ADA in the News: January 8, 2018

Project Civic Access Agreement: The City and County of Denver, Colorado

Supreme Court Rejects Disabled Employee's Bid to Revive His $2.6 Million ADA Jury Verdict: Why You Should Still Regularly Update Job Descriptions and Supporting Documents


On October 16, 2017, the Supreme Court rejected an employee’s petition for review of a decision in Stevens v Rite Aid Corporation.[1] Stevens sued under the Americans with Disabilities Act (“ADA”) for alleged discriminatory discharge claiming trypanophobia or “fear of needles” as a disability. Rite Aid discharged Stevens, a pharmacist of 32 years (with Rite Aid and its predecessors), after he refused to comply with Rite Aid’s requirement that pharmacists administer immunization injections to its customers. The Second Circuit held that administering injections was an essential function of the pharmacist position at the time of his termination, and therefore, concluded that Stevens was not a “qualified individual” with a disability.

At trial, Rite Aid personnel testified that the company made a business decision to start requiring pharmacists to perform immunizations. While courts are required to consider a variety of factors under Equal Employment Opportunity Commission’s (EEOC) regulations, many courts give substantial or “considerable” deference to an employer’s business judgment and written job descriptions. Following this deferential standard, the Second Circuit reversed entry of judgment in Stevens’ favor and ordered the district court to vacate the jury’s $2.6 million award and enter judgment for Rite Aid as a matter of law on his claim of disability discrimination.

The Second Circuit is in line with other circuits, including the Fifth, Eighth, and Tenth Circuits, which have concluded that considerable or substantial deference to an employer’s business judgment about essential functions and its written job descriptions is required. However, some circuit courts—like the Sixth Circuit—may give other factors greater or equal consideration, such as the time a person actually performs a function and the work experience of past or current incumbents in similar jobs.

The Supreme Court’s denial of certiorari underscores a growing belief that in the post- Americans with Disabilities Act Amendments Act (“ADAAA”) of 2008 world, an employee may be legally “disabled” pursuant to a very broad definition of disability. Such employees, however, must meet their burden in proving they are qualified individuals with disabilities. Indeed, the Second Circuit assumed “trypanophobia” was a disability under the ADAAA. The only issue was whether, given this disability, Stevens could perform the essential duties of his job.

In light of the focus of disability discrimination and failure to accommodate claims, employers should:

1) continue to regularly update job descriptions to describe the essential functions of a position;

2) ensure that job descriptions are written for jobs or classes of jobs;

3) require that employees acknowledge such job descriptions; and

4) contemporaneously document the business reasons for concluding that a function is essential, particularly where the function is a “new” one.

These practices will assist employers and employees by avoiding ambiguities about job requirements. In Stevens, for instance, the trial court admitted into evidence an updated job description—revised only a few months before Plaintiff’s termination. The revised policy was the result of Rite Aid’s business judgment that it wanted customers to have access to immunizations 24 hours a day. Ultimately, this proved dispositive in overturning the jury’s multi-million dollar award.

Thus, despite the EEOC’s guidance requiring a multi-factor analysis to determine whether a function is essential— such as evidence in Stevens that employees spent only a small amount of time giving vaccinations— such job descriptions are now more critical than ever.

Disabled woman accuses convenience story of violating ADA

Northern California Record

A special education teacher with disabilities is suing the tenant and landlord of a Modesto convenience store, alleging disability discrimination and failure to uphold Americans with Disabilities Act regulations.

Cynthia Hopson, who requires use of a mobility scooter, filed a complaint Dec. 25 in U.S. District Court for the Eastern District of California Fresno Division against Astifnas Albert, Christopher Albert, NL and Sons Inc., doing business as Stop and Shop, Miguel Angel Toscano, Rosalinda Toscano and Does 1-50, alleging they failed to provide full and safe equal access to their facilities.

According to the complaint, in 2016, Hopson was denied full and equal access to the facility at 5913 McHenry Ave., Modesto. The suit says she experienced difficulty, discomfort, or embarrassment, while going to the business owned by the defendants due to the improper slope in the parking area and an unlabeled parking stall. 

The plaintiff alleges the defendants failed to design and construct the premises to be accessible to and accommodate persons with disabilities, and denied Hopson the opportunity to participate in or benefit from the goods, services and privileges being offered.

Hopson seeks trial by jury, injunctive relief, all damages, statutory damages of no less than $4,000 per violation, litigation expenses, costs of action, attorney fees and all further relief the court deems just. She is represented by attorney Daniel Malakauskas of Las Vegas.

U.S. District Court for the Eastern District of California Fresno Division Case number 17-cv-01745

Alleged harasser is a victim of -- ADA "associational" discrimination?


I do not think "associational discrimination" means what you think it means.

Amber Bridges, a former employee of the Magistrate's Court in the City of Indianapolis, claims she was discharged because of her association with a co-worker who was regarded as having a disability within the meaning of the Americans with Disabilities Act.

(I'm not going to link to the lawsuit because it gratuitously identifies the co-worker by name.)

An "associational discrimination" claim does exist under the ADA, of course. The classic scenario (included in guidance issued by the Equal Employment Opportunity Commission) is an employer who terminates an employee whose family member has a disability, out of fear that the family member's condition will cause the employer's insurance premiums to go up. Another example would be an employer who terminates an employee because he or she is the partner of someone with AIDS or HIV.

But Ms. Bridges doesn't allege anything like that. Her "association" consists of being the alleged harasser of the co-worker with the disability.

Chutzpah is "that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan." -- Leo Rosten

According to the lawsuit, the co-worker had an "obnoxious body odor" that offended Ms. Bridges and caused other employees to complain. Ms. Bridges told her supervisor, and then went out and purchased air fresheners for everybody to use. Other employees later brought in more air fresheners.

One day, Ms. Bridges was informed that the co-worker had complained about the omnipresent air fresheners and said that Ms. Bridges was creating a hostile work environment. Moreover, other employees had allegedly complained that Ms. Bridges "instigat[ed]" and "perpetuat[ed]" gossip about the co-worker. Ms. Bridges' employment was terminated that day.

If the "associational" provision of the ADA protects individuals who harass or discriminate against persons with disabilities, I'll eat my hat.

Time for a motion to dismiss and a judicial smackdown. Judge William C. Griesbach, don't fail us!

Disability discrimination: Employment tribunal was right to find perceived disability discrimination


In this case the EAT upheld an employment tribunal decision that a police officer, who was turned down for a transfer because of hearing loss had suffered direct discrimination because of a perceived disability.

Getting Ahead of ADA Website Accessibility Lawsuits

I’m going to start this post in a way that most of you may find surprising. I want to thank Kylie Jenner. You see, for over a year now I have been telling clients, other lawyers, and family members (who politely nod because they still don’t quite understand what I do for a living) that companies need to make sure their websites are ADA compliant. This usually leads to a crass conversation about how a website can even be ADA compliant. But recently, I received a text message from a friend with a link to a piece entitled, “Kylie Jenner’s Cosmetics Website Sued for Not Being Accessible to Blind Customers.” My friend’s text said, “This what you have been talking about!” The exclamation mark made my day. Yes, this is what I have been talking about! And while most of you have likely never heard of Just Jared, it is high time we talk about ADA website compliance and website accessibility.

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