ADA in the News March 13, 2019

Settlement Agreement: Harris County, Texas

Justice Department reaches agreement with Harris County to ensure polling place accessibility for disabled voters

Asurion to Pay $50,000 to Settle EEOC Disability Discrimination Lawsuit

According to the EEOC's lawsuit, Asurion sought to hire 64 customer care representatives in April 2015 at its Meridian, Miss., location. Lakisha Person applied for a customer care representative position online and was qualified for the position. After reviewing her application, Asurion telephoned Person to discuss her interest in and availability for that position. During her telephone interview, Asurion's interviewer learned that Person is paralyzed from the waist down, and abruptly ended the interview without inquiring into Person's skills or relevant work experience. Person applied three more times for a customer care representative position, but Asurion rejected all of her applications.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on an applicant's disability. The EEOC filed its lawsuit (Civil Action No. 3:17-cv-336-CWR-FKB) in U.S. District Court for the Southern District of Mississippi, Northern Division on May 4, 2017 after first attempting to reach a pre-litigation settlement through its conciliation process.

Suit: Party City told pregnant employee it was 'unlikely to accommodate' her

HR Dive

  • The U.S. Equal Employment Opportunity Commission (EEOC) has sued Party City, claiming that the retailer illegally fired a pregnant employee in Texas after she requested pregnancy and disability-related medical restrictions (U.S. Equal Employment Opportunity Commission v. Party City Corporation, No. 19-cv-00824 (S.D. Tex. March 7, 2019)).
  • According to the complaint, the employee's previous treatment for cervical cancer created pregnancy complications. When she shared news of her pregnancy, the store's general manager advised her "that Party City was unlikely to accommodate any formal request for an accommodation," EEOC alleged. She later submitted a doctor's note requesting a lifting restriction; according to the complaint, a benefits manager responded with a letter that included the following: "When your doctor releases you to return to work and, if you would like to return to work at Party City, you may apply for any open positions for which you are qualified."
  • In its lawsuit, EEOC alleged that Party City failed to engage in any discussions to determine if an accommodation for her disability was possible; rather, it pre-emptively fired her because of her disability and because of her pregnancy-related conditions.

Dive Insight:

Pregnancy alone generally isn't considered a disability protected by the Americans with Disabilities Act (ADA), but it can give rise to impairments that are protected. In this case, the employee's prior cancer treatment led to a condition that can result in miscarriage and preterm labor, potentially qualifying her for coverage.

Moreover, according to EEOC, "discrimination based on pregnancy, childbirth, or related medical conditions, is a prohibited form of sex discrimination. [The Pregnancy Discrimination Act] requires that employers treat women affected by pregnancy or related medical conditions the same as non-pregnant applicants or employees who are similar in their ability or inability to work."

For example, experts have said this means pregnant workers must be provided with the same access to light duty that other employees receive; pregnant women cannot explicitly be excluded from light duty or be denied it at a disproportionately higher rate than other employees.

Accurate, current job descriptions can help set employers up for success. In this case, the employee's job description required the ability to lift, push, and pull up to 25 pounds, but it did not describe the actual job duties or distinguish between the essential and non-essential duties of the job.

Finally, Party City allegedly failed to engage in the interactive process with the employee to determine whether a reasonable accommodation was necessary or possible. While such a failure isn't a per se violation of federal law, the law favors a informal back-and-forth, and failure to engage can serve as evidence of discrimination.

Notably, this isn't Party City's only run-in with EEOC in recent months. Last year, the commission said that it violated the ADA when it refused to consider a job applicant with a disability, with a manager allegedly saying the company had hired people "like that" before and it had not gone well. That suit is ongoing.

Jury may hear claim that Costco managers ignored disability harassment

HR Dive

  • In reviving a Costco employee's lawsuit, the 2nd U.S. Circuit Court of Appeals has ruled for the first time that a hostile work environment claim can be made under the Americans with Disabilities Act (ADA) (Fox v. Costco Wholesale Corp., No. 17-0936-cv (2nd Cir. March 6, 2019)).
  • The court was considering an appeal from Christopher Fox, an individual with Tourette’s syndrome and obsessive-compulsive disorder. He had sued Costco, alleging that he was mocked by co-workers and that managers knew about the harassment and sometimes participated. A lower court dismissed his claims but, on appeal, the 2nd Circuit said Fox had produced enough evidence to send the case to a jury to determine "whether the frequency and severity of the mockery rose to the level of an objectively hostile work environment."
  • In reaching its conclusion, the 2nd Circuit for the first time joined several other circuits in holding that the ADA contemplates hostile work environment claims. The court said that "because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose — the prohibition of illegal discrimination in employment — it follows that disabled Americans should be able to assert hostile work environment claims under the ADA, as can those protected by Title VII."

Dive Insight:

The U.S. Equal Employment Opportunity Commission says harassment is unwelcome conduct that is based on a number of characteristics, including disability, and that behavior can become unlawful when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider hostile or abusive. Petty slights, annoyances and isolated incidents generally will not rise to that level, according to agency guidance.

In this instance, the court noted that legitimate reprimands did not support Fox's hostile work environment claims. "Legitimate reprimands by an employer are not abuse," the 2nd Circuit said, nor were the disciplinary actions taken against the plaintiff in response to Costco members complaints. The alleged mocking, however, may ultimately meet that standard.

Notably, a plaintiff is not required to prove a "hellish" workplace to establish a hostile work environment, the 7th Circuit ruled last month in a case involving allegations that a supervisor used a racial slur against an employee. The court said a supervisor’s use of racially toxic language in the workplace (three slurs over a six-month period during a four-year employment) is much more serious than a co-workers.

The 7th Circuit also upheld a ruling for a former Costco employee who brought a hostile work environment claim, finding that harassment need not be "overtly sexual" to create a hostile work environment under Title VII. In that case, a male customer allegedly stalked, videotaped, touched and subjected the woman to various personal questions and comments. And the 4th Circuit recently found that a false rumor that a female employee slept with her male boss to obtain a promotion could rise to that level as well.

For employers that want to be proactive in preventing and addressing hostile workplace claims, HR can put into place a variety of strategies. Experts generally suggest that HR implement anti-harassment training for both employees and managers, adopt robust reporting mechanisms and obtain visible buy-in from senior leadership to correct culture failings.

Disability Advocates Criticize Bradley Over 'Diversity' Job Description; University Vows Change

CBS Chicago

A Bradley University job opening post for an Assistant Director of Diversity and Inclusion role sparked a negative reaction online over its requirement that candidates “must be able to access non-ADA [Americans with Disabilities Act] compliant building.”

The Disability Policy Consortium, a disability and civil rights advocacy research organization, took to Facebook to express frustration over the access requirement.Liability Attaches if Portable Toilets Are Not ADA-Compliant

Metropolitan News-Enterprise

A governmental or commercial entity that provides portable toilets that are not large enough to accommodate persons in wheelchairs runs afoul of the federal Americans With Disabilities Act, the Ninth U.S. Circuit Court of Appeals held yesterday.

In a case also decided under California’s Unruh Civil Rights Act (which, in Civil Code §51, incorporates the ADA) and the state Disabled Persons Act, a three-judge panel, in a memorandum opinion, affirmed an award of statutory damages and attorney fees to two paraplegic plaintiffs.

The action was brought against the City of San Diego and Air California Adventure, Inc. which operates the Torrey Pines Gliderport, on city property in the La Jolla area.

Pregnant Women Shouldn't Have to Choose Between a Job and a Healthy Baby

The Good Men Project

Employers are required to accommodate the needs of pregnant women only in limited circumstances.

Fresh challenges to state exclusions on transgender health coverage

Minnesota Public Radio News


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