ADA in the news July 11, 2019

Settlement Agreement: CJ Spa Group, Inc.

Authorities said the complainant, who was not identified, went to the spa in July 2017 with a friend for a massage at the facility in Los Angeles's Westlake neighborhood.

A spa in Los Angeles has agreed to change its policies and pay damages to a blind man denied access to the facility on grounds "his kind" would not be able to follow instructions.

Spa Palace, which is operated by CJ Spa Group Inc, settled the case with the US Department of Justice after the man filed a complaint.

Authorities said the complainant, who was not identified, went to the spa in July 2017 with a friend for a massage at the facility in Los Angeles's Westlake neighborhood.

An employee informed him that he could not enter the facility or receive a massage as "his kind" would not be able to follow instructions and the massage therapist could not care for him, a Department of Justice statement said.

The pair left but received a call 45 minutes later from another spa employee who said they could return and receive a massage. They declined the offer.

Spa Palace claimed that the man was not denied service but was told that he would need to be accompanied by his friend at all times while in the facility a policy that will now be changed.

"Individuals with disabilities, including those who are blind, should not be excluded from activities or services on the basis of stereotypes or false assumptions," US Attorney Nick Hanna said in a statement.

"My office will continue to enforce the law to ensure equal treatment for people with disabilities."

In addition to changing its policy concerning people with disabilities, the spa has agreed to pay $5,000 in damages to the complainant and a civil penalty of $5,000 to the US Treasury.​

Why Are Employers Testing Job Applicants for Prescription Medications?

Workforce Management

Unless you have a legitimate reason to hunt for prescription medications that could impair an employee’s ability to safely perform their job, the risks of the test severely outweigh any benefits to gain.

How to Disclose a Disability to Your Employer (and Whether You Should)

The New York Times

If you, like thousands of others, live with a visible or invisible disability, here’s what you need to know if you want to tell your employer.

Second Circuit Court of Appeals Recognizes Hostile Work Environment Claim Under the ADA


Q. An employee at one of my company’s facilities in New York recently complained to his supervisor that his coworkers made fun of his disability. Can an employee with a disability file a “hostile work environment” claim under the Americans With Disabilities Act?

A. On March 6, 2019, the Second Circuit Court of Appeals ruled for the first time that hostile work environment claims are available to plaintiffs under the Americans with Disabilities Act (ADA). With its decision in Fox v. Costco Wholesale Corporation, the Second Circuit joins the Fourth, Fifth, Eighth and Tenth Circuits, which likewise have found that hostile work environment claims are cognizable under the ADA.

In Fox v. Costco, the plaintiff suffered from Tourette’s syndrome and obsessive-compulsive disorder, conditions which manifested in verbal tics and other behavioral issues. He alleged that, following a change in management, he was subjected to a hostile work environment by a new manager, who reprimanded the plaintiff for his work on certain tasks that non-disabled individuals performed in the same way but were not reprimanded for. Later, the employer disciplined the plaintiff following complaints from customers regarding his behavior, which included an incident where he told a customer that she was “the love of his life.” After investigating these incidents, the employer suspended the plaintiff for several days and transferred him to another job with the same pay and benefits.

Even after the transfer, however, the plaintiff alleged that his new supervisor made harassing comments to him. In addition, his coworkers began mimicking his behavioral tics, allegedly taunting him with comments such as “hut-hut-hike,” a mocking reference to a behavioral tic in which plaintiff sometimes crouched like a football player to touch the floor before moving forward. The plaintiff alleged that the employer’s managers witnessed these comments over a period of “months and months,” but failed to act. After plaintiff had a panic attack at work one day, he went out on indefinite medical leave and did not return to work.

The district court granted summary judgment to the employer on the plaintiff’s claims for hostile work environment, disparate treatment, failure to accommodate, and retaliation under the ADA and New York State Human Rights Law. Regarding the hostile work environment claim, the district court found that the plaintiff failed to prove that the alleged conduct was sufficiently “severe and pervasive” because he offered no details regarding the persistence of the “hut-hut-hike” comments, such as how many times the comments were made per shift, week and/or month. The district court also ruled that the conduct and comments at issue were not objectively hostile and abusive.

On appeal, the Second Circuit affirmed the district court’s grant of summary judgment with respect to the plaintiff’s claims for disparate treatment, retaliation, and failure to accommodate. However, the Second Circuit also found that the plaintiff offered enough evidence to present the claim to a jury to decide “whether the frequency and severity of the mockery rose to the level of an objectively hostile work environment.” Specifically, the plaintiff’s testimony that his coworkers mocked his disability for months—in the presence of managers who did nothing to prevent the comments—was sufficient to defeat summary judgment.

The court based its decision on the plain language of the ADA, which prohibits employers from discriminating “against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” As the court explained, this language was borrowed from Title VII, and since the ADA “echoes and expressly refers to Title VII” and Title VII allows for a hostile work environment claim, the same standard should be applied to a hostile work environment claim under the ADA.

Having found that the ADA can serve as a basis for a hostile work environment claim, the court proceeded to analyze whether the plaintiff presented evidence that the alleged harassment was sufficiently severe or pervasive to meet the standard. The appeals court rejected the district court’s finding that the plaintiff was required to present specific evidence “regarding the number of times the comments were made per shift, week and/or month” in order to show that the harassment was pervasive. In this respect, the Second Circuit explained, “[t]he district court demanded too much of [plaintiff].” Instead, the plaintiff was required to demonstrate only that the conduct he complained about was “objectively abusive.”

In light of this decision, now may be a good time to emphasize to managers and supervisors that they must take action if they become aware of employees making inappropriate remarks in the workplace based on an individual’s protected status, including disability.

Judge finds witness tampering in ADA lawsuit

The Almanac Online

Two defendants have been caught tampering with a witness in a lawsuit against a San Jose law firm that has sued thousands of California small businesses for minor accessibility violations. A federal judge last month determined that an attorney and a compliance consultant linked to the Mission Law Firm had illegally eavesdropped on a phone call with a witness and later coached him to act dumb on the stand.

Kroger to Pay $40,000 to Settle EEOC Disability Discrimination Lawsuit

Cincinnati-based national grocery store chain Kroger will pay $40,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

According to the EEOC's lawsuit, Kroger offered Michael Haugabrook a courtesy clerk position at its Jonesboro, Ga., store on or about March 15, 2016. Haugabrook accepted the position and was required to attend an orientation session on March 23. Due to his visual impairment, Haugabrook requested an accommodation to complete the computer-based portion of the orientation. Kroger's management refused to accommodate him. While Haugabrook was completing the computer assessment, he was summoned to the store manager's office where he was immediately fired, the EEOC said.

Refusing to accommodate an employee and terminating him based on assumptions about his disability violate the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Northern District of Georgia (EEOC v. The Kroger Co., Case No. 1:18-cv-03095-WMR-AJB) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $40,000 in monetary relief, the consent decree settling the suit requires Kroger to make significant changes to its new-hire process, including but not limited to providing employees with vision disabilities access to tools and resources such as magnification for its computer-based and written onboarding and training programs. To prevent similar discrimination against future vision-impaired employees, Kroger will educate its workforce on disability discrimination via training at its Jonesboro location. For the decree's duration, Kroger will post a notice to its employees about the lawsuit and report to the EEOC all employee requests for an accommodation under the ADA.

"All too often we see individuals with disabilities who are detrimentally impacted by assumptions and stereotypes in the workplace," said Antonette Sewell, regional attorney for the EEOC's Atlanta District Office. "This settlement will assist the company in complying with the ADA by fully understanding its protections for workers with disabilities and the company's responsibility to engage in an interactive process and provide reasonable accommodations."

Darrell Graham, acting district director of the Atlanta office, added, "Discrimination against people with disabilities continues to be a serious and pervasive problem. Kroger's agreement

Employer Not Required to Provide ADA Accommodation of Choice to Disabled Employee

While the Americans with Disabilities Act requires that an employer provide a disabled employee a “reasonable accommodation,” it is important to keep in mind that an accommodation need only be “reasonable”—and need not be the one preferred by the employee in question.

Tips for Creating ADA Compliant Content


The Americans with Disabilities Act (ADA) was signed into law by President George H.W. Bush in 1990 to provide people with disabilities sufficient access to public areas. When this law was passed, the internet did not exist as we know it today. Given the ubiquity of the web in our society, Congress and the courts have extended the ADA to address websites and web applications, like digital editions.

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