According to the EEOC's suit, Stanley Black & Decker fired an inside sales representative, who had exceeded her sales goals and quotas, at its Towson, Md., facility in December 2016 for poor attendance. The EEOC charged that the termination violated federal law because the employee had requested unpaid leave for medical appointments and treatment related to her cancer, but the company failed to provide the requested leave as a reasonable accommodation of her disability. Moreover, the company's inside sales attendance policy did not provide exceptions for people who need leave as an accommodation to their disabilities.
The Americans with Disabilities Act (ADA) prohibits workplace discrimination based on disability. The ADA requires employers to provide a reasonable accommodation to individuals with disabilities, unless it would pose an undue hardship. The EEOC filed suit (EEOC v. Stanley Black & Decker, Inc., Civil Action No. 1:18-cv-02525) in U.S. District Court for the District of Maryland, Baltimore Division, after first attempting to reach a pre-litigation settlement through its conciliation process.
In addition to the $140,000 in monetary relief to the employee, the three-year consent decree resolving the suit provides substantial equitable relief, including enjoining Stanley Black & Decker from denying reasonable accommodations or violating the ADA in the future. The company will update its inside sales attendance policy to provide for reasonable accommodations. Stanley Black & Decker will provide annual training at its Towson facility to inside sales managers, supervisors and human resources personnel on the ADA and its reasonable accommodation requirements. The company will report to the EEOC on how it handled any requests for reasonable accommodations and internal complaints of discrimination within its inside sales group. Stanley Black & Decker will post a notice about the settlement and post notices required by EEOC regulations. It will also provide a positive reference for the employee.
"We encourage employers to review their policies and procedures, including attendance policies, to ensure they provide for reasonable accommodations and equal employment opportunities for individuals with disabilities," said EEOC Philadelphia District Director Jamie R. Williamson.
EEOC Regional Attorney Debra M. Lawrence added, "In addition to the monetary relief, the settlement provides important equitable relief to protect workers from disability discrimination. We commend Stanley Black & Decker for resolving this matter amicably and before incurring unnecessary litigation expenses."
Addressing emerging and developing areas of law, including inflexible leave policies that discriminate against individuals with disabilities, is one of six national priorities identified by the EEOC's Strategic Enforcement Plan.
According to the EEOC's lawsuit, Rivers Casino wrongfully denied Donnan Lake's request for a reasonable accommodation of a few additional weeks of leave to have surgery for treatment of sarcoma, a type of cancer he had fought since childhood. Instead of providing the additional time, Rivers fired Lake as a slot technician.
Rivers Casino sought to dismiss this case under Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), arguing that the company had no obligation to accommodate Lake's leave request under the ADA. The district court disagreed, ruling on May 25, 2018 that the EEOC "may be able to establish that granting Lake a short period of additional leave was a reasonable accommodation in this particular case."
Chief Judge Ruben Castillo entered the consent decree resolving this case on Feb. 25. The two-year decree enjoins Rivers Casino from discriminating against employees on the basis of disability in the future. The prohibited practices include failing to provide reasonable accommodations for disability-related absences and terminating employees on the basis of disability. Under the decree, Rivers Casino will provide training on the ADA's requirements to provide reasonable accommodations for employees, post a notice to employees about the terms of the consent decree, and report semi-annually to the EEOC on how the company has addressed requests for accommodation. The decree also provides for payment of $60,000 to the estate of Lake, who passed away during the pendency of the litigation. This case was litigated by Richard Mrizek and Ann Henry of the Chicago District Office.
"This case is an important reminder that the ADA's obligation to provide reasonable accommodations applies to employees seeking additional leave -- even after the Seventh Circuit's decision in Severson," said EEOC Chicago Regional Attorney Gregory Gochanour. "Further, employers cannot assume that denials of requests for additional leave are safe from scrutiny under the ADA."
EEOC District Director Julianne Bowman added, "This consent decree reaffirms the EEOC's position that granting additional leave can be a reasonable accommodation - and employers need to carefully evaluate each accommodation request in that light."
- A supervisor's knowledge that a worker was taking a prescription drug was not enough to show that the employer regarded the worker as having a disability and discriminated against him on that basis, the 8th U.S. Circuit Court of Appeals has ruled (Voss v. Housing Authority of the City of Magnolia, Arkansas, No. 17-1650 (8th Cir. Feb. 25, 2018)).
- Paul Voss worked as a maintenance supervisor for the Housing Authority of the City of Magnolia, Arkansas. After he tested positive for "opiates/morphine," his employer requested additional information. He initially refused and was suspended without pay, but soon thereafter provided a prescription for hydrocodone, according to court documents. The employer then requested a letter from his physician explaining whether any side effects of the medication could hinder his ability to perform his work duties; it also reinstated his pay retroactively and made sure that his health insurance did not lapse during the suspension. The employer eventually allowed Voss to return to work without the letter, but told him he could not operate the housing authority's vehicles and equipment until he provided the information. Voss resigned and sued.
- A district court dismissed his claims, and the 8th Circuit agreed on appeal that Voss had not established discrimination. Voss was unable to show that he suffered an adverse employment action because of a perceived disability, the 8th Circuit said. Relevant case law indicates that Voss' suspension wasn't an adverse employment action, the court explained; and even assuming it was, the fact that Voss' supervisor knew he was taking hydrocodone was not enough evidence to infer that the supervisor regarded Voss as an individual with a disability as defined by the Americans with Disabilities Act (ADA).
The "regarded as" prong of the ADA's definition of disability protects an individual from discrimination based on an employer's belief that he or she has a disability. And while the standard has deep roots in the statute, the ADA Amendments Act of 2008 lowered the bar for "regarded as" claims.
The focus for establishing coverage under that prong is now on "how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment," according to the U.S. Equal Employment Opportunity Commission. Notably, however, only individuals covered by the definition's first two prongs — actual disability and record of disability — are entitled to reasonable accommodations.
Employers that conduct drug tests may want to note what the employer did right in Voss. It was able to show that the employee's suspension was not an adverse employment action that would give rise to a discrimination claim. Its response to the positive test generally was in line with what experts recommend.
Such issues may arise more frequently for employers as the opioid crisis continues unabated. To combat recruitment and retention issues stemming from drug use, employers are getting creative, seeking out employees with criminal records who are required to refrain from drug use as a condition of their parole, or offering drug treatment to applicants who fail an initial screen. Employers also are seeing more states legalize marijuana, leading some to relax their zero-tolerance policies.
Justice Department: Businesses Can Provide Less Than 36" Of Clear Sales/Service Counter Space If Counter Is At An Accessible Height
Seyfarth Synopsis: DOJ provides guidance on sales/service counter rules in the 2010 Standards that provides some relief to businesses.
Retailers and other businesses should be pleased with the DOJ’s pronouncement on February 25, 2019, that they can lawfully provide sales/service counter space that is less than 36” long, as long as the entire space is at an accessible height of 36” or lower. While we always thought the 2010 ADA Standards for Accessible Design (“2010 Standards”) were unambiguous on this point, plaintiffs filed many lawsuits claiming the ADA requires retailers to provide a minimum 36” length of lowered accessible counter that is entirely clear of all objects. Courts have reached different conclusions, and now the DOJ has weighed in.
The DOJ’s statement came in the form of an amicus brief which Judge William Alsup of the Northern District of California had requested in connection with a pending motion for summary judgment. The sales/service counter at issue in the case was at an accessible height (i.e., 36” or less above the floor), but did not provide a 36” length because it included items such cash registers and merchandise displays on the counter. The DOJ stated that this counter complies with the Exception to Section 904.4.1 of the 2010 Standards because it is at a uniform accessible height, even if the space provided is not 36” long. The DOJ also said that the placement of merchandise displays and a cash register on a sales/service counter that is 36” long does not violate the 2010 Standards because Section 904.4.1 “does not so much as mention, let alone prescribe any requirements regarding ‘clear’ counter space.”
While this DOJ pronouncement provides much needed clarification, businesses should consult their ADA Title III specialist attorneys before filling up their accessible lowered counters with anything more than a register and some merchandise displays, particularly if high counters are provided for use by non-disabled customers.
The Pennsylvania Record
A woman alleges a university did not provide her the accommodations needed for her learning disability.
Vivian Chen filed a complaint on Feb. 22 in the District Court for the Eastern District of Pennsylvania against University of the Sciences in Philadelphia.
According to the complaint, plaintiff was a student with the University of the Sciences in Philadelphia in 2016 and 2017. The plaintiff says she suffers from learning disabilities and requires the use of notecards due to her struggles with OCD and ADHD.
The plaintiff alleges the defendant did not allow her to use her notecards, causing her to suffer from discrimination and embarrassment, which caused her to have to increase her anxiety medication, in addition to resulting in her failing a course.
The defendant is accused of violation of the Americans with Disabilities Act.
The plaintiff is seeking all reasonable sums due, attorney fees and court costs. The plaintiff is represented by Jennifer Sang of Berney & Sang in Philadelphia.
The District Court for the Eastern District of Pennsylvania Case No. is 2:19-CV-00775-PD.
Yesterday, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the federal anti-discrimination and anti-harassment laws, sued a Maryland-based employer for terminating a director because she spoke out against what she believed was disability discrimination perpetuated against her subordinate employee.
The director complained to the HR Department of her company, which builds and manages retirement communities, and expressed her concerns that she and the subordinate employee would suffer retaliation for reporting the alleged discriminatory conduct.
Guess what happened next?
The company called their employment counsel? No. Well, maybe. I don’t know.
I don’t think so because the defendant company then immediately fired this director right after the complaint and claimed that her termination was part of a restructuring.
EEOC to the company: “oh no you didn’t.”
Ok, fine, that’s not what the EEOC charged; rather, it claimed the alleged restructuring was a pretext for retaliation and filed suit in the U.S. District Court for the District of Maryland—EEOC v. Erickson Living Management, LLC, Civil Action No. 1:19-cv-00585-CCB). The EEOC announced the lawsuit here.
But, wait, how could one employee complain on behalf of discrimination against another? Is that a thing?
Yes, it’s a thing. It’s called the “Opposition Clause,” and there’s one in Title VII of the Civil Rights Act of 1964 (Title VII) and the disability discrimination statute, the Americans With Disabilities Act (ADA).
Like Title VII, the ADA prohibits retaliation against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.
In addition, “opposing” discriminatory employment practices must be done in good faith to be protected—the law does not protect complaints motivated by bad faith.
Retaliation And Opposing Discriminatory Treatment
Once an employee complains to the Human Resources Department or a supervisor about disability discrimination (or sex discrimination like we talked about here, or age discrimination – you get the idea), if the employer then demotes or terminates the employee, the employer can be held liable for retaliating against the employee for complaining about discrimination.
It’s true! Telling or complaining to management about perceived unlawful workplace discrimination is “protected activity” under the ADA and Title VII, which both contain an anti-retaliation provision making it unlawful for an employer to subject an employee to an “adverse action” (demotion, pay cut, unfavorable shift changes, termination, etc.) when that employee has opposed any practice made an unlawful employment practice by one of these federal anti-discrimination laws.
The EEOC considers “opposition” to be complaining to anyone about alleged discrimination to oneself OR others.
To make out a claim for retaliation, an employee need only demonstrate that (1) she was engaged in a “statutorily protected activity” by opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer; and (3) there is some causal connection between the two.
As my partner Rich Cohen noted here, a “causal connection” is just that an adverse action followed a statutorily protected activity. Hmmm, like opposition? You bet.
Employers want to be aware of how these situations arise and
- Have strong, clear anti-discrimination and anti-harassment policies and procedures set forth in your employee manuals and handbooks and follow your policy. Your handbook should describe prohibited conduct and provide examples as well as complaint procedures.
- Included in the EEO policy and procedures, employers want to maintain and enforce a strong anti-retaliation policy. Clarify for employees that if an employee reports conduct that could constitute disability discrimination or harassment based on race or sexual harassment or discrimination, that person will not suffer retaliation.
- As the EEOC has reminded employers to the following:
- provide clear examples of retaliation that managers may not otherwise realize are actionable,
- take steps to avoid actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who raise discrimination allegations;
- institute a reporting mechanism for employee concerns about retaliation, and information as to how such concerns might be resolved; and
- provide a clear explanation that retaliation can be subject to discipline, up to and including termination.
- Number 3 brings me to #4: training, training, training! Training done right is a marvelous thing. Doing it right means interactive training for employees, supervisors, C-suite, and HR staff, too, so that they can recognize, respond to, and prevent unlawful harassment (based on disability, sex, race, etc.). Training should include realistic examples, fact-based scenarios, pop quizzes, whatever. The point is: HR and supervisors must recognize poor behavior, investigate it, and then follow the company’s policies to address and correct it. Training “done right” includes ensuring that senior leaders promote anti-harassment training and anti-discrimination/ harassment policies to demonstrate the company’s commitment to enforcement of its EEO policies.
Finally, employers should remember that it is far, far, FAR easier to prove retaliation than the underlying discrimination — and easier to create a retaliation situation if you or your staff don’t know how to deal with a charge or claim or complaint of discrimination.
For an arbitration agreement to be enforceable, the parties must have a reasonable opportunity to understand its terms. See Fagerstrom v. Amazon.com, Inc., 141 F. Supp. 3d 1070 (S.D. Cal. 2015). With this principle in mind, the U.S. Court of Appeals for the Ninth Circuit commented in 2006, regarding the enforceability of an arbitration clause that was prominent in a contract, “You’d have to be blind to miss this warning. There was no surprise here.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1309-10 (9th Cir. 2006) (en banc) (emphasis added). But what if the plaintiff in Nagrampa had been blind, or was otherwise unable reasonably to read, or to understand, or to appreciate the significance of the arbitration clause by virtue of a disability or a more temporary impairment?
The Court of Appeals for the First Circuit confronted such a question in National Federation of the Blind v. The Container Store, Inc. 904 F.3d 70 (1st Cir. 2018). At issue was The Container Store’s loyalty rewards program, the terms and conditions of which contained an arbitration clause. Id. at 75-76. To enroll, customers were required to input their phone numbers and e-mail addresses at a store checkout point-of-sale terminal (“POS”). Id. at 75. In the process of enrolling, the arbitration provision appeared on the POS. Id. Blind customers could not enter their contact information into the POS without staff assistance, and if they chose to do that, they would have to reveal personal details to a staff member. Id. at 76. The blind plaintiffs had brought a class action suit, alleging that this state of affairs amounted to unlawful discrimination against blind customers in violation of the Americans with Disabilities Act (“ADA”) and state civil rights laws. Id. at 76-77.
Emotional support dogs are not allowed on campus, but service dogs are, and even though many students may think they are the same thing, they are not.
A service dog is trained to perform a function, or do a job, that his or her owner can’t perform on their own due to a physical, intellectual or emotional disability. These dogs may, of course, provide emotional support and comfort, but they are specifically trained to provide assistance beyond soothing benefits.