuit that in October 2017 he encountered an area with “excessively and illegally abraded concrete, inaccessible walkways, which lacked protection from sharp, exposed and/or abrasive features.” He added, “The walkway also had an unlawful change in height.”