ADA in the News November 15, 2019

Settlement Agreement: 

Nobel Learning Communities
Intermountain Health Services

Walmart to Pay $80,000 and Implement Nationwide Change in Policy to Settle EEOC Disability Lawsuit

Walmart  Inc. will pay $80,000 and implement nationwide changes to its disability reassignment policy to settle a disability discrimination  lawsuit filed by the U.S. Equal Employment  Opportunity Commission (EEOC), the  federal agency announced today.

According to the EEOC's  lawsuit, Walmart  violated federal law by  failing to reassign a long- term employee at its Augusta, Maine location  to vacant positions in its  Waterville or Thomaston, Maine  locations after she became disabled.  The lawsuit alleged that Veronica Resendez, who had worked for Walmart  since 1999, developed a disability that, according  to Walmart,  prevented her from continuing to work in a sales associate position in Augusta. Walmart determined that the only positions that  could accommodate her disability  were fitting room associate and people greeter. While there were  no such positions vacant  in Augusta, there were two fitting room associate positions open in Waterville and one  in Thomaston. Walmart's policy, however, was to search for open positions only in the store where  the employee had been working.  Because of this, Walmart did not transfer Ms. Resendez to the positions in  Waterville or Thomaston, which  she would have happily accepted. As a result, Ms. Resendez never worked for Walmart  again.

The  Americans with Disabilities Act ("ADA") prohibits employers from discriminating based  on disability and imposes a  requirement that employees with disabilities be provided a reasonable    accommodation, absent  undue hardship on the employer. The ADA states  that one of these accommodations is reassignment to a vacant position.

The  EEOC filed its suit (Civil Action No. 1:18-cv-00170-JDL) in U.S. District  Court for the District  of Maine in Bangor after first attempting to reach a pre-litigation settlement through  its conciliation process.

As  part of the settlement, which was approved  by the Court yesterday, Walmart will change its policy so associates with a disability that are eligible  for job reassignment under the ADA as a reasonable accommodation can request that Walmart search at up to five stores beyond  an associate's then-current store location  ("home store") or in the home store's entire market.  The revised procedures will be applied to all hourly field associates working in Walmart  retail stores in the United States.

Walmart is also enjoined from failing  to offer to reassign  a qualified individual with a disability to a vacant position. Finally, Ms. Resendez will receive  payment of $80,000.

Dollar General to Pay $70,000 to Settle EEOC Disability Discrimination Lawsuit

According to the EEOC's lawsuit, on or about Sept. 7, 2015, Terri Mosley applied for a sales associate position at a Portal, Ga., Dollar General store, where she was a frequent shopper. When Mosley appeared for an interview, the store manager refused to interview her, stating, "I didn't know it was you," and told Mosley that she could not work at Dollar General "with that arm." Mosley's left arm had been injured in an automobile accident two years earlier.

Such conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimin­ation based on actual or perceived disability. The EEOC filed suit (Equal Employment Opportunity Commission v. Dolgencorp, LLC d/b/a Dollar General, Civil Action No. 6:17-cv-00100) in U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settle­ment through its conciliation process.

In addition to paying $70,000 in monetary relief, the two-year decree mandates that Dollar General provide ADA training to management and employees in 19 stores, post its anti-discrimination and anti-retaliation policies in those stores, and report any allegations of disability discrimination made by employment applicants to the EEOC

Sixth Circuit Confirms Standard for 'Regarded As' Discrimination Under the ADA

The U.S. Court of Appeals for the Sixth Circuit recently confirmed the standard to establish a claim under the “regarded as” prong of discrimination under the Americans with Disabilities Act (ADA). Applying the correct standard for such claims, the Sixth Circuit reversed the district court’s decision granting summary judgment in favor of the defendant employer.

In Babb v. Maryville Anesthesiologists, P.C., the Sixth Circuit reversed the district court’s grant of summary judgment in favor of the defendant employer. The plaintiff, a certified registered nurse anesthetist (CRNA), had been diagnosed with a degenerative eye condition, but according to plaintiff, her condition did not affect her ability to perform her job responsibilities.

The plaintiff employee alleged that she was terminated due to an incorrect perception that her eye condition was a disability. On the other hand, the defendant employer argued that the employee was terminated for clinical errors, rather than her perceived disability.

After excluding the employee’s expert evidence regarding the standard of care for CRNAs, the district court granted summary judgment in favor of the employer. The court concluded that while the employer might have perceived the employee as disabled, there was nothing in the record to suggest that the perceived disability was the basis for the termination rather than the employee’s alleged clinical errors.

Emerging Trend: ADA Does Not Cover Potential Future Disabilities

Heeding the adage “no one knows what the future may hold,” the Seventh, Eighth and Eleventh Circuits have uniformly refused to extend protections of the Americans with Disabilities Act (ADA) to employees with a perceived risk of a potential impairment.

In each case, an employer either declined to hire an applicant or terminated an employee based on the perceived possibility that the individual – who otherwise did not have an actual disability – would later develop a medical condition that could impair their capacity to perform essential job functions or otherwise pose a safety concern. In a September 2019 case before the Seventh Circuit and in an April 2016 case out of the Eighth Circuit, both involving the same employer, a transportation company declined to hire a job applicant with a BMI of over 40 (therefore classified as obese) for a safety sensitive position because of the perceived risk that the applicant could develop certain medical conditions in the future that could cause sudden incapacitation while working, such as sleep apnea or heart disease (it is noted that, in both circuits, the courts held that obesity alone is not a protected disability under the ADA). And in September 2019, the Eleventh Circuit addressed a case where an employer terminated a massage therapist who requested time off to travel to Ghana to visit family because of the perceived risk that the employee would contract the Ebola virus, due to recent outbreaks of the disease in neighboring countries. Heeding the adage “no one knows what the future may hold,” the Seventh, Eighth and Eleventh Circuits have uniformly refused to extend protections of the Americans with Disabilities Act (ADA) to employees with a perceived risk of a potential impairment.

In all of the cases, the plaintiffs argued that because the ADA includes in its definition of “disability” situations where an individual is “regarded as” having an impairment that substantially limits one or more major life activities, ADA protections should apply because the employers were regarding the individual as having a risk of developing such an impairment. The courts were therefore confronted with the question: does an employer relying upon a potential future disability as the basis for an adverse employment action violate the “regarded as” protections under the ADA?

In a rare display of unity regarding interpretations of the ADA, all three circuits concluded that an employee may only pursue a claim under the “regarded as” anti-retaliation provision if the adverse action in question occurred as a result of the employer’s perception of a current, actual disability. Based on the ADA’s statutory language defining “disability” as including situations where individuals are “being regarded as having a physical or mental impairment,” the courts found that the statute is intended to encompass only current impairments, not future ones. The courts also noted that the appendix to the ADA’s governing regulations (as promulgated by the EEOC) states that an “impairment” under the law does not include “predisposition to illness or disease.” As such, the courts concluded that an employer cannot discriminate against an applicant or employee based on a perception of potential disability. As the Eleventh Circuit summarized, “the disability definition in the ADA does not cover [a] case where an employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future.”

Despite the unanimity of these Circuit Court decisions and its own regulations to the contrary, the EEOC has argued in at least one amicus submission that a potential future condition does satisfy the ADA’s “regarded as” definition of “disability” as long as the condition in question otherwise qualifies as a protected disability under the statute. In attempting to limit the scope of its own ADA regulations, the EEOC argued that its regulation that an employee’s “characteristic predisposition to illness or disease” is not a covered impairment applies only to “regarded as” disabilities based on physical, psychological, environmental, or other characteristics that are not otherwise impairments under the ADA. For instance, under the EEOC’s interpretation of this regulation, an individual’s predisposition to developing a disease because of poverty or other socio-economic circumstances would not be protected by the ADA, whereas predisposition to a disease because of a health condition – such as obesity – would be entitled to ADA protections. Thus, notwithstanding the trend at the Circuit Court level regarding speculative future disabilities, the agency may pursue enforcement actions based on its own interpretation of its regulations.

‘It wasn’t hard at all:’ HR managers have ample help to hire people with disabilities

It was early in May of 2018, and Karen Boyle was feeling anxious. She’s vice president of human resources at the Graham Co. and was preparing for interviews with three job candidates.

Each had an intellectual/developmental disability (I/DD) and was applying for a newly created administrative position at Graham. Each would bring a job coach to their interviews who could help Boyle determine whether the position would be a fit for the company and the candidate.

For People With Disabilities, Asking For Help Carries Hidden Costs

Disabled people know better than most that this isn’t always true, even when our right to ask is backed up by federal law.

The right to ask for and receive individual help is one of the cornerstones of disability rights law. In the Americans with Disabilities Act, it’s referred to as “reasonable accommodations,” or “modifications in policies, practices, or procedures.” Either way, it is a process involving:

A request for out of the ordinary help or adjustment,

Instructions on how that help can best be provided, and

Someone committing the time, effort, or resources to provide the requested help.

7th Circuit affirms for Marion County sheriff in disability dispute

The 7th Circuit Court of Appeals affirmed on Friday a grant of summary judgment to the Marion County Sheriff’s Department in an employment discrimination dispute with an ex-deputy who claims she was harassed by co-workers because of her disability.

Brigid Ford sustained nerve damage to her hand after a she was involved in a head-on car accident on the job. She suffered permanent disability to her hand, leaving her unable to carry and properly use a firearm. Ford ultimately accepted a civilian job when she refused to quit, but alleged that her new co-workers harassed her because of her disability.

Additionally, Ford asserted the sheriff’s department would not allow her to work a fixed schedule and requested to be kept on a set schedule of working five days with the same two days out of the office rather than on a rotating schedule. However, a federal jury concluded Ford did not prove that request was a reasonable accommodation. It further concluded that although two of Ford’s co-workers had been harassing her, she hadn’t proved it was linked to her disability.

The 7th Circuit Court of Appeals affirmed the Southern District Court’s decision in Brigid Ford v. Marion County Sheriff’s Office18-3217, despite Ford’s assertion that it improperly divided the issues in her case. Specifically, Ford alleged the district court improperly separated different types of Americans with Disabilities Act claims and her evidence about co-worker Vashni Hendricks’ harassment from that of Carol Ladd and Eva Watts.

“The district court here incorrectly divided the harassment claim based on the identities of the harassers rather than the ‘intervening action’ of the Sheriff’s Office, but the court reached the right result,” Circuit Judge David Hamilton wrote for the federal appellate court. “We affirm based on the eighteen-month gap, the departure of Lieutenant (James) Walterman, and the transfer of Ladd and Watts calculated to end their alleged harassment. On the facts of Ford’s case, the court did not err in independently evaluating two distinct claims for a hostile work environment.”

Feds Reach Settlement in Lawsuit Over Preschool's Expulsion of Disabled Child

The settlement also calls for the school to pay a civil penalty of $30,000 to the United States and $18,000 as damages to the child.

A nationwide chain of day care centers has agreed to settle federal litigation accusing it of disability discrimination.

Spring Education, formerly known as Nobel Learning Communities, agreed to adopt an Americans With Disability Act-compliant policy concerning children with disabilities that impact their ability to be toilet trained.

The settlement comes after the company was sued by the U.S. Attorney’s Office in New Jersey in 2017 for expelling a 4-year-old girl with Down syndrome because she failed to meet its strict standards for toilet training. The suit alleged the company violated the ADA by discriminating against the child, known as M.M., and her parents after it refused to modify its standard toileting policy and then expelling the child.

The school said it did not provide diapering services to children in that age group, even though the girl’s parents presented a note from her physician stating she would not become toilet trained until at least age 5 because of her developmental delays.

The policy change will apply to seven Spring Education facilities in New Jersey, and more than 150 schools in 16 other states and Washington, D.C. The settlement also calls for Spring Education to maintain rigorous reporting requirements, inform current and prospective families about the policy change, and train current and future employees on the policy. The settlement also calls for the school to pay a $30,000 civil penalty to the United States and $18,000 as damages to the child.

“Equal opportunity is the core American value that is protected by the ADA and advanced by today’s agreement,” U.S. Attorney Craig Carpenito said in a statement announcing the settlement. “With this agreement, we ensure that children with disabilities attending SEI’s daycare facilities in New Jersey and across the United States receive the protection to which they are entitled under the law. We are proud to continue our vigorous enforcement of the ADA in New Jersey and will continue to root out discrimination to the fullest extent of the law.”

In December 2018, U.S. District Judge Noel Hillman ordered the school operators to comply with a broad request for discovery about its diaper-changing policies, a step Spring Education resisted.

The school’s expulsion of the child also prompted a suit against the company by the New Jersey Division on Civil Rights, but that case was dismissed in 2017. The Appellate Division affirmed that dismissal in October.

In 2009, the U.S. Department of Justice brought an action against Nobel Learning Communities in Pennsylvania, alleging the company had a pattern or practice of discriminating against children with disabilities. The parties settled that lawsuit in 2011.

Accessibility to your website could make or break your brand

Some companies are making sure their websites have more accessibility, and are creating design tools that help simplify the process for other designers.

Is your Municipal Website ADA Compliant?

The United States Supreme Court has Denied Review Effectively Allowing a Blind Man’s Case to Go Forward Against a Company to Compel Website Compliance with the ADA

On October 7, 2019 the United States Supreme Court denied a request by Domino’s Pizza to review the Ninth Circuit Court of Appeals’ decision, allowing a blind man’s case to go forward against Domino’s.1 Guillermo Robles sued Domino’s Pizza seeking damages and injunctive relief claiming that Domino’s failure to design its website and app to be compatible with screen reading software violated the Americans with Disabilities Act (“ADA”).

Robles v Domino’s Pizza, LLC, 913 F3d 898, 902 (2019). The lower district court held that while the ADA’s “auxiliary aids and services” requirements apply to Domino’s website and app, it dismissed Robles’ complaint concluding that it would be a denial of due process to impose the requirement on Dominos’ to make their website and app ADA compliant. Id. at 903-904.

The lower court based its decision on the fact that meaningful guidance on the topic from the United States Department of Justice had yet to be issued. Id. The Ninth Circuit Court of Appeals rejected that rationale and reversed the district court. Id. at 909. The Supreme Court of the United States then denied Domino’s request to review the Ninth Circuit’s opinion, which effectively allows Robles’ case to proceed against Domino’s.

Employers, Are Your Supervisors Prepared for Accommodation Requests for Mental Health Issues?

If your answer is anything other than “yes, absolutely,” we should really talk.

The Americans with Disabilities Act (ADA) protects qualified employees with mental health impairments the same as it does employees with physical disabilities—as long as the employee can perform the essential functions of the job and the accommodation does not impose an undue burden on the employer, of course.

Aside from legal compliance, why must employers learn to recognize requests for accommodations for mental health conditions? Employers may very well think it’s none of their business.

After all, traditionally, depression wasn’t discussed in the workplace. Heck it wasn’t even discussed at home! Anxiety wasn’t addressed.

Post-traumatic stress syndrome was not water cooler conversation, and certainly bipolar disorder was something an employee kept well-hidden, if said employee had a diagnosis at all.

Not so much anymore.

As more employees are talking (and posting on social media) about their mental health conditions at work, employers must be aware of their legal obligations and practical considerations if they ignore employee requests.

Mental health conditions like OCD, anxiety, and depression are ubiquitous in the workplace.

One recent poll, discussed here, reports that 78% of employees say they have struggled with at least one issues that has affected their mental health, while 42% have been diagnosed with a mental health disorder.

A whopping 63% of employees report that they have been diagnosed with a mental health disorder but not reported it to their employer.

In fact, recent research by Mind Share Partners, SAP, and Qualtrics uncovered that more than three out of every five participants said their mental health impacted their productivity and more than a third thought work contributed to their symptoms.

That’s a lot!

Employees seem less willing to tolerate this situation. According to this article, 20% of employees voluntarily left roles in the past for mental health reasons, but that number increases to 50% for millennials and 75% for a Gen Z employee.

MN DHS under scrutiny for treatment of employees with disabilities

The state agency that serves some of Minnesota’s most vulnerable residents is under scrutiny for how it treats its employees who have disabilities.

Two state senators are probing the Minnesota Department of Human Services (DHS) after eight current and former employees told them the agency did not approve simple workplace accommodations. Sens. John Hoffman, DFL-Champlin, and Jim Abeler, R-Anoka, say they are so concerned by their findings that they are planning a legislative hearing on the issue in January.

“I’m disappointed because that organization should be the exemplar of meeting accommodations,” said Hoffman, who sits on the Senate human services reform committee with Abeler.

In most cases, the senators say, DHS management slow-walked accommodation requests to the point that employees began to suffer on the job, both in their performance and their personal health. That is consistent with what two former DHS employees told the Pioneer Press; these employees also spoke to the senators.

A common theme emerged in the senators’ inquiry: DHS managers lacked the training to work with employees who have disabilities, and accommodation requests often stalled in the bureaucracy of state government.

Advocates say that failing to reasonably accommodate people with disabilities isn’t just against the law, it’s wrong and hurts both the workers and the organization.

The allegations bring fresh scrutiny on DHS — an $18 billion agency charged with administering services to the disabled, elderly and poor — at a time when it is under fire on several fronts. The department has also been scrutinized for misspending nearly $80 million in federal funds, violating state contract laws and allegedly retaliating against whistleblowers.

To be clear, DHS approves most of the accommodation requests employees make. DHS data shows the agency approved 77 of 110 requests in fiscal year 2019, amounting to 70 percent.

But that rate of approval appears to be notably lower than other state agencies. Fiscal year 2019 data from 20 state agencies shows an overall approval rate of about 90 percent, according to preliminary data compiled by Minnesota Management and Budget.

In a statement, DHS Commissioner Jodi Harpstead said the agency welcomes discussion about how it can make its workplace “more accommodating, inclusive and supportive for all employees.” She noted that 550 DHS employees have a disability, and the agency has approved more than 200 accommodations since July 2017.

“We respect and value our employees and encourage them to seek reasonable accommodations,” Harpstead said. “It is our responsibility as an employer to ensure that qualified individuals with disabilities can request and receive appropriate assistance in the form of a reasonable accommodation to perform the essential functions of the job.”

However, DHS officials declined to discuss the specifics of any current or former employee, citing personnel restrictions.


As a longtime champion for people with disabilities, Mohamed (Mourssi) Alfash was well-equipped to advocate for himself when DHS hired him in April.

Alfash has profound hearing loss, which affects his speech and can make it tricky for others to understand him.

He was hired in April as an equity coordinator in the agency’s office of inspector general, a position specifically intended to monitor how DHS’ investigatory arm treats minorities, as well as those with disabilities. His advocacy and his disability were well-known; Alfash is a member of the Minnesota Commission of the Deaf, Deafblind and Hard of Hearing.

On April 7, Alfash requested 12 accommodations.

Mohamed (Mourssi) Alfash

Most were for technical devices, such as headphones and speech-to-text software that aid in communications between the deaf and non-deaf.

Alfash also said he needed to work out of a quiet room — not a cubicle among a sea of cubicles — to effectively work because he easily gets distracted by background noise, which he is unable to filter out like people with normal hearing.

For months, he got none of what he requested. Emails show that through April, May and June, both Alfash and a third-party advocate continued to press Alfash’s supervisor for action — to no avail.

“There was a wide range of responses and excuses, such as we are still working on it, budget constraints, lack of funding, seeking approval from other departments including MNIT, unavailability of the item requested, lead time for delivery, etc.,” Alfash said.

In the end, Alfash said he received a microphone and a headset in mid-July but not the software or hardware to use them. An email from his supervisor suggested several requests were tied up in a back-and-forth between DHS and MNIT, the state’s information technology agency.

As for his office space, he never got it. Alfash said his supervisor told him they were reserved for management.

Alfash was terminated in July. His situation is complicated by the fact that he was also in a dispute with his bosses over whether he was being allowed to do his job as originally described when he was hired.

Alfash filed a complaint with the Federal Equal Employment Opportunity Commission over his treatment both related to his disability and his ultimate firing for insubordination, which he claimed was retaliation. The EEOC deemed his complaint unfounded, citing a lack of evidence, but Alfash says he’s planning to pursue the matter in court.


The idea of asking for your own office because you have a disability might rub some the wrong way, acknowledges David Fenley, ADA director for the Minnesota Council on Disability, a state advisory board.

But it’s the law, he said, and for good reason.

The Americans with Disabilities Act requires employers to provide employees with “reasonable accommodations” if they’re necessary to allow the employee to succeed.

“It’s not a privilege,” Fenley said. “At best, these accommodations are equalizers.”

Employers in government and the private sector often struggle with accommodations, Fenley said, “either because they think it’s going to give one employee an unfair advantage or because they don’t really believe the medical condition requires the accommodation.”

That appears to be what happened with a former DHS employee who has autism, a condition that, like many involving the mind, is not always apparent.

This former employee asked to remain anonymous because what she experienced at DHS, along with other challenges related to her disability, have “fractured my professional identity enough.”

She worked at DHS for a time, left briefly, and returned in mid-2018. Upon her return, she learned that the accommodations she used to have were “no longer available,” even though they were still on record.

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