ADA in the News January 8, 2020

ADA Title III Compliance for Restaurant Websites and Apps

Title III of the Americans with Disabilities Act (ADA) prohibits places of public accommodation from discriminating against individuals with disabilities. By now, most restaurants have become familiar with Title III compliance when it comes to modifying facilities and procedures – enabling disabled patrons to have equal access to goods and services. Restaurants, however, may not have considered whether their websites are equally accessible under ADA Title III. 

What Makes An Undue Hardship In Religious Accommodation? Change May Be On The Horizon

Employers subject to Title VII of the Civil Rights Act of 1964 and most state laws understand that they have an obligation to reasonably accommodate the religious beliefs of their employees, unless such accommodation constitutes an “undue hardship.” But just what does that term mean in the context of religious accommodation? And, could we see change coming?

Title VII of the Civil Rights Act of 1964 generally prohibits employment discrimination against an employee because of such individual’s religion. While most people understand that prohibition to mean that an employer cannot discriminate against an employee because he or she practices or belongs to a certain religion, or because he or she practices or belongs to no religion at all, there is a second component to Title VII’s ban on discrimination on the basis of religion – the mandate that an employer make a reasonable accommodation for an employee’s religious belief, observance, or practice. Thus, an employer must provide reasonable accommodations for, for instance, an employee whose religious beliefs do not allow her to work on the Sabbath, who needs breaks during the day to engage in prayer, or whose religion requires them to wear certain articles of clothing.

The requirement to reasonably accommodate, however, is not unlimited, as Title VII states that the duty to reasonably accommodate need only take place if the accommodation does not place an “undue hardship” on the operation of the employer’s business.
The term “reasonable accommodation” is likely familiar to most employers because of the duty to reasonably accommodate the disabilities of a qualified individual. Like Title VII, the Americans with Disabilities Act (ADA) has a similar provision that allows an employer to reject a proposed accommodation if the accommodation would cause an “undue hardship” on the employer’s operations. Interestingly, however, the interpretation of these similar terms by the courts has diverged.

In Trans World Airlines v. Hardison, the United States Supreme Court interpreted the term “undue” in Title VII to mean “more than a de minimis,” or trivial, cost to the employer. Since the Hardison case was decided in 1977, courts have continued to follow the de minimis language from that case. While disputes arise over what is “de minimis,” what is certain is that “de minimis” is a much lower standard than the burden on employers in disability accommodation cases, where “undue hardship” means “an action requiring significant difficulty or expense.” Thus, an employee who seeks to be excused from working on the Sabbath could see his request rejected if, for instance, the employer had to pay another employee overtime to cover that shift, as such would likely be considered more than “de minimis” and an undue hardship on the employer, no matter its size or resources.

That interpretation, however, may not be long for this world. In the case of Patterson v. Walgreen Co., the federal government has filed an amicus brief with the United States Supreme Court, asking it to, among other things, revisit theHardison “de minimis” standard and overrule it to bring it more in line with the ADA’s standard of “an action requiring significant difficulty or expense” and to require the consideration of, among other factors, the employer’s financial resources. If this becomes the standard, religious accommodation requests will have to be evaluated much like those in disability accommodation cases, which would be a significantly higher standard than the current one, would impose a greater burden on employers, and make a rejection of a proposed accommodation more difficult to defend.

No matter whether the United States Supreme Court accepts certiorari in Patterson and, if so, what its ultimate ruling on the “undue hardship” issue is, the obligation remains for employers subject to Title VII and corresponding state laws to accommodate the religious beliefs, observances, and practices of its employees. Such accommodation can be complex, emotional, and disruptive, and any of the listed attorneys here can guide you through that process.

Cutter Mazda of Honolulu Settles EEOC Disability Discrimination Case

The EEOC alleged that Cutter Mazda failed to hire a deaf applicant due to his disability. Such conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from making employment decisions based on an individual's disability.

The EEOC filed suit in the U.S. District Court for the District of Hawaii (EEOC v. MJC, Inc. and GAC Auto Group, Inc. DBA Cutter Mazda of Honolulu, et al, Case No. 1:17-cv-00371, after first attempting to reach a pre-litigation settlement through its conciliation process.

The parties entered into this Settlement to confirm that Cutter Mazda has not and will not engage in or be a party to any action, policy or practice that is intended or is known to them to have the effect of discriminating against any employee or prospective employee on the basis of a disability and/or a perceived disability.  As part of the resolution between the parties, Cutter Mazda reaffirmed that it does not tolerate discrimination against employees and/or job applicants. In addition to $42,000 in monetary relief, the two-year settlement resolution includes actions implemented by Cutter Mazda aimed at better preventing instances of alleged workplace discrimination. Cutter Mazda has agreed to provide enhanced ADA training to its employees by its employment counsel. Cutter Mazda will also train its human resources and supervisory/managerial staff on how to better assess and engage in the interactive process and how to better consider an individual with a disability for employment during the interview or hiring process. Additionally, Cutter Mazda committed to train its management and human resources employees on deaf culture, with training to be provided by the State of Hawaii's Disability and Communication Access Board (DCAB). Cutter Mazda has agreed to increase their recruitment and hiring efforts by notifying the State of Hawaii's Division of Vocational Rehabilitation of Cutter Mazda's ongoing intent to recruit and accept job applications on a rolling basis from deaf individuals for all entry level jobs.

"We encourage employers to actively recruit and hire deaf individuals.  Seventy percent of individuals with disabilities remain unemployed, so we encourage efforts by employers to open up employment opportunities," said Anna Park, regional attorney for the EEOC's Los Angeles District, which includes Hawaii in its jurisdiction.

Glory Gervacio Saure, director of the EEOC's Honolulu Local Office added, "Providing training and opportunities for employees to learn about different cultures and communities can dispel stereotypes and create a more inclusive work environment. We commend Cutter Mazda for its ongoing equal opportunity efforts and agreeing to host such training sessions with its employees and encourage other employers to consider doing the same."

As identified in its website,, Cutter Mazda including GAC Auto Group, sells new and certified pre-owned vehicles, provides vehicle finance services, along with automobile repair parts and services.

Eliminating barriers in hiring, especially hiring practices that discriminate against people with disabilities, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP). 

Longtime Walmart employee claims company discriminated in firing

A 25-year employee of Walmart in Sioux Falls has filed suit against the company, alleging it violated federal law when it fired her after refusing to accommodate her disability.

Teresa Miles, who suffers from epilepsy, began working for the Walmart on South Louise Avenue in 1993. During the course of her employment, the lawsuit says, she had numerous contacts with supervisors and had notes from doctors who indicated she should not be forced to work in high-stress, chaotic jobs. Those included working as a cashier or in the electronics department.

For the majority of her career, she worked as an overnight stocker. At times she would be directed to stock in various departments. During the course of her employment, she received “multiple pay raises and satisfactory performance reviews.”

In 2011, the lawsuit says, she suffered a seizure after working in the electronics department. In 2016, Walmart stopped accommodating her disability.

Tearing Up the Litmus Test: Potential Problems with Testing Employees for Marijuana Use

Employers with 15 or more employees must provide reasonable accommodations to employees with disabilities unless an accommodation presents an undue hardship. Of course, you would have the right to ask Mr. Hempster to provide a medical certification from his health care provider to make the determination that a disability accommodation is required. Nevertheless, a zero-tolerance policy against use of lawful hemp-derived CBD products may raise an issue under this federal law.

The 10 Best States for Disability Employment

THIS YEAR MARKS THE 30th anniversary of the Americans with Disabilities Act, signed by former President George H.W. Bush in 1990 to outlaw discrimination based on disability.

Still, people with disabilities are far more likely than nondisabled people to be unemployed. According to the U.S. Census Bureau's American Community Survey in 2017, people with disabilities were about 2.5 times as likely to be unemployed than people without disabilities.

U.S. Department of Labor Launches Yearlong Celebration of Americans with Disabilities Act’s 30th Anniversary

The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) announced plans for a yearlong celebration of the Americans with Disabilities Act (ADA). Centered around the theme of “Increasing Access and Opportunity,” commemoration activities will include events, speeches and new compliance assistance resources. The ADA’s anniversary will serve as a key component of the National Disability Employment Awareness Month (NDEAM) observance in October.

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