ADA in the News: June 13, 2018

Washington State Health Care Authority
Settlement Agreement

United States: W3C Updates Website Accessibility Standards

Mondaq News Alerts

For the past four years, the World Wide Web Consortium (“W3C”) has been working to update version 2.0 of the Web Content Accessibility Guidelines (“WCAG”) in order to keep pace with rapid developments in the technology space. On June 5, 2018, W3C published version 2.1 of the WCAG, adding seventeen additional criteria to address accessibility barriers, mainly related to mobile devices and disabilities that affect visual and cognitive functions.  As website accessibility standards continue to evolve, businesses must spend considerable time and money in an effort to limit their liability in the face of increasing “surf-by” lawsuits.

What do these updates mean for website and mobile app operators?

Navigating the New WCAG 

The web accessibility standards added to version 2.1 are an extension of the standards of 2.0, which were issued in 2008, and follow the same A, AA and AAA compliance ratings. In court decisions that have ruled against website owners on the issue of American with Disabilities Act (“ADA”) accessibility, some judges have required website owners to bring their respective websites up to a WCAG 2.0 AA compliance standard. It is likely that courts will enforce a WCAG 2.1 AA compliance standard in the future. Therefore, when auditing a website for WCAG compliance, it is important to apply all of the standards contained in versions 2.0 and 2.1. These accessibility standards will apply to all devices that can access websites, including mobile devices and tablets, in addition to laptops and desktop computers.

Enforcement Based on Website Accessibility Standards 

Over the last couple of years, courts have seen an increase in website accessibility lawsuits brought under the ADA. While some courts have applied ADA standards of enforcement only to websites that have a connection to a physical store or location, others have interpreted the ADA more broadly to apply to online-only businesses. Website owners were hoping that the Department of Justice (“DOJ”) would issue regulations providing specific guidance with respect to ADA enforcement, but in 2017, the DOJ withdrew any proposed technical website accessibility guidance, leaving the industry in a relative regulatory vacuum.

WCAG in the Future 

As technology evolves, so will the WCAG. The W3C is already working to develop WCAG 2.2. W3C estimates that it will be released on a similar four-year timeline as that of WCAG 2.1. With the lack of concrete guidance from the DOJ, it is more important than ever to consult with experienced counsel in order to assess the risks and means to avoid or minimize ADA website accessibility exposure.

If you want to review your online operations or if you are the subject of a website accessibility lawsuit, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

Amsted Rail to Pay $4.4 Million After Court Ruled It Used Discriminatory Hiring Practices

Amsted Rail Co., Inc., a leading manufacturer of steel castings for the rail industry, will pay $4.4 million and furnish other relief to settle a class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. The EEOC had charged the Chicago-based company violated federal disability law when it disqualified job applicants based on the results of a nerve conduction test for carpal tunnel syndrome (performed by a third-party contractor) rather than conducting an individualized assessment of each applicant's ability to do the job safely.

EEOC calls, gaming company folds and pays big for ADA violations

Business Management Daily

Nevada Restaurant Services, a large Las Vegas gaming company that operates slot machines, casinos and bars in Nevada and Montana, will pay $3.5 million to settle a disability discrimination lawsuit filed by the EEOC.

According to the EEOC’s suit, since at least 2012, the company has violated federal law with a well-established, companywide policy requiring employees with disabilities or medical conditions to be 100% healed before returning to work.

The problem with that: Such a policy does not allow for the interactive process mandated by the ADA to identify reasonable accommodations that might allow disabled employees to do their jobs.

The EEOC also charged Nevada Restaurant Services with regarding employees as disabled or had to care for a disabled relative, both of which violate the ADA.

In addition to paying the money, the company must also hire an ADA compliance consultant and institute procedures to combat disability discrimination.

Working Rotating Shifts Is An Essential Job Function Defeating Disability Claim

In Sepúlveda-Vargas v. Caribbean Restaurants, LLC, 888 F. 3d 549 (1st Cir. 2018), the court of appeals affirmed summary judgment in favor of the employer on a former assistant manager's action for failure to reasonably accommodate his disability, post-traumatic stress disorder and depression, and retaliation in violation of the Americans with Disabilities Act (ADA). The plaintiff was attacked at gunpoint, hit over the head and had his car stolen while making a bank deposit on behalf of Caribbean Restaurants. Managers ordinarily rotate among three work shifts, one from 6 a.m. to 4 p.m., another from 10 a.m. to 8 p.m. and the last from 8 p.m. to 6 a.m. The plaintiff asked for a fixed timeslot. The district court determined that working a rotating shift was an essential function of the assistant manager job with Caribbean. Accommodating the plaintiff permanently would have had adverse impacts on all other assistant managers. With respect to his retaliation claim, the district court concluded that none of the actions that the plaintiff argued were adverse were material. These included, for example, that he was scolded by his supervisor for requesting an accommodation from the defendant's human resources department even though the supervisor had already denied it, his direct supervisor accusing him of taking four pills of unnecessary medication, and his supervisor and other employees calling him a "cry baby" on three occasions.

Former anesthesiologist sues Duke, alleges disability discrimination

Duke Chronicle

Michael Shaughnessy, a former Duke anesthesiologist, filed a lawsuit May 29 because of alleged disability discrimination that led to the University’s not renewing his contract.

In 2011, Shaughnessy, who graduated from Duke Medical School in 2006, was hired as a regular-rank faculty member in the Department of Anesthesiology. His employment ended June 30, 2017. The lawsuit alleges discrimination under the Americans with Disabilities Act, a hostile work environment based on disability, retaliation in violation of the ADA and retaliation in violation of Title VII of the 1964 Civil Rights Act. He is seeking damages and the expenses of the lawsuit.

ACLU lawsuit demands jail opioid treatment

Cascadia Weekly

In a novel case with national implications, the Washington state chapter of the American Civil Liberties Union has filed a lawsuit against Whatcom County jail administrators to force the facility to provide opiate-withdrawal medication to prisoners, rather than requiring them to go cold turkey.

The lawsuit, filed last week in U.S. District Court in Seattle, says the Whatcom County Jail’s refusal to provide the medicine violates the Americans with Disability Act, because opioid addiction qualifies as a disability under the law. The lawsuit also says it’s counterproductive, because inmates who go cold turkey risk severe relapse upon release—increasing the likelihood they’ll commit new crimes to satisfy their cravings and that they’ll overdose.

The ACLU lawsuit challenges the Whatcom County Jail’s policy of refusing to provide people access to Medication-Assisted Treatment (MAT), including buprenorphine (Suboxone and Subutex) and methadone, even though the facility provides other clinically appropriate medications to inmates. The policy is in collision with the Americans with Disabilities Act, the ACLU charges.

'No-fault' attendance policies penalize pregnant workers and anyone who gets sick

Southgate News Herald

As any woman who’s ever been pregnant will tell you, those nine months can be a physical roller coaster, with symptoms ranging from nausea to intense fatigue to joint pain to urinary infections. And that’s just a “normal” pregnancy.

Countless women also suffer from complications like hypertension, diabetes and placenta previa. At the very least, pregnant women need to see their doctors once a month for prenatal care, increasing in frequency to bi-weekly and then weekly in the final stages of pregnancy.

Consequently, whether it’s because of morning sickness, a delay at the doctor’s office, or pain so severe that she needs to go home before quitting time, pregnancy is virtually assured of interfering with even the most diligent employee’s ability to work her usual hours.

Southington's Smokin' With Chris making ADA upgrades

Hartford Business

Southington's Smokin' With Chris Restaurant has agreed to changes to its building exterior and interior to better accommodate people with disabilities, authorities say.

The restaurant's owners recently settled federal civil allegations that its facilities at 59 W. Center St. do not comply with the federal Americans With Disabilities Act (ADA) of 1990, the Connecticut U.S. Attorney's office said Monday.

According to ADA investigators, Smokin' agreed over the next year to create accessible parking spaces, add an accessible entry route and entrance to the eatery; install a ramp; erect an accessible restroom; and add accessible seating in the dining, bar, and patio areas.

Under federal law, private entities that own or operate places of "public accommodation," including restaurants, are prohibited from discriminating on the basis of disability, ADA investigators said.

Smokin' With Chris' owners could not be immediately reached Monday for comment.

Oxford Disability Commission To Present Access Oxford Awards

The Mayor’s Commission on Disability Issues is honoring some businesses in the Oxford community with the Access Oxford award. The honor is for those who best comply with the Americans with Disabilities Act (ADA) and the standards of the Commission.

Access Oxford is an initiative created by the Commission to encourage businesses to ensure all citizens can thoroughly access their businesses, said Commission Chairman Cameron Stubbs. They are launching Access Oxford in conjunction with the 28th anniversary of the ADA Tuesday, June 26.

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