Justice Department Settles with Public Accommodations to Protect the Rights of Veterans Who Use Service Dogs
As we mark Veterans Day 2019, the Justice Department announced two settlement agreements under the Americans with Disabilities Act (ADA) to protect and advance equal access for veterans with disabilities who use service dogs. One agreement is with Deerfield Inn & Suites, in Gadsden, Alabama. The second agreement is with the Landmark Hotel Group in Virginia Beach, Virginia, which manages the Holiday Inn Express in Hampton, Virginia. These matters were investigated and resolved in furtherance of the Department’s commitment to ensuring that our veterans enjoy equal access to public accommodations, such as restaurants, hotels, and shops.
The ADA generally requires public accommodations to provide access to individuals with disabilities who use service animals, including those who use service dogs for post-traumatic stress disorder (PTSD) or anxiety. Yet, in public accommodations across the country, individuals with disabilities are frequently barred from entering with a service animal.
“Individuals with disabilities, including veterans who have sacrificed for our country, have a right under federal law to the equal enjoyment of the services that a public accommodation provides to the public,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division. “The Civil Rights Division is committed to ensuring equal access for our veterans, and we commend these businesses – the Deerfield Inn & Suites and the Landmark Hotel Group – for acknowledging their obligations under the Americans with Disabilities Act, and agreeing to implement policies and practices to ensure equal access for individuals who use service dogs.”
The Deerfield Inn & Suites agreement resolves allegations that, after driving many hours, a veteran arrived at the Deerfield Inn & Suites at 4:00 in the morning. When the desk clerk learned that the veteran was accompanied by her service dog, the desk clerk refused to honor the reservation, insisting that no dogs were permitted in the hotel. Despite numerous attempts by the veteran to explain that the dog was not a pet, but a highly trained animal required for disabilities she acquired in the service of our country, the clerk would not allow the veteran to stay at the hotel. As a result, and given the late hour, the veteran ended up sleeping in her car in the parking lot of a church.
Similarly, the complaint underlying the Landmark Hotel agreement alleged that, at the Holiday Inn Express managed by the Landmark Hotel Group, the desk clerk refused to honor a reservation by a veteran because he would not provide documentation that the dog with him was a service dog. The veteran informed the clerk that it was unlawful to ask for documents to establish that a dog is a service animal, but the desk clerk informed him that such documentation was corporate policy. The veteran then requested to speak to the hotel manager, who confirmed that it was the hotel’s policy to require such documentary proof. The veteran was forced to find another hotel.
Under the ADA, public accommodations generally must make modifications to their policies, practices or procedures – such as a no-pet policy – to permit the use of a service animal by a person with a disability. A service dog generally may go wherever the public is allowed to go, and a public accommodation may not require documentation about the service dog.
Under these agreements, both entities will adopt and implement a service dog policy; provide training on the service dog policy to employees and managers; post the service dog policy at their facilities and in their advertising; and pay money damages to the two veterans. All entities cooperated with the Department throughout the investigations.
Veterans Day – a federal holiday observed annually on November 11 to honor the men and women who have served in the United States Armed Forces – is an appropriate time for veterans who have returned to the civilian workforce to understand their employment rights under the Americans with Disabilities Act (ADA).
To help do this, the U.S. Equal Employment Opportunity Commission (EEOC) – an agency that enforces federal laws prohibiting employment discrimination – offers a publication entitled “Understanding Your Employment Rights Under the Americans with Disabilities Act (ADA): A Guide for Veterans” on the EEOC website.
The guide is intended to answer questions that injured veterans may have about their rights after they have left the service and returned to a civilian job or seeking a new job. It also explains the kinds of adjustments – called reasonable accommodations – that may help them be successful in the workplace.
Seventh Circuit Issues Another ADA Decision Involving Obesity Disability, Finds Future Impairments Are Not Covered
The Seventh Circuit Court of Appeals has issued another ruling regarding an obesity-related disability accommodation request under the American with Disabilities Act (ADA). Earlier this past summer, we reported on another Seventh Circuit case, in which the court held that obesity is not an ADA-protected disability unless it is caused by a physiological disorder or condition. InRonald Shell v. Burlington Northern Santa Fe Railway Company, the Seventh Circuit reversed a district court's decision, and ruled that an obese applicant for a safety-sensitive position—who was not hired due to his obesity—cannot claim discrimination under the "regarded as" prong of the ADA.
According to the three judge panel, the ADA only protects against discrimination based on disabilities a person already has, not conditions they might develop in the future. This decision aligns the Seventh Circuit with other federal appellate courts, but it also leaves them in opposition with the Equal Employment Opportunity Commission (EEOC) on the issue.
Specifically, the Seventh Circuit looked at one definition of disability as "being regarded as having [a physical or mental] impairment" and determined that the key word in the text is "having" – meaning presently and continuously. Therefore a violation of the ADA cannot be established unless the plaintiff is regarded as currently having a disability.
Can an Employer Refuse to Hire an Employee Because of the Employee’s Risk of Developing a Disability?
The Seventh Circuit joins the Eighth, Ninth and Tenth Circuits in holding that such a refusal would not violate the Americans with Disabilities Act. In Shell v. Burlington Northern Santa Fe Railway Company, No. 19-1030, the appellate court addressed the certified question “whether the ADA’s regarded-as provision encompasses conduct motivated by the likelihood that an employee will develop a future disability within the scope of the ADA.”
Shell had applied to work in a safety-sensitive position for BNSF and received a conditional offer of employment, subject to him passing a medical evaluation. BNSF’s chief medical officer determined that at 5’10” and 331 pounds with a body-mass index of 47.5, Shell was not medical qualified for the job. Employees in safety-sensitive positions are required to have a BMO of less than 40.
Shell sued, claiming that BNSF’s refusal to hire him constituted discrimination on the basis of a perceived disability in violation of the ADA.
Looking to the statutory language of the ADA, the court held that the ADA’s “regarded as” prong does not cover a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future. The ADA’s “regarded as” prong defines “disability” as “being regarded as having [a physical or mental impairment.” (Emphasis added). As such, the text plainly encompasses only current impairments, not future ones. “Having” means presently and continuously.
Shell did not base his disability claim on his obesity, as a recent Seventh Circuit opinion foreclosed that possibility. In Richardson v Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019), the court of appeals joined other circuits holding that obesity alone is not a physical impairment under the ADA unless accompanied by evidence that the obesity is caused by an underlying physiological disorder or condition. Shell instead based his disability claim on those medical conditions that BNSF feared he would develop – sleep apnea, diabetes, and heart disease – which undisputedly qualify as impairments under the statute. But Shell did not have those impairments at the time he applied to work for BNSF, nor was there any evidence that the company perceived him to currently have those impairments.
The Seventh Circuit agreed with the Eight Circuit: the plain language of the ADA prohibits actions based on an existing impairment or the perception of an existing impairment, but does not prohibit discrimination based on a perception that a physical characteristic – as opposed to a physical impairment – may eventually lead to a physical impairment under the Act With only proof that BNSF refused to hire him because of a fear that he would one day development an impairment, Shell could not establish that the company regarded him as having a disability, or that he was otherwise disabled.
A lawsuit against Domino’s Pizza over whether its website and mobile app comply with the Americans with Disabilities Act may be the highest-profile case involving commercial digital compliance, but it’s not alone.
And until federal law catches up with digital technology, there will likely be others, say those on the front lines.
“There have been thousands of lawsuits filed in jurisdictions across the country,” says Nathaniel Bessey, an attorney with Brann & Isaacson in Lewiston. Bessey, who represents online and catalogue retailers, says more such lawsuits are coming and cites a similar suit against grocery chain Winn-Dixie winding its way through Florida courts.
We’re weeks away from Black Friday and Cyber Monday, and if you haven’t started already, it’s time to prepare your e-commerce site for a wave of holiday shoppers. In 2018, the National Retail Foundation reported that four out of 10 consumers started their holiday shopping as early as Nov. 1, and 55 percent of their purchases would be made online. The number of U.S. multichannel shoppers increased 40 percent from the previous year, and 2019 is likely to continue on this upward trend.
While most businesses prepare by improving their site security and site performance measures, if your website or app isn’t accessible to people with disabilities, you could be missing out on a significant market share and/or be at risk for legal complaints.
Coffee County is expected to spend about $370,000 to implement an ADA (Americans with Disabilities Act) transition plan that will ensure the county meets ADA minimum requirements.
County officials discussed the initial plan at the Coffee County Budget and Finance Meeting Oct. 21.
“The ADA transition plan has been worked on for a long time,” said Coffee County Mayor Gary Cordell. “We have to have this for the state by Dec. 31.”
A man is suing a Kansas restaurant, claiming he was fired because he has HIV.
Mark Dugan represents Armando Gutierrez, a man who used to work as a server at a Big Biscuit restaurant in Overland Park.
“It's at the minimum disability discrimination, and discrimination based on the perception of disability,” saod Dugan. “And I think its likely discrimination based on the stigma and negative perception about HIV."
When his client accepted the job in 2017, he explained that he couldn’t work Sundays because of family commitments.
For the next year, there were no problems with that.
A year later, he learned he was HIV positive, but was wary of the social stigma associated with that and instead told his manager he had cancer.
But he later needed his employers’ signature on a document to get HIV treatment through a state program.
The very next day he was told he was being moved to a different location and with a different schedule that included Sundays.
He was fired when he told management he still couldn’t work Sunday.
Thrive Health Connection is a non-profit that supports people living with HIV and AIDS.
We told case managers there about the lawsuit.
“I'm not entirely surprised,” said Rebecca Stern. “People really lack a lot of information about how HIV and STI’s are transmitted, and I think that results in a lot of stigma."
They say it’s not just employers that treat patients unfairly; sometimes it’s a person’s own family.
“They won’t want to use the same dishes that they use,” said Raeshaun Williams. “They'll have to use paper plates and throw the dishes away. Their family may not be as affectionate with hugging them because they feel that they can become HIV positive by just the touch."
Attempts by CNN to get a comment on the lawsuit from Big Biscuit's corporate headquarters were not immediately successful.
The Centers for Disease Control and Prevention says someone can't get HIV by eating food handled by someone with the disease.
People with HIV have been protected from discrimination by the ADA since a U.S. Supreme Court ruling in 1998.