ADA in the News: May 14, 2018

The ADA's Interactive Process Is Always a Two-way Street

Workforce Management

The law only requires the employer to offer a reasonable accommodation that enables the employee to perform all of the essential functions of the job.

Ability to work a rotating shift can be an ADA essential function

HR Dive

  • The ability to work a rotating shift can be an essential function as defined by the Americans with Disabilities Act (ADA), the 1st U.S. Circuit Court of Appeals has ruled (Sepulveda-Vargas v. Caribbean Restaurants Inc., No. 16-2451 (1st Cir. April 30, 2018)).
  • The court reached that conclusion in a case involving a a Burger King franchisee in Puerto Rico, Caribbean Restaurants, LLC. While making a bank deposit in 2011, Victor Sepulveda-Vargas, a former assistant manager for the chain, was robbed at gunpoint and his car was stolen, causing post-traumatic stress disorder and depression. Sepulveda asked for a fixed work schedule instead of the rotating schedule typical for managers and that the company move him to an area with less crime. The request was initially granted, but Sepulveda later had to go back to rotating shifts. He resigned and sued, alleging ADA violations. A trial court dismissed his claims and he appealed.
  • The appeals court upheld the lower court's ruling and held that the ability to work a rotating shift was an essential function of Sepulveda's job. The court reached that conclusion because, among other things, the job application that Sepulveda signed and the newspaper ad for his job made it clear that managerial employees had to be able to work different shifts at different restaurants. "Today's opinion is a lesson straight out of the school of hard knocks," the court wrote; "No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it's just not on his side."

Employers generally need not remove essential functions as an ADA accommodations. They do, however, sometimes have to remove marginal functions to accommodate a worker with a disability.

Employers' judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered as evidence of essential functions, according to the U.S. Equal Employment Opportunity Commission document, The ADA: Your Responsibilities as an Employer.

Other kinds of evidence that EEOC will consider include: the actual work experience of present or past employees in the job; the time spent performing a function; the consequences of not requiring that an employee perform a function, and the terms of a collective bargaining agreement, according to the commission.

Employer policies can be relevant, too, but as the 6th Circuit recently ruled in a suit involving a request to telecommute, it's important that they be enforced — and enforced consistently.

In win for BNSF, 9th Circuit says ADA plaintiff bears burden of proof


A federal appeals court on Friday affirmed a jury verdict for Burlington Northern Santa Fe Railway Co in a lawsuit by a former engineer with sleep apnea, who accused the company of failing to accommodate his disability under the Americans with Disabilities Act.

The 9th U.S. Circuit Court of Appeals rejected Danny Snapp’s argument that, due to improper jury instructions, he was held to an unduly high burden of proof, and that the burden of disproving his claims should have shifted to BNSF because it had allegedly shirked its duty to engage in the interactive process of determining whether his disability could be reasonably accommodated.

WorkWise: Removing the employment barrier around schizophrenia

Knoxville News Sentinel

Imagine a workplace where all who hire understand that a person with schizophrenia can contribute – just like the heart attack survivor or the employee whose “bad back” requires special seating in the office and conference room. Mental illnesses, as brain impairments, are cousins to missing limbs, sight impairment and hearing loss.

What better time to open this door than now, when employers struggle to find good employees? Companies have had 28 years to become accustomed to the Americans with Disabilities Act for visible disabilities. What about the unseen disability of schizophrenia?

Legally blind teen takes on Little League

Reading Eagle

A Michigan boy with albinism wins a battle to use a yellow baseball.

For five years, Ryan Huizdos played Little League baseball with the help of a bright yellow ball.

He's legally blind because of albinism, so he used an easier-to-see, optic-yellow ball.

No one complained. Not the coaches. Not the players. Not the parents.

But then he made a Grosse Pointe/Harper Woods team that made it to a district tournament game in 2015. Ryan was lined up to pitch in the tournament when Little League found out about his yellow ball and banned it from being used because it wasn't approved and licensed by the league.

Compliance with ADA requirements could cost Midwestern State “millions”

Times Record News

Complying with Americans with Disabilities Act requirements could cost Midwestern State University “several million” dollars, according to comment at a board of regents meeting Friday.

MSU policy manual changes to two policies were approved Friday by the board of regents that regulate ADA accommodations.

Woman In Wheelchair Says MTA Driver Strapped Her Into Bus Against Her Will


A disabled woman who uses a wheelchair says she was forcibly strapped into a bus against her will this week. Commuter Jessy Yates published a Twitter thread on Thursday detailing her ordeal aboard a Bushwick-bound B54 bus, in which the driver strapped her chair in while telling her, "you know your [sic] a liability for us."

Reclaiming “Disabled” through Visibility and Allyship

The Spectator

When language is utilized as a means to construct identity, highlighting what words give certain groups power of agency over another is important, especially when discussing stigma on the Seattle University campus.

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