ADA in the News January 31, 2020

BLI Northwest & Successor Harris Pacific Northwest to Pay $100,000 and Provide Other Relief to Settle EEOC Disability Discrimination Suit

According to the EEOC's suit, Angela Watson was dispatched by her union to work on a project for Diamond B Constructors 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 BLI Northwest and Harris Pacific Northwest, LLC 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."

EEOC Seattle Field Director Nancy Sienko said, "Epilepsy reportedly affects 2.2 million Americans and affects each person differently. It is critical that employers not base job decisions on stereotypes, but instead carefully consider each individual's abilities."

L+M Settles Federal Disabilities Act Complaint By Deaf Patient

A profoundly deaf patient filed the complaint after the hospital failed to provide a sign language interpreter, as required by federal law.

Student who says he needed more time on test sues Miami Dade College under disability law

A disabled student has filed a federal lawsuit against Miami Dade College alleging he was not allowed an accommodation of additional time to complete a test, states a nine-page complaint filed in Miami District Court.

The plaintiff, identified as “A.D.,” says he was denied additional exam time even though the college’s disability services offices granted him an accommodation for more time. He attends classes at MDC’s Wolfson campus.

The student is suing under the Americans with Disabilities Act, a civil rights law enacted in 1990 that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation and all public and private places that are open to the general public. He filed the suit on Nov. 15, 2019.

Student Sues College, Claiming Discrimination Over Dairy Allergy

A high-achieving student is taking legal action against the college of her dreams, charging that she has been discriminated against because of her severe allergy to dairy.

The 20-year-old from Pennsylvania, who’s called Jane in court documents for privacy, has launched a lawsuit against the University of Kentucky.

The college gave assurances that her need to completely avoid dairy in her diet could be met. However, Jane alleges that’s not so, and that the University of Kentucky (UK) has failed to provide adequate accommodations to allow her to attend and eat safely. 

Disability advocates pleased with settlement over accessibility violations at NDSU arena

Under the agreement, North Dakota State University must make the modifications by the end of this year.

Former employee sues Lee Co. over ADA complaint

A former employee of the Lee Co. has filed a lawsuit alleging he was fired after he disclosed a disability and requested an accommodation. 

Nashville resident Paul Schuster notified his bosses about his autoimmune disorder diagnosis and was in the process of filling out paperwork with the company's health care provider when he was terminated from his job, according to the complaint filed Jan. 23 in the U.S. Middle District Court of Tennessee.

"Lee Company failed to engage in a good faith interactive process with Mr. Schuster and instead regarded him as disabled and retaliated against him for requesting an accommodation," his legal team from Collins & Hunter wrote in the complaint. "As a result, Lee Company violated Mr. Schuster’s rights under the Americans with Disabilities Act and the Tennessee Disability Act."

DOT Proposal Restricts Service Animals on Planes: So Long to the Emotional Support Peacock?

Presently, the ADA prohibits a place of public accommodation from requiring, or even requesting, any documentation relating to the legitimacy or behavior of a service animal. Thus, the proposed DOT amendments, if finalized, will not directly impact service animals in the public accommodation context. However, with the increased incidence of service animal fraud in places of public accommodation, we may begin to see calls to tighten regulations, especially with respect to documentation.

The Current State of Website Accessibility for Disabled Individuals - Zenyth Group CEO Daryn Harpaz

The relationship between technology and autism services has been a focus of my thinking and writing lately. It’s an urgent topic that I feel deserves attention, but it’s also led me to a broader conversation about inclusivity (or lack thereof) of technology for the larger disabled community. As our lives become increasingly enmeshed with technology—phones at our fingertips, brick and mortar retail locations rapidly disappearing, the supremacy of social media and e-commerce—the need for technology that can accommodate the disabled community is at once something that must be a priority, yet is often either left ignored by businesses or unaddressed because they lack the knowledge and ability to make their websites ADA compliant. 

Website Accessibility is More Important Than Ever

For most internet users, website accessibility is expected. For example, if someone goes to Target’s website, they will expect to be able to see products, compare prices, and order online.

For people living with disabilities, this expectation is completely washed away. According to the World Health Organization, around 15 percent of the world’s population is made up of people with cognitive and/or physical disabilities. Depending on the extent or severity of a disability, website or internet access in today’s world might be completely out of the question.

But it doesn’t have to be. 

Websites today can be designed with all people in mind using a practice called Universal Design. By designing a website or interface with everyone, including those with disabilities, in mind, brands can fully capitalize on their potential market.

Many websites, even from top brands around the world, still aren't designed and coded so that people with disabilities, ranging from visual to auditory to cognitive, can use them. Why is this a big deal? First, big brands often set the standard for many smaller brands. Building a website with universal design in mind might be viewed as a cost barrier unless the standard has been set.

For many brands, their website is a home base for their customers. They’ve invested countless hours and money into creating the final product. Going back and redesigning their website for universal accessibility is seen by many as an unnecessary cost for a website that is already functioning for their core audience. However, the cost is anything but unnecessary.

The Americans with Disabilities Act. 

When the Americans with Disabilities Act (ADA) was passed in 1990, Congress was hardly considering the internet as a vehicle for so much change. The internet was still relatively new, and there was no way to predict just how pervasive and essential it would be in the world today.

It’s nearly impossible to do anything today that the internet does not influence in some capacity, and that’s where the ADA comes into play. Because the internet plays such a pivotal role in the day-to-day lives of people all over the world, it must also be a space easily accessed and used by people with disabilities.

According to the Pew Research Center, Americans with disabilities are nearly three times as likely to never go online and around 20 percent less likely to have regular internet access through a computer, smartphone or tablet. This isn’t on accident. Because of the restrictive nature of the internet today, many people with disabilities simply don’t see a point.

Redesign your website for accessibility.

The bottom line is that the ADA covers the digital landscape as well through using the Web Content Accessibility Guidelines (WCAG). These guidelines are part of a series of web accessibility guidelines published by the Web Accessibility Initiative of the World Wide Web Consortium, the main international standards organization for the Internet.

Sooner or later, every brand will need to go back and redesign their sites for accessibility using WCAG guidelines. The guidelines set the bar for all websites and following them is essential for success in digital accessibility for all. While universal design used to be an ‘extra’, it’s now a must-have for anything and everything in the digital space.

By building a website with universal design in mind, brands can avoid this type of scenario, and best of all, they can reach the maximum number of potential consumers.

Local company helps disabled navigate the web

Navigating a website is easy for most with just a few clicks of a mouse, but it can be a challenge for people with disabilities -- that's where a new local company is lending a hand.

"Blind people and people with other disabilities need and want to access the internet the same way as everybody else," said Heather Berg, a Colchester resident with a degenerative vision disease.

That's where the local company Accessible Web comes in. The Burlington web-developer created inclusive websites that include zooming, screen reading and closed captioning capabilities, to name a few.

Coronavirus: Employer Liability Issues

By now, the worldwide health authorities and media have publicized the 2019 Novel Coronavirus (2019-nCoV) (sometimes called Coronavirus) (the “virus” or “disease”) that has been first identified in Wuhan, Hubei Province, China.  Although the United States has only experienced several cases of the virus, it is only a matter of time before the disease surfaces in more cases throughout the country.  Given high density areas of human contact such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.

Coronavirus: What employers need to know about travel restrictions

With an active flu season well underway and concern growing over the spread of potentially deadly coronavirus infections outside of China, it’s a good time to re-emphasize your contagious disease health response plan with all of your employees.

The Centers for Disease Control has numerous wellness and safety templates and information packets you can customize and distribute to your team.

But there are also potential legal risks associated with outbreaks like the coronavirus. Check with counsel and your insurance partner to be sure you have covered all your bases, but here are three top-line travel-related considerations:

  1. Sending an employee to a high-risk area during this outbreak creates legal exposure under OSHA’s General Duty Clause.  A travel ban is in effect for the epicenter of this outbreak in Wuhan, Hubei Province, China. But cases of the disease are already confirmed well outside of China and history shows that travel bans are ineffective at slowing the spread of easily transmitted viruses. Employers whose business involves travel to China or other areas subject to travel restrictions should explore alternatives for the duration of the threat, such as videoconferencing.
  2. Personal travel gets even more tricky, because it brings in the ADA. Demanding employees restrict private activities, including travel to high-risk areas, out of fear they might later become ill or disabled, might expose you to a disability discrimination claim. Provide all information, share expert recommendations, but avoid banning personal travel outright.
  3. An important caveat: You can require that anyone traveling to those areas or who is otherwise at higher risk of exposure get examined before returning to work. Not everyone infected with the virus will show symptoms but they will still pose a risk of infecting others. ADA’s prohibitions on medical inquiries and required exams stop when an employee might pose a direct health threat to others.

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