ADA in the News: March 22, 2017

Settlement Agreement:

Pea Ridge School District

Co​urt: Rite Aid was right to fire needle-phobic pharmacist

Central Penn Business Journal

Rite Aid Corp. won a key victory in its opposition to a jury verdict against the company for firing a pharmacist who wouldn't administer injections because he suffered from a fear of needles.

A three-judge federal appeals court panel in New York sided with the Cumberland County-based drugstore chain in a ruling issued Tuesday.

Christopher Stevens, an upstate New York pharmacist, had worked for Rite Aid and predecessor companies for 34 years prior to his termination in August 2011.

In April 2011, according to court documents, Rite Aid revised its job description for pharmacists, requiring them to hold a valid immunization certificate. Performing immunizations was listed among "essential duties and responsibilities" for the job.

But Stevens suffered from trypanophobia, a fear of needles and injections.

He obtained a note from his doctor, who wrote that Stevens could not safely deliver injections because he would probably become lightheaded and faint.

Stevens also argued that his condition was a disability covered under the Americans with Disabilities Act, and he requested reasonable accommodation from Rite Aid.

Company officials replied that the ADA did not apply to trypanophobia, that Rite Aid was not required to accommodate Stevens, and that he would lose his job unless he successfully completed immunization training.

Stevens responded that he would not be able to complete the training, and on Aug. 23, 2011, he was terminated for refusing to perform customer immunizations as an essential job function.

He later sued Rite Aid for wrongful termination under the ADA.

Following trial, a federal jury in Binghamton, N.Y. awarded Stevens more than $1.7 million, which included back-pay of $485,633, front-pay of $1,227,188 and $900,000 in damages, later reduced to $125,000.

In a ruling Tuesday, three justices of the Second U.S. Circuit Court of Appeals unanimously overturned the ruling, finding that Rite Aid did not violate the ADA.

The judges wrote that "employers may not discriminate against people with disabilities that do not prevent job performance, but when a disability renders a person unable to perform the essential functions of the job, that disability renders him or her unqualified."

Furthermore, the judges added, a Rite Aid official testified that the company offered Stevens another position, such as a pharmacy technician role, that would not require administering immunizations. But Stevens offered no evidence that he requested, considered or was open to such a move, they added.

"It is understandable that the jury had sympathy for Stevens, afflicted as he was with an unusual phobia," the judges wrote. "Nevertheless, his inability to perform an essential function of his job as a pharmacist is the only reasonable conclusion that could be drawn from the evidence."

Disability Discrimination: Terminated Cancer Survivor's ADA Claim Fails, Part 2

HR.BLR.com

The U.S. 8th Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) recently affirmed a district court's ruling that an employee failed to establish a case of disability discrimination and retaliation.

Justice Department Settles with Public School District to Resolve HIV-Related Discrimination Findings

satPRnews

The Justice Department announced today that it has reached an agreement with the Pea Ridge School District (PRSD) of Pea Ridge, Arkansas, to remedy alleged violations of the Americans with Disabilities Act (ADA). Title II of the ADA prohibits discrimination by public entities, including school districts, against individuals who have disabilities; individuals regarded as having disabilities; and individuals associated with people with disabilities.

Understanding the ADA for Ecommerce

Customer Think

In this first installment of a two-part series, the importance of website accessibility and the formulation of regulation under the Americans with Disabilities Act (ADA) as it relates to ecommerce are discussed. In part two, the discussion extends to options for improving website accessibility without compromising the essence of ecommerce design — the customer experience.

12 Deaf Plaintiffs Sue Banner Health for Lack of ASL Interpreters and Lack of Auxiliary Communication Aids

Lexology

Twelve deaf individuals filed a complaint in Federal District Court in Arizona on March 13 against Banner Health, which operates hospitals, surgery centers and urgent care centers in Arizona, Alaska, California, Colorado, Nebraska, Nevada and Wyoming. (Cook et al v. Banner Health, U.S. Dist. Ct., Arizona, Filed 03/13/2017, Case # 2:17-cv-00758-JJT.)

Allegation: Failure to Provide ASL Interpreters and Communication Aids

The complaint alleges that Banner Health "discriminated against plaintiffs by failing to provide on-site ASL interpreters when necessary, by providing malfunctioning Video Remote Interpreting (VRI) systems, by failing to adequately train its personnel in the use of VRI systems, and by requiring the plaintiffs to reply upon other means of communication, including passing of notes and/or lip reading, that are inadequate for the medical treatment required by the Plaintiffs and the services required by their companions."

Claims: ADA, Rehabilitation Act, §1557 of ACA and Common Law "Battery"

The complaint alleges that Banner Health's failure to provide ALS interpreters and other communication assistance violates: (1) The anti-discrimination clause of Title III of the Americans with Disabilities Act (ADA); (2) Section 504 of the Rehabilitation Act which prohibits discrimination against disabled persons by entities receiving federal funds such as Medicaid reimbursements; (3) the prohibitions on both disability and limited English proficiency discrimination within Section 1557 of the Affordable Care Act (ACA), which also prohibits discrimination under health programs or activities receiving federal funds; (4) the Arizonans with Disabilities Act; (5) the common law prohibition against "battery" as the alleged lack of effective communication resulted in a lack of informed consent for medical treatment.

Relief Sought

The complaint seeks a range of relief and remedies including an Order to require Banner Health to adopt policies and procedures to provide a range of assistive communication tools including a high-quality VRI system, provide staff qualified to operate the VRI system, enhance availability of American Sign Language interpreters, train staff in legal requirements, and award applicable actual, compensatory and punitive damages, as well as attorney fees.

Trend: Dramatic Increase in Accessibility and Communication Litigation

Multiple similar lawsuits by deaf or hearing impaired individuals have been filed against hospitals around the country in recent weeks. The increase in litigation may also be linked to the hundreds of lawsuits filed in the past two years related to allegedly "inaccessible" websites in violation of the ADA. For more information, read ”Healthcare Sector is Newest Target for Website Accessibility Lawsuits.”

Prediction

The volume of technology and communication related ADA litigation will continue to grow throughout 2017 and the issue will continue to receive media and public attention.

ADA study: Selectmen want 94 properties reviewed

The Ridgefield Press

A study of town compliance with the Americans with Disabilities Act is intended to be comprehensive — town officials have compiled a list of 94 town and school properties to be considered, ranging from town hall and Ridgefield High School to the Cass Gilbert fountain and Ballard Park bandstand, the dog park and the sewage treatment plant.

“I don’t want to just half-bake this. This is really important,” Selectman Steve Zemo said. “This is our defense in court.”

The Americans with Disabilities Act (ADA) was passed in 1990, and while the town has done some things to improve accessibility — the elevator in town hall, for instance, and crosswalk signals that can be heard as well seen — town officials know the town has much still to do.

Lawsuit: Father fired after defending disabled son from campus kangaroo court

Watchdog.org

When Tom Rossley was a teenager deciding which university to attend, he looked for a school that would take him away from home without being more expensive than the in-state tuition he would pay in Connecticut.

Feedback Form