Medical condition that 'caused' officer's memory loss of her first warning might be covered disability
An African-American police officer who was terminated from her position with the U.S. Capitol Police (USCP) after Amtrak alerted her employer that she had twice been caught riding without a ticket advanced to discovery on her federal claims of discrimination based on disability, race, and sex. At this early stage, she sufficiently alleged that she had a conductor's permission to take the "courtesy rides," that she failed to remember Amtrak's first warning due to her known medical condition which caused memory loss, and that she was treated less favorably than similarly situated white males. However, a federal court in the District of Columbia dismissed her due process claim since she conceded that she received notice and a meaningful opportunity to be heard. ( Niles v U.S. Capitol Police, DDC, April 25, 2019, Chutkan, T.)
Employee who attempted suicide after RIF'd advances discrimination, negligence claims
A hospital dietary manager who contends she was targeted for layoff because of her disability, use of FMLA leave, and gender dodged a bid for summary judgment on numerous discrimination and retaliation claims. Moreover, the hospital may be liable for mishandling the employee's threats to kill herself upon learning of her discharge, and her subsequent suicide attempt, a federal court in Pennsylvania held. ( Sabo v UPMC Altoona, WDPa, April 26, 2019, Gibson, K.)
- A nationwide health care provider for jails and prisons has agreed to pay$950,000 to 23 individuals to resolve claims that its return-to-work policies violated the Americans with Disabilities Act (ADA).
- In a lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) alleged that Corizon Health Inc. and Corizon LLC refused to accommodate employees with disabilities who exhausted their leave under the company's policy and the Family and Medical Leave Act, firing them if they were unable to return to work once their leave ended. The employers repeatedly failed to consider accommodations such as reassignment, unpaid leave and modified work schedules that would have allowed employees with disabilities to return to work, EEOC said, instead requiring that workers be 100% healed or without medical restrictions.
- In addition to the monetary settlement, the companies agreed to modify their policies and practices, provide annual training to employees and hire a monitor to ensure compliance.
The Corizon companies are far from the first to find themselves defending such policies, especially to the EEOC. UPS in 2017 agreed to pay $1.7 million to resolve similar claims alleged by the commission; a Las Vegas gaming company paid $3.5 million last yearto do the same.
"We are very concerned that so many employers violate the ADA with discriminatory policies," Mary Jo O'Neill, an EEOC regional attorney said in a statement announcing the Corizon settlement. "Employers need to consider additional unpaid leave and reassignment as reasonable accommodations when an employee is unable to do their job even with reasonable accommodations."
The ADA requires an employer to provide a reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause the employer undue hardship. As O'Neill noted, the law favors adjustments that allow employees to return to their jobs but also contemplates accommodations like reassignment and leave.
Leave as a reasonable accommodation can include time off beyond what an employer generally permits and what the FMLA protects, according to an EEOC document. In cases where an employee is not able to return to work, the employer should consider whether additional leave can be provided as a reasonable accommodation, absent undue hardship, the EEOC said. However, the agency noted, requests for leave may be an undue hardship in instances where it would be hard to find someone to perform the job on a temporary basis because the employee's role is "highly specialized" or where the employee cannot provide an estimated date of return.
Notably, one jurisdiction stands in disagreement with EEOC and most of the other federal appeals courts. In 2017, the 7th U.S. Circuit Court of Appeals held that that the ADA is not a leave law and that a multi-month leave is not a reasonable accommodation; the U.S. Supreme Courtdeclined to review the ruling in 2018. The 7th Circuit covers Wisconsin, Illinois and Indiana.
Last month, a hospital in Louisiana defeated a disability-discrimination claim on summary judgment, and in doing so, provided a road map for healthcare providers defending against such claims. Rosario v. St. Tammany Parish Hospital Service District No. 1, 2019 WL 1766983 (E.D. La., April 22, 2019).
Summary of Facts
The plaintiff, a deaf individual who communicates primarily through American Sign Language (ASL), had sought a sign-language interpreter upon arriving at the hospital for an emergency. Hospital staff initially attempted to communicate with the plaintiff using Video-Remote Interpreting (VRI) but the system would disconnect from the internet and the image was blurry and choppy. Hospital staff then attempted to secure an on-site interpreter, but none was available, and so plaintiff communicated with the hospital staff using VRI for the remainder of her visit. Later, the plaintiff visited the same hospital by appointment and was provided her preferred on-site interpreter. The plaintiff later gave birth to her child by C-section.
In February 2018, the plaintiff filed suit against the hospital alleging discrimination under Title II of the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. Plaintiff contended that the hospital’s failure to provide an on-site interpreter was discriminatory and that this caused her to experience fear and anxiety regarding the health of her then-unborn child. She sought damages, attorney’s fees, and injunctive relief against the hospital.
But after discovery, including expert discovery, the court ruled in favor of the hospital and granted the hospital’s motion for summary judgment.
First, the court awarded summary judgment on the plaintiff’s claims for declaratory and injunctive relief, because the plaintiff did not produce evidence that she intended to seek future treatment from the defendant-hospital. Next, the court awarded summary judgment on plaintiff’s claim for monetary damages, finding that the evidence did not create an issue of fact that the hospital had intentionally discriminated against the plaintiff. Nor was the evidence sufficient to preclude summary judgment under a “deliberate indifference” standard of intent, which is also sufficient to allow for monetary damages.
Instead, the court found that the defendant did attempt to accommodate plaintiff’s disability by first providing VRI and then attempting to secure an on-site interpreter. That the VRI initially malfunctioned and that hospital staff may (at worst) have been negligent in attempting to secure an on-site interpreter was not enough to establish an inference that the hospital was deliberately indifferent to the plaintiff’s needs.
Here, the hospital had the resources, training, and policies in place to respond effectively—albeit not perfectly—to the plaintiff’s needs in an emergency situation. And although this litigation went through discovery and was certainly costly, the hospital was able to defeat a claim for monetary damages and attorney’s fees where other defendants have not. It should be noted again, however, that the hospital provided an on-site interpreter in subsequent visits that were scheduled in advance. So while perfection is not the standard, a health system must continue to be vigorous in providing deaf individuals with effective communication and auxiliary aids at no charge and in a timely manner so as to satisfy a healthcare provider’s obligations under federal civil rights law.
In recent years, many companies have been swept up in a wave of lawsuits claiming that certain private commercial websites are inaccessible to users with disabilities and thus violate Title III of the Americans with Disabilities Act (ADA). For example, blind individuals, who use screen-reader software to access the Internet, have alleged that they are unable to visit certain websites that have not been properly coded to convert visual information to audio translations. Complicating matters is the lack of clear guidance from the government and courts concerning whether websites are considered places of public accommodation under the ADA and, if so, what steps businesses must take to ensure website compliance with the ADA. This has left well-intentioned companies scratching their heads while exposed to the threat of costly litigation.
Because the ADA predates the Internet as it exists today, the statute does not specifically address websites. What is more, no formal government standards for website accessibility exist, and the Department of Justice (DOJ) has not issued long-promised regulations. In addition, most of the recent lawsuits on this issue have been settled before courts can weigh in. As for the courts who have issued opinions, there has been no clear consensus. A trend among recent decisions has emerged, however, finding that websites are places of public accommodation subject to ADA accessibility requirements, especially if there is a sufficient “nexus” between the website and the company’s physical location. Therefore, it behooves companies to ensure that their websites are accessible to users with disabilities by taking such measures as coding content so that screen-reader software can convert text and images to audio descriptions for blind users and including descriptive text of videos for deaf users.
The 2018 annual total of website disability lawsuits filed was startling: 2,258 cases representing a 177% increase over 2017 according to research performed by Seyfarth Shaw Law Firm sourced from The Courthouse News Services. Cases filed in New York lead the list at 1,564.
Since the Department of Justice has to date made no formal regulation for criteria to determine if a website meets with the American Disabilities Act, the interpretation has been left to local jurisdictions and precedent cases are mounting. In January 2019 the Ninth Circuit Court of Appeals overturned a District Court decision in Robles v. Domino’s Pizza No.17-55504 whereby the superior court ruled that the ADA applied to the Domino’s website, that the absence of the Department of Justice ruling would not annul the defendant’s claim, and that the court had competency to rule on the technical matter. It is anticipated that this ruling will invite more California website ADA litigation.
When it comes to making the law more accessible online, few can claim a longer history than Cornell University Law School's Legal Information Institute.
Since its founding in 1992, the LII has undertaken many notable projects, including republishing the Code of Federal Regulations, running a legal encyclopedia for quick definitions and understanding of legal topics, and conducting research into the readability of the law.
Now, the organization is taking a step back and looking at its online infrastructure to make sure its content can be accessed by all people, including those with disabilities. They intend to have the project completed by the end of the year.
“It’s ambitious,” says Sara Frug, associate director for technology at the LII.
To accomplish this, Frug and her team will implement the Web Content Accessibility Guidelines (WCAG) 2.0 AA, considered the “gold standard” in Europe and the U.S. for online accessibility.
Hotel News Resource
MBM’s ADA Compliance and Defense team, led by my partner Marty Orlick, continues to help hotels and other businesses achieve compliance under the Americans With Disabilities Act (ADA), and has defended more than 750 ADA lawsuits and DOJ investigations or actions brought against owners and operators of “public accommodations.” Such properties include hotels, resorts, restaurants, timeshares, bed and breakfasts, spas, sports facilities, wineries, theaters and other commercial real estate, such as apartment communities, shopping centers, retail stores and banks.
On May 17, 2019, the Centers for Disease Control and Prevention (CDC) reported that 880 individual cases of measles had been confirmed in 23 states across the country in 2019. According to the CDC, the current outbreak of measles represents the greatest number of cases reported in the United States since 1994 and since the disease was declared eliminated in 2000.
Here are answers to six frequently asked questions (FAQs) about how employers can appropriately prepare for and respond to the spread of measles and the risk presented to workplaces.
‘It’s our choice to accept unfairness or advocate for justice.’