Settlement Agreement:
ADA Lawsuit Over LSAT Accommodations Reinstated by Third Circuit
Summary judgment in favor of the LSAC, based on the below judge's ruling that plaintiff Jane Doe did not prove a concrete injury under the Americans with Disabilities Act, was reversed.
Court Upholds Termination of Employee Who Claimed Failed Drug Test Was Due to Over-the-Counter Medications
Seyfarth Synopsis: The Tenth Circuit Court of Appeals recently affirmed summary judgment in favor of an employer that terminated an employee after he tested positive for methamphetamines, even though he claimed that his drug test was the result of his use of an over-the-counter sinus medicine. While a favorable decision to employers, it serves as a reminder for employers to be cautious about how they elicit information from employees about prescription and over-the-counter drug use without risking a claim for an unlawful medical examination and inquiry in violation of the Americans with Disabilities Act (ADA).
Federal Court in Montana Rules Demand for a Supervisor Reassignment is not an Appropriate Accommodation under the ADA
If you do not like your boss, can you demand your employer provide you with a new one? A federal district court in Montana recently rejected such an accommodation request in a well-reasoned case involving the Americans with Disabilities Act (ADA) and related state law. While the court did not rule out the requested accommodation as unreasonable as a matter of law, it did find the request was not appropriate under the facts of the case.
In Sara Hamilton v. Glaxosmithkline, LLC,, the plaintiff filed suit against her former employer, alleging violations of the ADA and the Montana Human Rights Act (MHRA). While still employed—and just before receiving a memo regarding job performance counseling—plaintiff reported that she should would not be coming to work for at least two days because of an "ulcer due to work stress." Not long after, plaintiff inquired about filing a short-term disability claim, because she wouldn't be able to work for one to two weeks due to what her primary care provider described as "abdominal pain, nausea, fatigue, and anxiety."
Later, when filling out a short-term disability certification form, plaintiff's medical condition was listed as gastritis and anxiety. The alleged cause of these disorders was a less-than-positive working relationship between plaintiff and her supervisor. After taking several days off of work, plaintiff's primary care provider recommended she return, provided that a number of conditions were met. Those conditions included the recommendation that a new supervisor be assigned along with a "one-on-one mediator who is neutral with a defined agreed upon role." Apparently, that "neutral" was to mediate workplace disputes and assess issues of "conflict or concern." Ultimately, the court found the demand for a new supervisor was unreasonable as the plaintiff did not demonstrate special circumstances that would justify the accommodation request.
The Federal Circuit Court of Appeals are split on the appropriate approach to such reassignment demands. The Seventh Circuit has held that as a matter of law, the ADA does not require the employer to reassign a plaintiff to another supervisor. The Montana district court judge found that approach too rigid and opted instead for a "softer" approach, similar to that of the Second Circuit, and elected to assess the case on its factual underpinnings. That approach begins with the presumption that a request to change supervisors is unreasonable. The plaintiff, however, can overcome this presumption by pointing to facts which demonstrate, in the particular context of the plaintiff's workplace, that the request was reasonable. The burden of proof in this analysis lies with the plaintiff.
Applying that standard, the court entered summary judgement for the employer on all counts. The court found the current assignment was reasonable given the plaintiff's role at the employer. A reassignment to another supervisor would result in a transfer to an individual with limited, if any, connection to her duties. Similarly, the demand for a neutral mediator was rejected because the employer offered mediation through its HR department.
For those within the jurisdiction of the Seventh Circuit—Indiana, Illinois, and Wisconsin—the rule is that a request for a supervisory reassignment is in most circumstances unreasonable as a matter of law. For the rest of the country, including those within the Second Circuit—New York, Connecticut, and Vermont—a case-by-case assessment of the facts with a presumption against the request should govern the legal analysis.
SCOTUS will not review 3rd Cir.'s harsh ADA Amendments Act reminder
Dive Brief:
- An employer waived its right to contest "antiquated" jury instructions, allowing an employee to prevail on a "regarded as" disabled theory under in an Americans with Disabilities Act (ADA) accommodation lawsuit, the 3rd U.S. Circuit Court of Appeals concluded (Robinson v. First State Community Action Agency, No. 17-3141 (3rd Cir., April 1, 2019)).
- After Tamra Robinson's manager at First State told her that her performance was so poor that she either didn't know what she was doing or was dyslexic, Robinson underwent testing for dyslexia. She sent the manager an evaluation stating that she had symptoms consistent with the impairment and requested accommodations from HR, specifically "hands-on organized training." Instead, she was told to improve her job performance and then fired several weeks later.
- Robinson sued, alleging the employer regarded her as disabled and failed to provide a reasonable accommodation. A jury agreed and the employer appealed, arguing that the jury instructions didn't reflect changes that the ADA Amendments Act made to the ADA more than a decade ago — specifically, a clarification that individuals protected only under the law's "regarded as" prong aren't entitled to accommodation. The 3rd Circuit agreed that the jury instruction was made in error, but the employer had waived the right to contest it because it had not opposed Robinson's use of the argument earlier, had "encouraged" the use of the jury instruction and also failed to make the objection in a post-trial briefing. At no time, the court said, did First State object, despite numerous opportunities to do so.
Dive Insight:
"The lesson here is that the parties are responsible for ensuring that jury instructions are current, even model instructions," Bruce Greenberg, an attorney with Lite DePalma Greenberg, wrote in a blog post.
It's also key that employers understand what the law requires — and what it doesn't. The "regarded as" prong of the ADA's definition of disability protects an individual from discrimination based on an employer's belief that he or she has a disability. The ADA Amendments Act of 2008 made it easier for an individual to establish protection under that prong, according to the U.S. Equal Employment Opportunity Commission. Its coverage is now based on "how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment," the federal agency notes.
But an individual must be covered by one of the first two prongs of the definition, having an actual disability or a "record of" a disability, to qualify for a reasonable accommodation, the EEOC says. "In other words," the 3rd Circuit noted, "after the 2008 amendments went into effect, an individual who demonstrates that she is 'regarded as' disabled, but who fails to demonstrate that she is actually disabled, is not entitled to a reasonable accommodation."
Verity Property Management to Pay $22,500 to Settle EEOC Discrimination Lawsuit
Boise-based Verity Property Management, Inc., will pay $22,500 and make substantial changes to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
According to the EEOC's investigation, Verity found an applicant so well-qualified that it offered her a job as a leasing agent, rather than the administrative assistant position for which she originally applied. On her first day at work, after drug screening results showed that she took medications prescribed to her to treat a medical condition, Verity officials expressed concern that the common side effects associated with the medications would impact her ability to perform her job duties and questioned why she had not disclosed her usage. On her second day, Verity terminated her without further inquiry or discussion, even though she did not experience such side effects from her medication and was well able to perform her job duties.
Such alleged conduct violates the Americans With Disabilities Act (ADA), which prohibits employers from discriminating based on disability or perceived disability. The EEOC filed suit August 30, 2019 in U.S. District Court for the District of Idaho [Case No. 1:19-cv-00335-REB] after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.
The consent decree settling the lawsuit provides $22,500 to the applicant in lost wages and compensatory damages. Verity has also agreed to implement preventative policies and procedures, to explain to employees their rights and responsibilities under EEO law, to provide annual training to all employees, and to report and monitor requirements during the decree's five-year term.
"The ADA does not prohibit screening to prevent illegal drug abuse. However, a 'drug-free' workplace policy should not lead to denying employment opportunity to a worker lawfully using prescription medication to treat a medical condition," said EEOC Senior Trial Attorney May Che.
EEOC Seattle Field Director Nancy Sienko added, "Under this settlement, Verity improves its hiring and employment practices and trains its employees to understand their rights and responsibilities under the ADA, including what is permissible and impermissible when it comes to pre-job offer medical inquiries and examinations. We commend Verity, which was recently acquired by new ownership, for demonstrating its commitment to discrimination prevention under its new leadership."
The future is now: Employer use of present-day medical information to predict future disabilities does not violate the ADA
The sci-fi film Minority Report envisions the year 2054, when the U.S. government uses predictive foreknowledge of “precogs” to apprehend criminals before their crimes are ever committed, thereby reducing future harm. More than 15 years after the popular film was made, the Seventh Circuit’s decision in Shell v. Burlington Northern Santa Fe Railway Company arrives at a similar result. The Shell court held that employers do not violate the ADA when they use current predictors of future disabilities, such as obesity, to reject candidates for employment, thereby reducing future costs. This ground-breaking opinion opens the door for employer use of predictive tools such as genetic testing and AI algorithms to discern which applicants or employees are most likely to develop future (costly) disabilities, and exclude them from the workforce before disabilities arise, and before legally protected status attaches. In other words, the opinion allows employers to exclude someone based on a status of “likely to develop a future disability,” without violating the ADA, because the individual does not currently have the status of “disabled.”
Disability advocate sues the City of Minneapolis and e-scooter companies, alleging ADA violations
Noah J. McCourt, a disability advocate with autism and developmental coordination disorder, used to enjoy taking strolls around the Twin Cities. No longer. Now he fears for his safety because every day he is dodging scooters traveling at high speeds down the sidewalk. Several times, scooters strewn across his path also have caused him to nearly trip.
In recent months, dock-less scooters have become more common throughout Minneapolis neighborhoods. They are ubiquitous. This proliferation has occurred in an unregulated and haphazard fashion. For many, scooters may be a nuisance. For others, they may be a convenience. However, for people with disabilities, the presence and use of these scooters deny them access to public walkways and pose a serious risk to their safety.
McCourt repeatedly reached out to the City of Minneapolis, particularly Philippe Cunningham, who chairs the city’s Committee on Civil Rights, and he received no response.
In frustration, McCourt filed a lawsuit in United States district court, alleging violations of the Americans with Disabilities Act and the state anti-discrimination laws. The suit challenges the failure of the City of Minneapolis and private scooter companies to maintain accessibility of the city’s public sidewalks, curb ramps and cross walkways for people with disabilities. McCourt is seeking an order prohibiting the scooter companies from operating on public walkways and denying access to disabled residents and visitors.
JTA testing ADA accessible autonomous vehicle
On Oct. 31, the JTA welcomed members from the city of Jacksonville, the Mayor’s Disability Council and the Jacksonville Transportation Advisory Committee to experience the shuttle and to provide feedback on their first test rides.
Jacksonville Mayor Lenny Curry’s Disability Council comprises 13 members who serve as community liaisons from a multitude of agencies, disability backgrounds and business professions. The JTA’s Transportation Advisory Committee serves to advise the JTA Board of Directors on policies and other matters pertaining to transportation of persons with disabilities, and also advocates on behalf of the JTA for improvements to public transit services in the community. These individuals are key in the continued development of the U2C program.
The JTA embarked on developing an autonomous vehicle service for public transportation in 2017, officially launching the U2C program.
Once completed, the U2C will comprise four main projects, the first of which is the Bay Street Innovation Corridor – a three-mile at-grade loop along East Bay Street on downtown Jacksonville’s Northbank. This phase will connect the east and west sides of downtown Jacksonville from the new Jacksonville Regional Transportation Center at LaVilla, which opens in March 2020, and the city’s sports and entertainment district.
Simultaneously the authority is developing Autonomous Avenue, which is the first conversion of an elevated monorail system to a roadway that supports autonomous vehicles. This first 0.9-mile leg will serve as a proof of concept, not only for the JTA, but for the entire country. That conversion will continue throughout the Skyway’s entire 2.5-mile footprint. Finally, the JTA will expand the current Skyway through at-grade connections to serve a 10-mile network that flows through neighborhoods near downtown Jacksonville.
The continuing struggle for accessibility
In the last five years, the number of undergraduates with registered disabilities at the University of Maryland, Baltimore County has doubled; it went from under 3 percent to almost 7 percent. UMBC follows the Americans with Disabilities Act as a guideline to accommodate the increasing population.
In 1990, Congress passed the Americans with Disabilities Act, or ADA, as a civil rights law to prevent discrimination against people with disabilities. ADA requires all public spaces to comply with its standards for accessibility, such as doors that are wide enough to fit a wheelchair or having an accessible path to entrances and exits. Although UMBC is an ADA compliant, many students still struggle with accessibility.
“ADA is not enough by any means,” said Eiryn Griest Schwartzman, a disabled transfer student majoring in health administration and public policy. “Our campus needs to go beyond ADA compliant and into being fully accessible.” Schwartzman has been a disability advocate since they were 15 and currently serves as a board member for the National Council for Independent Living, one of the nation’s largest cross-disability organizations. They explained that a space that is fully accessible has the most accessibility possible for its type of facility, while ADA compliant spaces have only reached the legal minimum.