ADA in the news July 31, 2019

ChenMed, LLC and PMR Virginia Holding, LLC. Pays $200,000 to Settle EEOC Disability Discrimination Lawsuit

According to the EEOC's lawsuit, Trudy Jelderks was hired in August 2013 as a market sales manager (MSM) for the Tidewater, VA market. In June 2014, Jelderks was also assigned to cover the Richmond, VA market. Approximately two months later, Jelderks informed her employers she had colon cancer. Shortly after disclosing her diagnosis, she was removed from the Richmond market.  Jelderks was then hospitalized due to her colon cancer that October. During her hospitalization, Jelderks was pressured by the chief medical officer (CMO) to voluntarily give up her MSM duties, which she refused to do. Jelderks complained to the human resource office about the CMO's request during her hospitalization. Approximately one month later, the companies fired Jelderks because of her disability and in retaliation for her complaints about the CMO's discriminatory conduct. 

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on an individual's disability. The EEOC filed suit in the U.S. District Court for the Eastern District of Virginia, Norfolk Division (EEOC v. ChenMed, LLC and PMR Virginia Holding, LLC, Civil Action No. 2:18-cv-00516) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to providing monetary relief for Jelderks, the companies entered into a two-year consent decree requiring them to re-distribute their formal, written anti-discrimination policy. The decree further requires the companies conduct anti-harassment training for their officers, managers, supervisors and employees, post certain documents, and provide periodic reports to the EEOC.

"Employees who have cancer or have cancer in remission, are covered by the ADA's prohibition on disability discrimination," said Kara Haden, supervisory trial attorney with the EEOC's Charlotte District Office. "This case highlights the ADA offers protection to employees during all stages of a disability and to those employees who complain about disability discrimination."

EEOC Sues American Security Insurance Company for Disability Discrimination

According to the EEOC's suit, Donna Stephens worked for the company as a senior processing clerk for almost 23 years. As a result of complications with Type II diabetes, Stephens requested an accommodation - to work from home.  After Stephens' accommodation request was granted, her supervisor constantly chastised her for teleworking, criticized her performance without basis, and finally fired her.

Such conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from making employment decisions based on an employee's disability. The EEOC filed suit (Civil Action No. 1:19-CV-3411-AT-JKL) in U.S. District Court for the Northern District of Georgia, Atlanta Division after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking back pay, front pay, compensatory and punitive damages for Stephens, as well as injunctive relief to prevent future discrimina­tion.

"After working for the company for more than 20 years and surviving a myriad of health issues, the company rewarded Ms. Stephens's hard work and loyalty by firing her -- simply because she exer­cised her right to a reasonable accommodation," said EEOC Regional Attorney Antonette Sewell. "The ADA was created to prohibit just this type of discrimination against employees, and the EEOC will keep enforcing it."

Darrell Graham, director for the EEOC's Atlanta District Office, added, "Employees with disabilities continue to face unnecessary and discriminatory obstacles in the workplace. The EEOC is empowered to fight for the rights of people like Donna Stephens and committed to enforcing federal civil rights laws in the workplace."

EEOC Sues Medtronic for Disability Discrimination

According to the EEOC's complaint, Jackson was placed to work at Medtronic's Greenwood facility as a forklift driver / waste hauler by a temporary staffing agency on Oct. 3, 2016. The EEOC said Medtronic required temporary employees to follow the company attendance policy. Jackson, who was born with one kidney and an under-formed bladder, missed work due to health issues caused by her disability. The EEOC said that on Feb. 10, 2017, Jackson returned to work following a disability-related absence for which Jackson presented a doctor's note. Medtronic terminated Jackson's assign­ment that same day, asserting that Jackson was in violation of its attendance policy. The EEOC further alleges that Medtronic did not hire Jackson as a permanent employee because of her disability, despite being in the process of doing so prior to her termination.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and requires employers to provide reasonable accommodations to qualified individuals with a disability unless doing so would be an undue hardship. The EEOC filed suit in U.S. District Court for the District of South Carolina (EEOC v. Medtronic, Inc., Civil Action No. 8:19-cv-02100-HMH-TER) after first attempting to reach a pre-litigation settlement through its concili­ation process. The EEOC seeks back pay and compensatory damages and punitive damages, as well as injunctive relief.

"Not only does the ADA protect employees, including temporary employees, from disability discrimination in the workplace, it places an affirmative requirement on employers to explore accom­modations to their generally applicable employment policies, such as attendance policies," said Lynette A. Barnes, regional attorney for the EEOC's Charlotte District Office. "An employer simply cannot ignore an employee's need for a reasonable accommodation of a disability, choosing instead to fire the employee."

EEOC Sues Groendyke Transport / McKenzie Tank Lines for Disability Discrimination

According to the EEOC's suit, the two employees were terminated on July 26, 2017 by McKenzie Tank Lines, now owned by Groendyke Transport, Inc., one of the largest tank truck carriers in the United States, whose headquarters is in Enid, Okla. The two employees had worked for McKenzie for decades. One employee, a mechanic in Pensacola, Fla., required leave to address a staph infection that caused nerve damage and required surgery. The other, a truck driver in Houston, required leave due to complications from pneumonia. Both were at home recovering when McKenzie Tank fired them. Both employees would have been able to return to work after just a few more weeks of leave. Instead, the company rigidly applied its leave policy, which did not allow leave beyond the 12-week period provided under the FMLA.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities when they can perform the essential functions of their job with a reasonable accommodation, such as additional medical leave. The EEOC filed suit (EEOC v. Groendyke Transport, Inc. a/k/a McKenzie Property Management, Inc., f/n/a McKenzie Tank Lines, case number 3:19-cv-02830-RV-EMT) in U.S. District Court for Northern District of Florida after the EEOC's Mobile Local Office completed an investigation and first attempted to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay, compensatory damages and punitive damages, as well as injunctive relief.

"The ADA does not permit an employer to rigidly use an internal leave policy to terminate employees whose disability requires them to take additional medical leave," said EEOC Birmingham District Director Bradley Anderson. "Employers are obligated to make exceptions to leave policies and provide additional medical leave as a form of reasonable accommodation unless doing so would result in an undue hardship on the employer."

Marsha Rucker, regional attorney for the EEOC's Birmingham District, said, "Federal law requires employers to make a genuine effort to engage in an interactive process to provide reasonable accommodations to employees with disabilities - such as modifications to inflexible leave policies."

Employer’s Good Deed Goes Unpunished—Reliable Attendance Is Essential Function Despite Prior Accommodation of Employee’s Absences

While it’s true that acts of generosity sometimes backfire on those who offer them, the Court’s ruling in Higgins v. Union Pac. R.R. Co., No. 18-1902 (8th Cir. July 24, 2019) shows this is not always the case.  In Higgins, the Eighth Circuit affirmed summary judgment for Union Pacific—holding that regular, reliable attendance was an essential function of Higgins’ position despite the fact that Union Pacific accommodated Higgins’ poor attendance for over a decade.


Higgins began working as a locomotive engineer for Union Pacific in 1976.  Between 1989 and 1992, he suffered spine injuries while performing his job, which led to chronic back pain.  In 1992, Higgins entered into a settlement agreement with Union Pacific in which he released his personal injury claims in exchange for payment and “the right to lay off whenever his back bothered him.”

For over a decade, Higgins had a high number of missed shifts—referred to as lay-offs—due to his chronic back pain.  Between 2004 and 2014, Union Pacific sent Higgins multiple letters admonishing him for his poor attendance.   Despite these warnings, Higgins’ poor attendance continued.

In 2014, Higgins’ doctor submitted information providing that Higgins’ back condition was the same as it was when he returned to work in the early 1990s and recommended that Union Pacific continue “providing at least 24 hours off between shifts.”  In December 2014, Union Pacific determined that Higgins’ restrictions prevented him from performing his essential job functions, and Higgins was not allowed to return to work.

Higgins then sued Union Pacific for disparate treatment and failure to accommodate under the Americans with Disabilities Act (“ADA”).

Eighth Circuit Decision

Affirming summary judgment for Union Pacific, the Eighth Circuit ruled that Higgins’ ADA claims failed because regular attendance was an essential function of the engineer position, and Higgins was unable to perform that essential function with or without a reasonable accommodation.

The Court explained that “regular and reliable attendance is a necessary element of most jobs,” and found ample evidence it was essential in this case, including (1) Union Pacific’s job description for the engineer position that listed reliable attendance as an essential job function; (2) Union Pacific’s attendance policy, which required employees to be available to work their assignment when scheduled; and (3) Union Pacific’s repeated warnings to Higgins that his attendance was unacceptable.

The fact that Union Pacific previously accommodated Higgins’ back problems by allowing him to miss a large percentage of his shifts did not create a material question of fact regarding whether job attendance was an essential function.  The Court rejected Higgins’ argument that his 1992 settlement agreement, which allowed him to lay off as necessary, superseded Union Pacific’s attendance policy, at least as applied to him.  The Court explained the agreement is “best characterized as an agreement to accommodate Higgins’ chronic back pain rather than an admission that job attendance is not an essential function.”

The Court also rejected Higgins’ argument that his proposed accommodations—laying off as necessary and receiving 24 hours of rest between shifts—were reasonable.  The fact that Union Pacific previously accommodated Higgins’ back pain by allowing him to miss a large percentage of his shifts did not create a material question of fact as to the reasonableness of these requested accommodations.  The Court explained that if an employer “bends over backwards to accommodate a disabled worker,” the employer “must not be punished for its generosity.”


Higgins reinforces the Eighth Circuit’s position that regular, reliable attendance is an essential function of most jobs.  This decision illustrates that a job description identifying attendance as essential, an attendance policy, and enforcement of the attendance policy are strong evidence that attendance is an essential function.  While the Court did not “punish” Union Pacific for its prior efforts to accommodate Higgins, employers should tread carefully in such situations because, depending on the circumstances, a pattern of excusing absences could be viewed as evidence that regular attendance is not an essential job function.

Hirono Co-Introduces Bill to Help Businesses Comply With ADA

Last week, US Sen. Mazie K. Hirono (D-Hawai‘i) was part of a group of Democratic legislators who introduced legislation that would provide business owners financial assistance to renovate their businesses to become compliant with the Americans with Disabilities Act (ADA) and accessible for people with disabilities.

The Disabled Access Credit Expansion Act would also fund programs that mediate ADA-related disputes to avoid additional litigation and help individuals and businesses understand the ADA. US Representatives Donald McEachin (D-Va.) and Jim Langevin (D-R.I.) introduced companion legislation in the US House of Representatives.

“When businesses and infrastructure are not ADA-compliant, everyday tasks can become challenging for people living with disabilities,” Sen. Hirono said. “The Disabled Access Credit Expansion Act will provide funding to small businesses so they can make structural improvements in order to comply with ADA regulations and increase access for people with disabilities. With this bill, our small businesses will be able to better accommodate and include people living with disabilities in our communities and ensure fair and equal access to all Americans.”

The Disabled Access Credit Expansion Act:

Expands the Disabled Access Credit (DAC) by doubling the maximum tax credit and allowing more small businesses to receive it. The Disabled Access Credit Expansion Act would increase the number of eligible expenses businesses can write off while updating their facilities to become ADA-compliant to $20,500, double the maximum credit from $5,000 to $10,125, and expand the definition of small businesses to companies with gross receipts of $2.5 million or less from $1 million or less.

Increases Funding for the ADA Mediation Program by making the Department of Justice’s (DOJ) ADA Mediation Program eligible to receive government funding in order to train contracted mediators and personnel to help individuals with disabilities and businesses reach a resolution without increased litigation. The legislation would appropriate $1 million for the 2021 fiscal year to support these efforts.

Collects ADA Information Line Data by requiring the DOJ to provide to Congress a report on the specific types of calls the ADA Information Line receives in order to improve the ways individuals with disabilities and business owners learn about their rights and how businesses and facilities can become ADA-compliant.

Hospital allegedly asked for note from the Quran to prove worker's accommodation need

Dive Brief:

  • A supervisor at Cooper University Hospital in New Jersey unlawfully asked a Muslim medical assistant to get a note from the Quran when she asked that she be allowed to wear coverings in accord with her religious beliefs, the worker has alleged in a lawsuit filed in a New Jersey district court (Boyd v. Cooper University Hospital, No. 1:19-cv-15452 (D. N.J. July 17, 2019)).
  • Bianca Boyd said she was told that the face covering she wore during Ramadan violated hospital policy and that she would not be permitted an accommodation unless she brought in a note from the Quran. In addition, Boyd says she was discriminated against because of her disability (or the perception that she was disabled) after she lost consciousness at work for almost an hour and then spent time in the hospital. She also alleged she was told she was being terminated for faxing documents to HR when she sought leave as an accommodation because sending faxes during working hours was not allowed.
  • Boyd claimed violations of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act (FMLA), and New Jersey law.

Dive Insight:

Title VII prohibits discrimination on the basis of religion and requires employers to accommodate a job applicant’s or employee’s sincerely held religious beliefs, unless doing so presents an undue hardship, the EEOC says.

Most of the time, federal law requires employers to make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress practices, the federal agency says in Religious Garb and Grooming in the Workplace: Rights and Responsibilities. Examples of religious dress include a Muslim hijab (headscarf), a Sikh turban, a Christian cross, and observing religious prohibitions against wearing certain garments — such as Muslim, Pentecostal Christian or Orthodox Jewish women’s practice of not wearing pants or short skirts. However, the EEOC notes, if a way of dressing is simply a personal preference, it is not protected by Title VII.

In general, the EEOC says, an accommodation may cause undue hardship if it is “costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

Managers and supervisors should be trained to know that an exception to a uniform or grooming policy can be a religious accommodation. Employers should review their policies and practices to ensure that federal and state mandates regarding workplace accommodations for religious beliefs and practices are followed. Additionally, experts advise employers to foster a culture of respect and inclusion and be on the lookout for covert, unconscious biases in addition to overt prejudice.

Ford applicant with missing left hand fails to show discrimination, says 8th Cir.

Dive Brief:

  • An unsuccessful applicant for an assembly line position at Ford, who was born without a left forearm and hand, was unable to prove his claims of disability discrimination and retaliation under Missouri state law (Heuton v. Ford Motor Company, No. 18-2130 (8th Cir. July 23, 2019)).
  • Ford asked the applicant, Jeremy Heuton, to get a doctor's note stating that he was unable to grip anything with his left hand even though he did not have a left hand. After Heuton provided such a note, plus an additional note from a different doctor that highlighted his abilities, Ford rejected him for work on the grounds that most of the jobs at the assembly plant required the use of two hands and arms.
  • The court determined that Heuton failed to show that Ford regarded him as having a disability, in violation of Missouri law, and also failed to provide convincing evidence that Ford retaliated against him for bringing a complaint. Accordingly, the 8th U.S. Circuit Court of Appeals upheld a district court's ruling of summary judgment in favor of Ford. The 8th Circuit noted some differences between the federal Americans with Disabilities Act (ADA) and Missouri law that could have had an impact on the outcome of Heuton's case, had he asserted violations of federal law instead.

Dive Insight:

The ADA bars employers from bias against qualified individuals with a disability. A "disability" is defined as a mental or physical impairment that substantially limits one or more major life activities. As this case highlights, the ADA also prohibits discrimination against a qualified person on the basis of a perceived disability, whether or not the person is actually considered to have a disability under the ADA. Bias on the basis of a perceived disability is called "regarded as" discrimination.

For more than a decade, the focus for establishing protection under the ADA's "regarded as" component has been on how an individual person is treated because of a physical or mental impairment, rather than on what the employer may have believed about the nature of the person's impairment.

If a qualified worker or applicant has a disability, as defined by the ADA, an employer is generally required to provide areasonable accommodation, unless to do so would create an undue hardship. The approach taken by an employer can mean the difference between a successful interactive process and a potential bias lawsuit. In this case, for example, it appears Ford could have acted with greater sensitivity than to request a doctor's note from Heuton about his ability to grip with his left hand after he already informed Ford that he was born without one.

Disabled Wisconsin lawmaker says leaders won't let him call into meetings

A disabled Wisconsin legislator says that his requests to call into meetings due to health issues have been denied by the legislature’s leadership, according to the Milwaukee Journal Sentinel.

State Rep. Jimmy Anderson (D), who uses a wheelchair, said an assembly rule preventing him from participating in committee meetings unless he is physically present violates the Americans with Disabilities Act (ADA).

Paralyzed lawmaker considers suing Assembly over disability rules

State Rep. Jimmy Anderson said he is giving Assembly Republican leaders “several weeks” to have a change of heart before he sues.

Fairfield’s Committee for People with Disabilities upholds ADA

The town’s Department of Human and Social Services celebrated the 29th anniversary of the Americans with Disabilities with Act (ADA) by reflecting on the efforts of its Committee for People with Disabilities.

The Department of Human and Social Services works to extend the ADA’s protections to Fairfield’s disabled community, which U.S. census data counts as 10 to 15 percent of the town’s population. The year-old Committee for People with Disabilities has been an important addition to this effort.

According to Director of Human and Social Services Julie DeMarco, the Committee was formed last June based on a recommendation from the Human Services Commission’s Disability Task Force. The Task Force, which met monthly to discuss ways of making Fairfield more inclusive for people with disabilities, hosted a community stakeholders meeting that revealed the need for a more permanent solution to keeping up with the issue in Fairfield.

The Task Force also created and distributed a disability survey that quantified this need. According to the survey data, 65.7 percent of respondents reported some involvement with the disability community, and 75.4 percent of respondents indicated that local resources and support for individuals with disabilities “could be improved.” The leading issues facing people with disabilities were identified as transportation, housing, advocacy and education.

Based on these results, the Human Services Commission proposed formed an HSC subcommittee, an idea supported by First Selectman Michael Tetreau. Made up of five commissioners, the Committee for People with Disabilities has since worked to address gaps in the town’s accommodations. Beyond that, the Committee is also proactive and always on the lookout to “find opportunities for growth and inclusion in the community for people with disabilities in Fairfield,” DeMarco noted.

Chair Kris Burbank said that the Committee for People with Disabilities has been “energized and active” since its formation. In addition to meeting with and gaining insight from the Westport Commission for People with Disabilities, they’ve identified training opportunities and sought input from residents relating to disability issues.

“We are currently working with the First Selectman to establish goals and an organizational framework to help us move forward, and we encourage all persons interested in this work to attend our monthly meetings at the Bigelow Center for Senior Activities,” Burbank said.

The Committee is founded upon the principles of the ADA, which prevents discrimination against people with disabilities in all areas of public life, including businesses, employment and transportation. It provides civil rights protections similar to those provided to individuals on the basis of race, color, sex, national origin, age and religion.

On the ADA’s anniversary, Burbank reaffirmed the Committee’s goal of upholding and enforcing the Act.

“We encourage our friends and neighbors to do their part within the community, businesses and other organizations to help expand inclusivity,” Burbank said. “The best way to honor the ADA is to incorporate its spirit into our everyday lives.”

Lawsuits Target Chinatown Biz Owners Confused By Disability Rules

Two groups are working together to inform small business owners in Chinatown about how to make their storefronts ADA-compliant.

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