- A Honeywell machine operator who testified she was "totally disabled," in accordance with statements on her application for Social Security Disability Insurance (SSDI), failed to show she was a qualified individual with a disability under the Americans with Disabilities Act (ADA), the 1st U.S. Circuit Court of Appeals concluded (Pena v. Honeywell International, Inc., No. 18-1164 (1st Cir. April 26, 2019)).
- While the standards for "disability" are different under Social Security rules and the ADA, said the 1st Circuit, the burden is on the plaintiff to reconcile the two different positions, which the plaintiff in Pena failed to do. Rather than establishing that she was qualified to perform her job, with or without a reasonable accommodation, she repeatedly stated she was totally disabled as of a given date. Accordingly, the court affirmed a district court's summary judgment ruling in favor of Honeywell.
- In a dissent, one 1st Circuit judge said his colleagues misapplied the relevant test and that the plaintiff had offered sufficient evidence that she could perform the essential functions of her job to warrant bringing her ADA claim before a jury.
On the surface, it may seem inconsistent that a worker could be "totally disabled" and unable to work for purposes of receiving disability benefits, yet still able to perform the essential functions of a job as defined by the ADA. But it's important to remember that these are two different laws with two different definitions of "disability."
Importantly, as the U.S. Supreme Court has pointed out, the definition for SSDI "does not take the possibility of 'reasonable accommodation' into account," as the ADA does. For this reason, said the Court, there are "many situations in which an SSDI claim and an ADA claim can comfortably exist side by side."
Experts often recommend that employers explore possible accommodations as warranted, rather than getting too hung up on whether a mental or physical condition qualifies as a "disability" under the ADA.
And when it comes to ADA issues, "consistency, communication, and compliance" are key, Jennifer Lyons, marketing manager at Guardian Life Insurance, said during a recent Disability Management Employer Coalition (DMEC) webinar. Employers should have an accommodation policy in place — before a request is made — and launch the interactive process after an employee requests an accommodation or the need for one becomes apparent, said Cammie McAda, vocational rehabilitation services leader at Guardian, another webinar speaker. Accommodations should also be well-documented and followed up on to ensure they're working out well, McAda added.
The new battleground for plaintiffs filing Americans with Disabilities Act (“ADA”) accessibility cases involves claims of barriers, not in physical space, but in cyber space. Lawsuits claiming that public webpages are not accessible to disabled users are being filed in Florida at an alarming rate. So far, most of these suits have been directed at private businesses, such as grocery stores, restaurants, retail stores, shopping centers, and hotels, known as “public accommodations” under Title III of the ADA. Increasingly though, plaintiffs are targeting the websites of public entities, which include “any State or local government,” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 28 C.F.R. § 35.104. As such, law enforcement agencies are at risk for such claims.
These lawsuits are different than those filed against private businesses, as the claims against public entities are brought pursuant to Title II of the ADA (and/or the Rehabilitation Act, which applies to programs receiving federal funding). Title II of the ADA provides that no person with a qualified disability shall “be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Therefore, a primary difference between Title II and III claims is that Title III claims require that there be a “place of public accommodation,” while Title II claims have no such requirement. Instead, Title II applies to the “services, programs, or activities of a public entity.” Consequently, plaintiffs assert they are being denied access to the public entity’s online content, which they say constitutes its programs, services, and activities.
In the federal courts of Florida alone, plaintiffs have filed over eighty ADA website lawsuits against counties and cities. To date, plaintiffs have brought two cases against sheriff’s offices. There are reports that other law enforcement agencies and officials have received pre-suit demands from attorneys, or letters from individuals purporting to be disabled and requesting some type of accommodation to obtain website content they claim is inaccessible. The majority of the cases are brought by individuals who have vision and/or hearing impairments, alleging that the website fails to be compatible with screen reader software or fails to have closed captioning for videos. The former becomes particularly troublesome for public entities, which tend to have hundreds or sometimes thousands of documents posted on their websites -- agendas, minutes, calendars, etc. -- often in a format not accessible to screen readers.
Presently, courts are interpreting how Title II of the ADA applies to public entities’ websites, often with inconsistent results. For example, there is no consensus as to whether public entities must make archived information accessible, or whether the requirement applies only to documents pertaining to current and future issues and events. Also, there is disagreement as to whether the plaintiff must actually partake of the public entity’s services and programs, or whether the plaintiff’s representation that he is interested in learning about the services and programs or plans to visit the area is enough to state a claim. Finally, the courts are divided on whether the Title III case law has any application to suits against public entities. The body responsible for enforcing the ADA, the U.S. Department of Justice (DOJ), has delayed its proposed amended regulations to the law, which would provide some guidance on the issues. As a result, defendants remain in a state of uncertainty, forced to manage the risks that their websites bring. Some are even considering taking down their websites altogether.
Given the trajectory of ADA website accessibility claims, law enforcement executives should immediately become familiar with the issues and the ways in which they will be impacted by such claims. When feasible, an ounce of prevention in this area can offer great value down the line when serial ADA filers come calling. Law enforcement executives should consult legal counsel who can explain potential strategies, including retaining a digital accessibility expert and voluntarily adopting the standards of the Web Content Accessibility Guidelines (WCAG) version 2.0, Level AA, which the federal government adopted as the guidelines for its websites.
Modern Restaurant Management
For the past several years, we have seen a steep increase in litigation in the hospitality industry brought under Title III of the Americans with Disabilities Act (ADA). These suits often contend that certain aspects of buildings, bathrooms and parking lots do not comply with the Act’s detailed regulations for building standards. Title III requires private businesses to accommodate disabled patrons who visit their property by removing barriers to their goods and services, if such removal would be “readily achievable.” Readily achievable means the barrier removal is easily accomplishable and is able to be carried out without much difficulty or expense. This is generally determined by looking at the nature and cost of barrier removal in context of the financial resources of the business.
City & State
New York City is working to make more vehicles wheelchair-accessible, but advocates say it’s not enough.