ADA in the News: November 7, 2017

Ninth Circuit Affirms Finding that ADA Class Lacked Commonality

Lexology

In Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 867 F.3d 1093 (9th Cir. 2017) (No. 16-16269), plaintiffs sued defendant, a real estate investment trust (REIT), alleging defendant had failed to offer accessible transportation services at the hotels it operates, as required by the Americans with Disabilities Act (ADA).  Plaintiffs moved to certify the class, which the district court denied because the practices of the 142 hotels managed by the REIT varied.  The Ninth Circuit affirmed.  It found the district court did not abuse its discretion in holding the class lacked commonality.  There was no evidence defendant had discouraged hotel operators from complying with the ADA.  In the absence of a policy or practice applicable to all hotels, the court found commonality lacking.  One judge dissented, finding that the panel’s ruling permitted defendant to evade the requirements of the ADA.

American Airlines Settles Disabilities Case for $9.8 Million

NBC 5 Dallas-Fort Worth

American Airlines and a subsidiary will pay $9.8 million in stock to settle claims that they failed to help disabled employees return to work.

Federal officials say American and Envoy Air fired or put some workers on unpaid leave instead of making reasonable efforts to reassign them.

The workers' disabilities ranged from cancer to back and knee injuries.

Ongoing failure to accommodate was not continuing violation; each denial was discrete act
An employer's alleged ongoing failure to accommodate an employee with ADHD did not constitute a continuing violation under the Rehabilitation Act, a federal court in Virginia ruled in dismissing his failure-to-accommodate claim as untimely. Rather, each separate denial was a discrete act subject to the applicable statute of limitations and failure to engage in the interactive process could not serve as a sole basis for liability. His common-law claim of wrongful discharge was also tossed since it was based on public policies against disability bias, which were also reflected in the state's human rights act. ( Branscome v Virginia Department of Environmental Quality, WDVa, October 30, 2017, Conrad, G.)

North Las Vegas constable seeks to nullify law that could oust him from office

Las Vegas Review-Journal

The North Las Vegas constable suing Clark County to keep his elected position is asking the county’s District Court to nullify the state law that could oust him from office.

In a new court filing, Robert Eliason’s attorneys claim that requiring certain townships’ constables to obtain a state law enforcement certification violates Nevada’s constitution and the federal Americans with Disabilities Act.

Blind activist sues Ultra Music Festival for violating Americans with Disabilities Act

Mixmag

Paralympic athlete and activist for the blind Juan Carlos Gil is suing Ultra Music Festival for violating Title III of the Americans with Disabilities Act (ADA), claiming that the festival’s website and live events are inaccessible for the visually impaired.

Gil and his lawyer Scott R. Dinn took Winn Dixie Supermarkets to court earlier this year for having a website that was not compatible with current screen reading technology, a federal case that ended with a ruling that states “having an inaccessible website violates title III of ADA”.

Disability suits over website access surge

Business Insurance

More courts are ruling against companies over the issue of website accessibility, while the number of lawsuits filed against them continues to grow dramatically.

Plaintiff attorneys have been encouraged in particular by a U.S. District Court ruling in Miami in Juan Carlos Gil v. Winn-Dixie Stores Inc. that, following a trial, held the supermarket chain was obligated to provide an accessible website to a legally blind plaintiff under the Americans with Disabilities Act (see related story).

In addition to the basic issue of accessibility, courts disagree whether, under the ADA, only companies that have “brick and mortar” facilities are obligated to provide accessible websites or if the law applies to web-only businesses as well.

Avoiding Web Accessibility Issues

Marketwired

As a major landmark in the fight for universal website accessibility, 2018 will usher in new legal regulations to be upheld by any business or organization with an online presence. Since the Department of Justice (DOJ) proposed in 2010 that websites should be considered as "places of public accommodation" as defined under the Americans with Disabilities Act (ADA), many websites have worked to diligently accommodate disabled site visitors. The forthcoming 2018 guidelines will put a finer point on the parameters for accessibility compliance and should go a long way to improving the online experience for the millions of Americans who are disabled by making accessibility a matter of human rights. In preparation for these new regulations, all businesses with online storefronts and websites can ensure they currently comply with the Web Content Accessibility Guidelines (WCAG) 2.0, which have been a leading list of protocols on the best-accessible site structure, text, and multimedia displays since they were first introduced in 2008.

The Leaves are Falling: Differing Interpretations of Leave as ADA Accommodation

Lexology

The United States Equal Employment Opportunity Commission (EEOC) has consistently maintained that leaves of absence should be considered as a form of reasonable accommodation under the Americans with Disabilities Act (ADA). In support of that position, the EEOC recently filed a lawsuit against the Blood Bank of Hawaii, contending that its “rigid maximum leave policy” inappropriately violated employees’ rights. The policy provides that employees with disabilities who utilize all of their FMLA leave may not be granted a leave of absence as a reasonable accommodation and further provides that employees returning from leave are required to demonstrate that they have no limitations on their future performance. In its complaint against the Blood Bank of Hawaii, the EEOC alleged that “[e]mployees should never be terminated or forced to resign simply because they need additional leave for their disabilities.”

ADA Lawsuits Against CUs More Than Double in a Month

Credit Union Times

The number of lawsuits filed in Virginia District Courts against credit unions over the accessibility of their websites has risen from nine to more than 20 in the last four weeks, court documents show.

All of the suits — at least 23 at the time of publication — were filed by the same two law firms on behalf of the same plaintiff. Many are so new the defendants haven’t yet filed formal responses to the complaints against them. Four appear to have already been voluntarily dismissed.

In terms of size, the defendants run the gamut. Some are small, like Portsmouth Schools Federal Credit Union, which has $2.1 million in assets and about a thousand members. Others are huge, including Navy Federal Credit Union, which has $84 billion in assets and 7.4 million members. Navy Fed’s case was dismissed on November 3.

Views Juggling ADA, FMLA and worker's compensation regulations

Employee Benefit News

An employee has a physically demanding job on the factory floor, hut they have been out on leave for an injury that they contend is work-related.

However, your worker’s compensation insurance carrier has recently denied them coverage. Additionally, the employee also has used FMLA intermittently to care for the serious health condition of their spouse before going out on their current leave.

The employee would like to return to work but their medical condition prevents them from regularly lifting more than 20 lbs., an essential function of the position. In the meantime, the supervisor is complaining and wants an employee who can do the job right now. What are your next steps?

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