ADA in the News May 14, 2019

Verona Resort and Spa to Pay $16,000 to Settle EEOC Pregnancy and Disability Suit

Verona Resort and Spa, a hotel resort and spa in Tamuning, will pay $15,871.56 and provide other relief to settle a pregnancy and disability lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC's lawsuit, EEOC filed suit against Polaris Guam LLC dba Verona Resort and Spa in 2017, charging that the company refused to allow an employee with gestational diabetes to be allowed to wear open-toed shoes and be able to sit while fulfilling her duties as front desk agent.  Verona failed to provide a reasonable accommodation, and then fired her after she made the request claiming her pregnancy impacted her ability to perform the job.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act and the Americans with Disabilities Act (ADA) which requires employers to provide employees reasonable accommodations, unless it causes the employer an undue hardship, including for conditions related to pregnancy and/or childbirth.

Obese Workers Shielded From Bias? Seventh Circuit Will Hear Case

Bloomberg Law

Chicago bus driver Mark Richardson weighed nearly 600 pounds when his employer of more than a decade decided it wasn’t safe for him to perform his job. Now a federal appeals court is poised to consider whether allegedly using his obesity as a reason to fire him violated federal disability law.

The case tests the scope of reforms over the last decade meant to tackle myths surrounding obesity, which the American Medical Association designated as a disease in 2013.

If severe obesity is recognized as a disability on its own under the ADA, affected workers would be entitled to certain protections. Employers would have to make reasonable accommodations for their impairments and ensure that the workplace is free of harassment based on the person’s weight. Employees also couldn’t be fired, demoted, or subjected to another adverse job action because of their condition.

Disability discrimination lawsuit names 82 apartment complexes, includes Joplin and Galena (press release) (blog)

The Department of Justice and the U.S. Attorney’s Office for the Southern District of Ohio today announced the filing of a lawsuit against Ohio-based Miller-Valentine Operations Inc. and affiliated companies, owners, developers and builders of 82 multifamily housing complexes located in Illinois, Indiana, Iowa, Kansas, Kentucky, Missouri, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas and West Virginia. The lawsuit alleges that the defendants failed to design and construct housing units and related facilities to make them accessible to persons with disabilities in compliance with the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). The 82 complexes contain more than 3,000 units that are required by the FHA to have accessible features, and most contain public spaces that are required to comply with the ADA. 

When Counseling Jerk Employees – Focus on Jerk Behavior (and Stay Away from Why They Are Acting like Jerks)

The National Law Review

Spoiler Alert: There are people in this world that are rude, inconsiderate, disruptive, conniving, manipulative, selfish and/or lazy. I could go on and on, but in short, there are many people that exhibit jerk-type behaviors. Consequently, there are employees with these behaviors also. So what should employers do when an employee exhibits the jerk-type behaviors that are not conducive to a productive, team-oriented work environment? Start corrective action? Direct the employee to the company’s employee support services (ESS)? Give your amateur assessment that the employee may suffer from a personality defect or other underlying medical condition and immediately terminate the employee because there is nothing that can be done? Just tolerate the bad behavior?

It might seem overly simple, but employers should use corrective action to address the unsatisfactory behavior. The key is to focus on the behavior, and be clear that the behavior will not be tolerated. For instance, the corrective action should spell out the specific behavior that the employer deems unsatisfactory. Below are some examples:

  • Employee yells at co-workers, creating an unpleasant and intimidating work environment;
  • Employee makes demeaning comments about co-workers and customers under his/her breath;
  • Employee often refuses to assist co-workers with projects that he/she feels are not part of his/her job duties, even though he/she is not busy;
  • Employee makes inappropriate comments about physical looks of co-workers and customers; and
  • Employee is repeatedly 15 minutes late returning from lunch, which places additional workload on co-workers.

Additionally (to the extent practical), employers should not inquire or question the employee as to why he/she is acting like a jerk. Stay away from diagnosing the employee and asking if the employee is depressed or anxious, or suffers from any other potential medical condition. Do not ask if the employee may need a leave of absence. There are no legal obligations to ask such questions, and by doing so an employer may unintentionally trigger legal obligations under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA). The obligations may include engaging in the interactive process under the ADA or providing extended or intermittent leave. Failing to satisfy those legal obligations could subject the employer to potential liability. Lastly, asking such questions could increase the risk of a discrimination claim based on an actual or perceived disability if the employee is eventually terminated.

Admittedly, the above guidance may seem simplistic, or even harsh, especially if the employee involved has been employed for a long period of time and the unsatisfactory behavior is uncharacteristic. Wanting to inquire about why such an employee is now acting unsatisfactorily would certainly be understandable and may be well-intentioned. However, employers should understand that focusing strictly on the unsatisfactory behaviors is the approach with the least amount of risk of triggering potentially onerous obligations or litigation under the FMLA or the ADA or similar bases.

Demise of Walmart 'greeters' reveals shortcomings in the Americans with Disabilities Act


Walmart’s decision to eliminate the “greeter” position in all its stores is a case study of why the Americans with Disabilities Act is falling short of its original vision.

Back in 2015, the retailer began experimenting with a new position it called “hosts” to replace the employee who traditionally greeted customers entering a store. The new position, however, required the ability to lift 25 pounds, clean up spills and stand for long periods of time – duties that would be difficult or impossible for many greeters with a disability.

After a public backlashWalmart said it would give greeters with disabilities extra support and time to find a new job in the company.

The change took final effect late last month. Former greeters who weren’t given a new position – which Walmart earlier had estimated at as many as 20% – were to be terminated with severance. Walmart didn’t respond to a request for comment.

Some disabled greeters who have already lost their jobs over the past couple years as part of the shift have filed claims with the Equal Employment Opportunity Commission alleging that they were not offered a “reasonable accommodation” under the ADA.

Is Your Business Organizationally Ready to Hire People with Disabilities?

CEOWORLD magazine (blog)

People with disabilities are the largest minority in the world yet in the U.S., these individuals are twice as likely as their non-disabled peers to be unemployed, often referred to as being underemployed. I see it as being underestimated. Executives are typically not thinking about people with disabilities as college educated, skilled, high-potential leaders who have unique, innovative ideas ; rather if they do think of this segment in an employment context, it’s about compliance-related issues and requirements and/or bias (conscious and unconscious), due to fear of the unknown. And for those executives who do have an interest in employing this segment of the population, what often stops them from doing so is not knowing how to go about sourcing, recruiting, hiring, employing and retaining this segment in a manner that will ensure success for both the individual and the company.

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