ADA in the News: October 10, 2017

Blind, deaf patron denied an interpreter posts win in lawsuit against movie theater chain

PennLive.com

Must a Pennsylvania movie theater provide special interpretation services to a patron who is deaf and blind, even if the cost will far exceed the price of a ticket to the film?

Maybe, a federal appeals court has ruled.

A panel of the U.S. Court of Appeals for the Third Circuit made that call in reviving a lawsuit filed by Paul McGann against Cinemark USA Inc.

McGann, who is represented by the Disability Rights Network of PA, claims Cinemark, a Texas-based theater chain, violated his rights under the Americans with Disabilities Act when it refused to provide him with a tactile interpreter so he could experience the movie "Gone Girl" in late 2014.

Settlement Agreement: The City of New Albany, Indiana | Complaint

EEOC alleges medical exams and questionnaires violate ADA, GINA

EmployerLINC

The Americans with Disabilities Act (ADA) limits an employer’s ability to make disability-related inquiries or subject individuals to medical exams. No such inquiries or exams may be made until an offer of employment is made. Once a conditional offer of employment is made, an employer may make such inquiries or require such exams, provided it does so for all individuals within a job category. If the inquiries or exams screen out an individual because of his or her disability, the employer must demonstrate that the individual was rejected for a reason that is “job-related and consistent with business necessity.” Generally, the employer must show it had a reasonable belief, based on objective evidence, that an individual’s ability to perform the essential functions of a particular position would be impaired by a medical condition.

Labor Law: Is continuous leave of absence a reasonable accommodation under the ADA?

Richmond.com

Employees who exhaust their leave under the Family Medical Leave Act will sometimes require additional leave due to a medical condition.

While the Equal Employment Opportunity Commission, and some courts, have held that the Americans with Disabilities Act requires that employers grant continuous leave as a reasonable accommodation, the 7th Circuit Court of Appeals (which covers Wisconsin, Illinois and Indiana) recently held that a continuous leave of absence is not a reasonable accommodation under the ADA.

In the case Severson vs. Heartland Woodcraft, the employee took leave under the Family Medical Leave Act for a medical condition, which all parties agreed also constituted a disability under the ADA.

Seventh Circuit Puts the Brakes on Never-ending Leave Under the ADA

Lexology

Employers everywhere have been repeatedly warned not to automatically terminate employees who have exhausted their Family and Medical Leave Act (FMLA) leave. Instead, employers should first consider whether the employee might be entitled to some additional leave time as a reasonable accommodation under the Americans with Disabilities Act (ADA). But the key question for employers has always been how much additional leave time is reasonable.

According to the Seventh Circuit Court of Appeals (which covers employers in Indiana, Illinois, and Wisconsin) the answer to that question is not very much. In a recently decided case, the court was presented with circumstances in which an employee with a back condition had used up all of his FMLA leave and asked his employer to extend his leave for another two to three more months so that he could undergo and recover from back surgery. The employer denied the employee’s requested extension of leave and terminated his employment, telling the employee that he could reapply for open positions once he recovered. The employee then sued the employer, alleging that the employer had failed to reasonably accommodate his disability when it denied the extension of leave. The lower court found in favor of the employer and dismissed the employee’s lawsuit.

On appeal, the Seventh Circuit addressed the question of how much leave is a reasonable accommodation under the ADA and concluded that employers are not required to provide multiple months of additional leave to employees who have already exhausted their 12 weeks of FMLA leave. In doing so, the court noted that the ADA only requires employers to provide reasonable accommodations for a disability when doing so will allow the employee to continue working and stated that “[a]n employee who needs long-term medical leave cannot work” and, therefore, “is not a ‘qualified individual’ under the ADA.”

Disability, Sex Bias Claims Lead Rush of EEOC Year-End Lawsuits

Bloomberg BNA

The EEOC closed its 2017 fiscal year with the usual flurry of new lawsuits against U.S. employers, including Fortune 500 companies Wal-Mart, Home Depot, Publix, and Lowe’s.

The federal job rights agency filed 86 new cases in September, with allegations of disability- and sex-based discrimination leading the way. The total mirrors previous Septembers for the Equal Employment Opportunity Commission in reflecting a spike in the final month of the agency’s fiscal year.

However, this September was also the most active litigation-wise the agency has had since 2011.

People with mental illness deserve a shot at work

The Straits Times

This year's World Mental Health Day, which falls on Oct 10, focuses on the workplace. It's time to consider protection for those who want to work but cannot due to discrimination.

UNO student files complaint, alleges school violates ADA

KETV Omaha

An Omaha college student and her family say the University of Nebraska-Omaha is violating the Americans with Disabilities Act.

Since she was a toddler, Cassie McAllister has been living with Leber Congenital Amaurosis. It gradually robbed her of her eyesight until she became totally blind this summer.

With support, Cassie ran cross country in high school.

Now she says she’s not getting the support she needs at UN-O.

“I feel like I'm behind a lot,” said Cassie.

And here’s why; being blind, she has to buy her books months in advance so those materials can be transferred to a format she can access, like Braille.

She said it takes weeks for that to happen, and of her four professors, only one of them responded to her requests.

Then, just three days before the semester began, Cassie got word from the Accessibility Services Center that she was dropped from a class because there would be too many images involved.

Her parents say they were told the professor could not accommodate her needs.

“There's a difference between cannot accommodate and doesn't want to accommodate, said Cassie’s father, Mark McAllister.

Cassie was put into another class instead.

“When they changed her class on a Friday afternoon, that was it. That was enough,” said Theresa McAllister, Cassie’s Mother.

So Cassie and her parents have now filed a formal complaint against the University of Nebraska-Omaha, citing the Americans with Disabilities Act.

Appellate Court Describes Elements Of FHA Retaliation Claim

JD Supra

In a case involving the Americans With Disabilities Act (ADA), the U.S. Court of Appeals for the Seventh Circuit issued a new opinion which details the elements of a retaliation cause of action under the Fair Housing Act (FHA). The facts involved a special education teacher who was laid off as a result of an unsatisfactory performance review. The teacher challenged her review by defending her teaching methods, not by asserting she was advocating on behalf of any students or that she was exercising rights under the ADA.

After confirming that the interference provision of the ADA was modeled after the retaliation language contained in the FHA, the court made clear the following elements that would be needed to prove a retaliation claim under the FHA: (a) that the plaintiff engaged in activity protected by the FHA; (b) that the plaintiff was engaged in, aided (or encouraged others) to exercise or otherwise enjoy their FHA-protected rights; (3) the defendant coerced, threatened, intimidated, or interfered on behalf of the statutorily protected activities; and (d) the defendant was motivated by an intent to discriminate. Applying this test to the evidence in the ADA case, the Seventh Circuit concluded the plaintiff’s facts were insufficient and affirmed the trial court’s summary judgment decision in favor of the defendant. The appellate court concluded a dispute of teaching methodology did not rise to the level of asserting rights under the ADA on behalf of disabled students.

The takeaway for professional apartment management companies and employees? Under the FHA, while retaliation claims absolutely exist, it is clear that a plaintiff must be able to demonstrate a specific protected activity that he or she was attempting to assert and either an intent to discriminate or at least a causal connection between the protected activity and the challenged action.

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