ADA in the News July 8, 2020

ASICS America Corporation to Pay $49,650 to Settle EEOC Disability Discrimination Lawsuit

ASICS America Corporation will pay $49,650 to a former employee to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, a temporary staffing agency assigned a worker with hearing and speech disabilities to work at ASICS’s warehouse distribution center in Byhalia, Miss. After the worker completed an orientation meeting, members of ASICS’s human resources department told her the com­pany could not employ her due to her disabilities and failed to engage in the interactive process with the worker to determine whether she could perform the essential functions of the position.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in the U.S. District Court for the Northern District of Mississippi, Oxford Division, Civil Action No. 3:19-cv-00227, after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

ASICS will pay the former employee $10,000 in back pay and $39,650 in compensatory damages. ASICS also agreed to implement non-monetary remedies at its Byhalia, Miss. location, to: review and revise its written policy on disability discrimination to explain the process to request a reasonable accommodation; disseminate the policy to all employees and have them sign and acknowledge receipt within 90 days of entry of the decree; and train all managers and human resources employees on disability discrimination and reasonable accommodations.

“The ADA ensures that people with disabilities have an equal opportunity to achieve success in the workplace,” said Faye A. Williams, regional attorney of the EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee and portions of Mississippi. “The EEOC commends ASICS and its attorneys for working with the agency to resolve this lawsuit to the satisfaction of all.”

Delner Franklin-Thomas, district director of the Memphis District Office, said, “Employers should ascertain whether their employment handbooks are updated so supervisors, managers, and employees know what the ADA requires.”

Lack of medical support dooms Merck rep's ADA accommodation request

Dive Brief:

  • A Merck pharmaceutical representative won’t get another shot at her disability discrimination claim, the 7th U.S. Circuit Court of Appeals concluded, finding that she failed to provide medical support for her accommodation request (Keen v. Merck, Sharp & Dohme Corp., Nos. 18-1672 & 19-1845 (7th Cir. June 26, 2020)).
  • The rep had requested several accommodations: a different vehicle, a lifting restriction, use of a cane and "early or late start." The employer approved the first three requests but asked that she provide medical documentation to support the schedule change. "Not only did [she] fail to do so, her doctor then cleared her to work without this accommodation," the appeals court said.
  • Merck can’t be held liable for not accommodating a request that an employee failed to sufficiently support, the 7th Circuit concluded, affirming a lower court’s summary judgment for the employer on the accommodation claim and others.

Dive Insight:

The Americans with Disabilities Act (ADA) requires, among other things, that employers provide reasonable accommodations to applicants and employees with disabilities.

It allows employers to request additional information to support workers’ requests when the need for the accommodation is not obvious, according to the U.S. Equal Employment Opportunity Commission (EEOC). This can be a discussion with the employee, or a request for information from a healthcare provider but, either way, the request should be narrowly tailored to the condition and request at hand, the agency said in a guidance.

When it comes to the employee’s response, EEOC takes a position similar to the 7th Circuit’s in Keen: "If an individual's disability or need for reasonable accommodation is not obvious, and [the individual] refuses to provide the reasonable documentation requested by the employer, then [he or she] is not entitled to reasonable accommodation."

The agency also has cautioned, however, that the law favors well-documented, good-faith participation in an interactive process. "[F]ailure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation," it said

Accessibility loans celebrate 30th anniversary of the ADA

The Americans with Disabilities Act will turn 30 years old on July 26, and the city of Oberlin is celebrating by making loans available for accessibility projects.

The Community Improvement Corporation is giving up to $10,000 at 1 percent interest to cover the cost of ADA-compliant upgrades at businesses across the city.

Those could include ramps for wheelchairs, eliminating steps, widening doorways, accessible restrooms or even pitching in toward the cost of elevators, Oberlin Planning and Development Director Carrie Handy said.

"We hope that somebody will take advantage of it because our downtown buildings do need a lot of ADA improvement," she said.

Most of the commercial spaces in Oberlin's historical downtown were built between 1880 and 1920, she said — but the loans can be used for any business operating within the city limits.

The CIC has roughly $50,000 available in a revolving loan fund, and it normally would fund up to 80 percent of an accessibility project.

Handy said that, working with the city's Human Relations Commission, the CIC expanded the offer to 100 percent with a $10,000 cap to celebrate the ADA's anniversary. To apply, call (440) 775-7250 or visit and click on the "For Businesses" tab.

On Monday, City Council named July 26 "ADA Awareness Day" by proclamation.

The document recognized that one in every four Americans have a disability, including those that affect mobility, hearing, vision, cognition and more.

The ADA protects people with disabilities against discrimination, but Council's proclamation said there is a duty to "continue to work together to remove barriers to access for people, including people with disabilities and with other marginalized identities in our community."

A ‘Get Out of Masking Free’ Card Based on the ADA?

So, how might employers respond to a person who objects to a rule that masks must be worn? The analysis will likely depend on the context and on a variety of factors.

In the non-employment context (i.e., a customer relationship), a business generally cannot demand documentation confirming that an individual is disabled or needs a particular accommodation, so businesses may run the risk of alienating customers with disabilities, or even draw a bona fide complaint to the DOJ or a lawsuit, by requiring a showing of such proof. A disabled individual’s right to access and entitlement to a reasonable accommodation could possibly trump a masking requirement.

In the employment context, when facing a situation involving a disabled employee who is seeking exemption from mask-wearing requirements, an employer can request proof that the employee’s medical restrictions make wearing a mask unsafe or unhealthy. A medical certification of both the underlying health condition and the necessity of an accommodation would likely be needed to support a request to be excused from a masking requirement. Similarly, Title VII of the Civil Rights Act of 1964 requires an employer to accommodate an employee’s sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship on the employer. If an employee asks for an exemption due to religion, proof of a sincerely held religious belief that contradicts the use of a mask can be required. This is no different from when an employee claims a medical or religious exemption from a mandatory flu vaccine policy. Again, the ADA interactive process applies to these situations.

Upon a showing by an employee or visitor of a potential basis for exclusion from a mask-wearing requirement, an employer’s likely next step is to explore possible accommodations and whether an undue hardship to the employer exists. The prospect of criminal liability being imposed on the business or the employer if a mask is not worn may very well make certain accommodations less reasonable or an undue hardship. However, there may be acceptable alternatives, such as offering services to the customer outside the walls of the store, or allowing an employee to work in an isolated and socially distanced area.

So it seems that we may need to brace ourselves for a contentious era of debate and pushing the limits on the use of masks, service animals, and vaccines. There are no “get out of jail free” cards during a global pandemic crisis. Employers and/or public accommodations will want to know and understand their responsibilities and rights under the ADA. Titles I, II, and III of the ADA assign different responsibilities and rights with regard to businesses and organizations, and customers, clients, patients, patrons, and employees. Nearly every business and organization wears both hats—as an employer and as a place of public accommodation—and has employees and customers to address. Figuring out which hat a business is wearing at any given time and how to comply with rules is yet another challenge of the COVID-19 pandemic.

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