Diamond B & Harris Companies Pay $100,000 to Settle EEOC Disability Discrimination Suit
A Bellingham, Wash.-based company formerly doing business as Diamond B Constructors, Inc. and its successor, Harris Companies, will pay $100,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
According to the EEOC's suit, Angela Watson was dispatched by her union to work on a project for Diamond B in Anacortes, Wash. Watson is a pipefitter by trade and holds an additional certification as a rigger. When Watson disclosed to her direct supervisor that she has epilepsy, he and other Diamond B supervisors unilaterally concluded that she could not safely work at heights and terminated her employment - even though Watson's epilepsy was well controlled by medication and that she had not requested any accommodation and had no medical restrictions.
Terminating an employee based on her disability violates the Americans with Disabilities Act (ADA). The law also requires employers to make a case-by-case assessment of a worker's actual ability to perform the job functions when potential safety concerns are raised. After first attempting to reach a pre-litigation settlement through its voluntary conciliation process, the EEOC filed suit in U.S. District Court for the Western District of Washington (EEOC v. BLI Northwest, Inc., f/k/a Diamond B Constructors, Inc. and Harris Pacific Northwest, LLC f/k/a Harris Acquisition IV, LLC, Case No. 2:18-CV-00926-RAJ).
The three-year consent decree settling the lawsuit provides $100,000 in compensatory damages to Watson. The decree also requires Diamond B and Harris Companies to train their personnel on compliance with federal anti-discrimination laws, with an emphasis on the ADA. The companies will also implement and disseminate an ADA policy and post a notice describing obligations under the consent decree and employees' ADA rights.
"This employer concluded that Ms. Watson presented a significant safety risk without assessing the actual likelihood of her having a seizure," EEOC Senior Trial Attorney May Che said. "Depriving a person of employment opportunities because of assumptions about conditions such as epilepsy strikes at the heart of the ADA, and the EEOC will defend the rights of such persons in the workplace."
M&T Bank To Pay $100K To Settle Pregnancy-Related Disability Discriminatory Lawsuit
M&T Bank must pay $100,000 and provide “significant equitable relief” to resolve a federal disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Tuesday.
According to the suit, an M&T branch manager in Baltimore told a vice president that she needed surgery for pregnancy-related disability. While she was on approved leave, M&T informed her that it would fill her position unless she was medically cleared to work within 10 days.
M&T required her to apply for vacant positions for which she was qualified instead of simply reassigning her to one of them as a reasonable accommodation, the suit says.
Further, the EEOC charged there were at least 24 vacant branch manager or assistant branch manager positions available in the greater Baltimore region at the time the manager would try to go back to work.
M&T discharged the manager because of her disability and record of a disability, the suit claims.
The Americans with Disabilities Act prohibits discrimination based on disability or a record of a disability, and requires employers to “reasonably accommodate an individual’s disability unless the employer can prove that doing so would be an undue hardship.”
A U.S. District Court judge found the manager did have a disability within the ADA’s meaning and was entitled to non-competitive reassignment to a vacant position for which she was qualified for as a reasonable accommodation.
In addition to the $100,000 in lost wages and compensatory damages to the manager, the three-year consent decree resolving the case enjoins M&T Bank from engaging in disability discrimination in the future.
The bank must also create a non-competitive procedure so that a qualified employee coming back from work after an extended leave of absence due to a disability and whose job has been replaced may be reassigned to a vacant position as a reasonable accommodation.
M&T Bank will also provide training on Title VII, post an anti-discrimination notice, and report to the EEOC on how it handles any reassign¬ment of employees whose jobs were replaced while on a medical leave of absence, a release announcing the settlement said.
The Rocky Mountain ADA Center Creates 2nd Pocket Guide, Interacting with People with Intellectual and Developmental Disabilities, for Colorado Springs Police Department
Pocket guide designed to increase effective communication between officers and people with Intellectual and Developmental Disabilities
N.C. Federal Court Allows Former Employee’s Disability Claims to Proceed to Trial
A North Carolina federal trial court recently denied an employer’s request to dismiss a former employee’s disability discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”). The case provides a helpful reminder of why employers must be ready to articulate and provide concrete support for any alleged “undue hardship” a requested reasonable accommodation would create before denying it.
Case Facts
In 2002, Mohammed Imam began his employment with Cumberland County’s Information Services Technology Department. Imam was able to perform his tasks remotely, and as a result, often telecommuted from his home in Raleigh, North Carolina.
On August 11, 2016, Imam’s physician diagnosed him with deep vein thrombosis ("DVT") in his right leg. On August 16, 2016, the physician sent a letter to the county informing it of the condition and requesting that he be permitted to work from home for two weeks until the blood clot in his leg stabilized. The county granted the request.
On September 6, 2016, after Imam had commuted for two weeks, the county added “operational duties” to Imam’s job description. Such “operational duties” could not be performed remotely, and Imam had previously not been required to perform such duties. Before the county added these duties to Imam’s job description, two county employees had been responsible for performing them, and there were other employees trained on how to complete them.
A few days later, on September 15, Imam’s physician sent another letter to the county advising that Imam’s DVT had additional complications and requesting that the county permit him to telecommute for an additional two to three months. The county refused this request, indicating that Imam’s new operational job duties (which, according to the county, comprised 30% of his duties) required him to work on-site daily.
On October 20, Imam met with county personnel to discuss the operational duties. The county again denied Imam’s request that he work remotely and informed him that he was expected to report to work on November 3. After Imam failed to do so, he was terminated on November 14. Following Imam’s termination, the employees who had previously been performing the operational duties continued to do so for an additional six months, at which point the duties transitioned to two other employees already on staff.
In December 2017, Imam sued the county for discrimination and retaliation under the ADA. The county moved for summary judgment (i.e., a motion before trial asserting that there is no dispute as to any material fact and that the requesting party is entitled to a favorable ruling under applicable law), which the trial court denied.
In denying the county’s motion and allowing the case to proceed to trial, the court said, among other things, that there was a genuine dispute of material fact as to why the county could not accommodate Imam’s second request for additional telecommuting. In this regard, the court cited the fact that the same individuals who performed the operational responsibilities before they were assigned to Imam performed them for an additional six to seven months following Imam’s termination. In addition, the court noted that, when the duties were ultimately reassigned, they were assigned to other personnel already on staff.
The “Undue Hardship” Trap
While the ADA does not require employers to transfer the essential functions of a disabled employee’s position to other employees or hire an individual to perform the essential functions of the position, the ADA may require that an employer reallocate or redistribute marginal job functions that an employee is unable to perform because of a disability, so long as doing so would not cause an undue hardship on the employer.
While employers may be tempted to decline reasonable accommodations, such as reallocating marginal job functions, on the basis that it would be inconvenient, the ADA requires a greater showing—a reasonable accommodation that allows an employee to perform the essential functions of his/her position must create an “undue hardship” in order for the employer to be able to reject it. To demonstrate an “undue hardship,” employers must be able to show the change would entail “significant difficulty or expense;” would be “unduly extensive, substantial, or disruptive;” or “would fundamentally alter the nature or operation of the business.” As this standard is often more difficult to meet than employers may realize, before denying a reasonable accommodation request on this basis, employers should ensure they can articulate and provide concrete support for the alleged hardship.
Feeling The Accessibility Of Gift Cards
Recently, a wave of lawsuits were filed against restaurants and retailers located in New York for their failure to sell gift cards that contain braille. These lawsuits allege violations of the Americans with Disabilities Act (“ADA”), the New York State Human Rights Law and the New York City Human Rights Law. New York hospitality employers who sell gift cards should be aware of this new and novel concept, and consider preparing proactively to avoid being faced with similar lawsuits.
Amtrak apologizes for $25,000 ticket price for Chicago to Bloomington-Normal trip
A Chicago-based disability rights group contends Amtrak wanted to charge $25,000 to accommodate several wheelchair users on a one-way train ride from Chicago to Bloomington -- a trip that normally costs $16.
Adam Ballard, the housing and transportation police analyst at Access Living, said about a month ago, the group reached out to Amtrak to set up travel arrangements for a meeting in Bloomington this week.
Ballard stated Amtrak said it would need to charge $25,000 to reconfigure a train car to meet the group's needs if more than three wheelchairs needed to be accommodated.
Marketing Website Accessibility in the Age of Assumptions
Offering website accessibility services has attracted enthusiastic interest from digital marketing and web design companies seeking new revenue streams.
Ground zero is overcoming accessibility assumptions, myths, biases, and even misguided marketing about what accessibility is and who it is for.
accessiBe aims to get people with disabilities online by 2025
It’s tough to imagine that there are still segments of the global population that are being left behind in terms of internet access. Over half of the global population is already online. Yet, people with disabilities still struggle to go online and consume digital content due to poor web accessibility.
Websites continue to lack support for assistive technologies that are used by the disabled to access digital content. Adherence to standards like the Web Content Accessibility Guidelines (WCAG) should enable technologies such as screen readers and special input devices to process content and navigational elements. But if websites aren’t compliant, these devices wouldn’t be able to function optimally.
As such, accessiBe comes as a welcome development for all accessibility stakeholders. The company’s tool allows site owners and organisations to conveniently and quickly make their websites accessible through artificial intelligence (AI).
SPB In-Depth: Service Animals as Reasonable Workplace Disability Accommodations (US)
Many individuals with disabilities use service animals to help them fully engage in everyday life. Animals, particularly dogs, can be trained to perform a wide range of tasks to help people with disabilities, and the number of tasks these specially trained animals can perform continues to grow. As a result, more applicants and employees are requesting the use of service animals as a reasonable workplace accommodation for a variety of different disabilities. In addition, the growing popularity of emotional support animals adds another layer of complexity to the issue of animals in the workplace for employers. Because the law in this area is somewhat murky, employers must use caution when addressing service animal/emotional support animal accommodation requests and need to be prepared to address the potential challenges that such accommodations can entail.
Animals as Accommodations under the ADA
Title I of the Americans with Disabilities Act (ADA), which specifically addresses disabilities in the employment context, is silent on the issue of service animals in the workplace. However, Title III of the ADA, which addresses accommodation of persons with disabilities in public and commercial facilities, provides some guidance regarding service animals. Title III requires places of public accommodation to permit service animals to accompany individuals with disabilities in all areas where the public is allowed to go. Importantly, this provision of the ADA narrowly defines a “service animal” as either a dog or miniature horse (when reasonable) that has been individually trained “to do work or perform tasks” for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.
Such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, alerting a diabetic in advance of low or high blood sugar events, and reminding a person with a mental illness to take prescribed medications. Service animals are working animals, not pets, and to meet the definition of a service animal, the work or task that the animal has been trained to perform must be directly related to the person’s disability. Under Title III of the ADA, business owners can only ask individuals with disabilities who are accompanied by a service dog or miniature horse if (1) the dog or miniature horse is a service animal required because of a disability, and (2) what work or task the animal has been trained to perform.
Conversely, under Title III’s definition, an animal whose sole function is to provide comfort or emotional support does not qualify as a service animal under the ADA because it has not been sufficiently trained to perform a specific job or task. Therefore, under the ADA, there is no obligation to accommodate emotional support animals in places of public accommodation. However, as we previously reported here, because there are so few restrictions on individuals bringing animals in places of public accommodation, businesses owners report that patrons frequently try to fraudulently pass off their emotional support animals or pets as legitimate service animals. In response to this issue, states like Arizona have enacted laws making it illegal to misrepresent a pet as a service animal or service animal-in-training and creating civil penalties of up to $250 for each violation. Although business owners have no obligation to accommodate emotional support animals under federal law or under the laws of some states, other states have enacted their own laws specific to service animals and emotional support animals that expand the obligation to accommodate. For example, California and a minority of other states have disability discrimination laws that do allow for emotional support animals as a reasonable accommodation in certain circumstances. Further, other federal laws, such as the Fair Housing Act, include emotional support animals in their definition of service animals.
Service Animals in the Employment Context
Although Title III’s definition of “service animal” is informative, employers and employees are not limited to those rigid restrictions because Title I does not specifically address service animals in the employment context. Therefore, unlike in places of public accommodation, where entities are required to allow service animals, under Title I, employers are not automatically required to grant a request for use of a service animal by an employee or applicant. Instead, employers must consider the request for a service animal as they would any request for a reasonable accommodation, and after engaging in the interactive process, determine whether granting the request is necessary and not unduly burdensome. At bottom, an employee’s or applicant’s request to use a service animal as a reasonable accommodation for a disability is really just a request to deviate from an employer’s “no-pets” or “no-animals” policy (assuming it maintains those policies). Accordingly, employers who have policies explicitly prohibiting pets/animals in the workplace should modify such policies to allow for service animals as a potential reasonable accommodation, when appropriate.
On the other hand, in some instances, employers may be required to provide employees with more expansive accommodations than those contemplated by Title III. For example, depending on the circumstances, the use of other types of service animals than dogs and miniature horses may be considered a reasonable accommodation for employees. Moreover, because Title I does not have a specific definition of “service animal” in the employment context, the use of emotional support animals may be considered a reasonable disability accommodation for employees/applicants, in certain situations. Accordingly, employers should not summarily dismiss an employee’s or applicant’s request simply because the animal is not a dog or miniature horse, or because the animal is identified as an emotional support animal.
What to Do When an Employee or Applicant Requests Use of an Animal as an Accommodation
An applicant or employee’s request to use a service or emotional support animal in the workplace should be treated as any other disability accommodation request. As with any such request, the employer should gather basic information about the employee’s condition and reasons for the request. When the disability and/or need for accommodation is not obvious, an employer can ask for medical documentation regarding the individual’s disability and functional limitations, as well as information about how the animal will assist the employee with his or her disability. Further, employers can request documentation about the animal’s training and health records, including vaccination history. The employer and employee/applicant should engage in the ADA interactive process to determine if the accommodation request is reasonable and necessary under the circumstances. The employer should consider the employee’s job and the work environment when determining whether a deviation from any no-animal policy is feasible. Further, the employer can seek other information needed for determining whether the animal will cause undue hardship, such as health or safety issues, or workplace disruptions.
Under the ADA, qualified disabled individuals are entitled to reasonable accommodation necessary to permit them to perform the essential functions of their position, but are not guaranteed his or her preferred accommodation. Therefore, if there is an alternative solution that would allow the employee or applicant to perform the essential functions of the job—other than an exception to the employer’s no-animals policy—the employer can offer that other accommodation instead of allowing the animal in the workplace. Employers should however tread carefully when denying a disability request involving an animal, particularly a trained service animal, because in most cases the service animal may be the only reasonable accommodation available due to the unique and personal circumstances involved in such cases.
With that said, employers are free to set ground rules for the animals and their owners in the workplace. Employers can require that the animal does not damage property, cause disruptions, or endanger the health or safety of anyone on the premises. Further, employers can require that the animals be house-trained and free from offensive odors. Employers should also outline their policy regarding supervision of the animal to ensure that the owner always has direct control and that no one else other than the owner becomes responsible for taking care of or watching the animal at the workplace. All expectations and policies regarding service animals should be explained clearly to employees to avoid miscommunications or confusion.
How to Handle the Impact on Coworkers
A common challenge that arises when employers allow service or emotional support animals in the workplace is the impact on other coworkers. For example, some employees may be extremely afraid of or allergic to the animal. Although such circumstances are not a proper reason to deny an accommodation request involving an animal, employers should work with all employees involved to find a solution that works for everyone. If an employee indicates that he or she has an allergy or phobia related to the animal, the employer should attempt to accommodate that employee, and should be careful not to prioritize one employee’s disability over another’s. There are a number of ways that employers can separate and protect both employees, such as providing private workspaces, allowing telecommuting, restricting the animal from certain areas, or providing air cleaners to reduce animal dander.
Further, employers should consider educating the other employees about the dos and don’ts of interacting with service or emotional support animals so they do not interfere with the animal’s work or cause workplace disruptions. Employers must however also bear in mind that the ADA requires a certain level of confidentiality that limits an employer’s ability to disclose specific information to coworkers about another employee’s (or applicant’s) disability and accommodations. Employers should be mindful of these restrictions, and when possible, should work with the disabled employee to help educate and inform other coworkers about the animal’s role and restrictions.
Because this issue remains a nebulous area of law, employers should consult with counsel to ensure compliance in their particular jurisdiction and under their specific circumstances when confronted with a request for an accommodation involving service or emotional support animals.