Northern California Record
A disabled man who required a wheelchair is suing the owners of a Torrance liquor and food market, alleging negligent violation of the Americans with Disabilities Act (ADA), the Unruh Civil Rights Act, Unfair Competition Act.
David Hernandez filed a complaint Feb. 5 in U.S. District Court for the Central District of California against MBW Corporation, doing business as WC Liquor and Market and Does 1-10, alleging failure to provide full and safe equal access to its facilities.
According to the complaint, on Aug. 17, 2017 and again on Sept. 25, 2017, Hernandez went to WC Liquor and Market, 1658 W. Carson St., Torrance, to shop. The suit says Hernandez experienced discrimination, difficulty and frustration after encountering a number of barriers that interfered with his ability to use and enjoy the goods, services, privileges, and accommodations offered at the market.
The plaintiff alleges the defendants failed to make reasonable modifications in policies, practices or procedures so it could serve people with disabilities.
Hernandez seeks trial by jury, preliminary and permanent injunction, damages of up to $4,000, restitution, attorney fees, litigation expenses, costs of suit, interest and all further relief the court deems just. He is represented by attorney Jason Yoon of So.Cal. Equal Access Group in Los Angeles.
U.S. District Court for the Central District of California case number 18-cv-912
The Americans with Disabilities Act’s (ADA) “regarded as” protections do not extend to cases where an employee is presently healthy but has the potential to become disabled in the future, a Florida federal court ruled in rejecting a lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The agency filed suit on behalf of Kimberly Lowe, a massage therapist who asked for time off from her job at Massage Envy to visit her sister in Ghana. Although her request was initially approved, Lowe was fired three days before her trip after one of the company owners expressed concern that she would be infected with Ebola during her trip and infect co-workers and clients upon her return. The EEOC asserted that Lowe’s termination constituted disability discrimination in violation of the ADA. But the court disagreed. The employer simply regarded Lowe as having the potential to become infected with Ebola in the future, the court said, which does not fall under the protections of the statute as would be the case for an employee who is currently contagious.
Mondaq News Alerts
While federal lawsuits alleging violations of the Americans with Disabilities Act are not new, recent news coverage of current and ongoing lawsuits underscore that major hotel flags are particularly attractive targets for "ADA Testers". When such ADA suits are filed, the media in turn appears to find it newsworthy.
Here are three proactive steps hotel operators can take to mitigate the substantial financial risks associated with such ADA suits.
- First and foremost, the hotel should retain a qualified ADA consultant to perform a comprehensive review of accessibility issues in the following areas: parking lot, lobby, retail and restaurants, common area restrooms, hotel amenities including pool and spa, and accessible guestrooms.
- Secondly, policies and procedures need to be reviewed or implemented (if not already in place) to address best practices with respect to making accommodations for persons with disabilities. Hotel restaurants, for example, need to have a minimum number of tables designed to accommodate persons in wheelchairs. If countertops or points of sale in the hotel are located too high for ready use by persons in wheelchairs, hotel employees and retail/restaurant employees need to have clipboards ready to provide guests in wheelchairs with an alternate writing surface.
- Lastly, based on the review and recommendations of the ADA consultant, a Remedial Plan should be instituted to address in a systematic way any property shortcomings identified by the ADA consultant. Depending on the property and the significance of the particular non-conforming conditions, remedial work may need to be budgeted over several fiscal years.
Recently, a federal district court in the Commonwealth of Massachusetts refused to dismiss a website accessibility lawsuit against 1-800-Flowers.com brought under Title III of the Americans with Disabilities Act (“ADA”) by Access Now on behalf of three plaintiffs who are legally blind. The plaintiffs sued in the United States District Court for the District of Massachusetts (1:17-cv-10273-IT) and alleged that the blind and visually impaired were denied equal access to sixteen (16) websites owned or operated by 1-800-Flowers.com.
Affirming a jury verdict, the U.S. Court of Appeals for the Sixth Circuit found that ten weeks of telecommuting was a reasonable accommodation for a pregnant lawyer put on bed rest. Due to complications from pregnancy, in-house counsel Andrea Mosby-Meachem was put on bed rest. Pursuant to the Americans with Disabilities Act (ADA), she requested to work from home during that period. Memphis Light, Gas & Water denied the request, taking the position that in-person attendance was an essential function of her job. Mosby-Meachem sued, and a jury awarded her $92,000 in compensatory damages on her claim of disability discrimination. The employer appealed, but the federal appellate panel upheld the verdict. The plaintiff presented sufficient evidence for a reasonable jury to conclude that in-person attendance was not an essential function of her job for the ten-week period she requested to work from home, the court said.
As of the beginning of March 2018, there have been a lot of new developments with regard to ADA compliance and credit unions. Full disclosure, I am not a lawyer. So this should not be construed as legal advice, however, here’s the high level of the state of ADA litigation, as summarized at the recent CUNA Governmental Affairs Conference in Washington D.C. at the end of February, 2018.
The Americans with Disabilities Act (“ADA”) requires employers to engage in an interactive process with employees to reasonably accommodate a disability. A federal court in Ohio has highlighted, through a dismissal of a lawsuit filed by an employee who used opioids in the workplace, the fact that the duty to engage in the process applies equally to employees as well. Sloan v. Repacorp, Inc., 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018).