EEOC Issues Final Rule Revising Procedural Regulations Under Title VII, ADA, and GINA
Congressmen aim to help retailers avoid ADA website lawsuits
A bipartisan bill in Congress addresses a problem that has cost many Home Furnishings Association members thousands of dollars.
It’s called the Online Accessibility Act. If it becomes law, it would bar plaintiffs from filing legal actions before businesses had time to fix website deficiencies and government agencies could seek administrative remedies.
Consumer-facing business websites and other online platforms must comply with the Americans with Disabilities Act. This means, for example, that for shoppers with visual impairment, information displayed on a website must be translated into audio. That is difficult to achieve, especially for small businesses with limited resources. Yet, attracting customers with online displays is increasingly important for furniture stores.
Many HFA members, large and small, have received letters from lawyers claiming their visually impaired clients could not fully access information on their websites. These letters threaten lawsuits unless corrections are made and settlements paid. Although settlements are never publicly disclosed, the costs of resolving the threats can amount to tens of thousands of dollars. That includes website upgrades and legal fees.
House Bill Introduced to Require Accessible Consumer Facing Websites and Mobile Apps
Seyfarth Synopsis: Congressmen Budd and Correa try to address website and mobile app accessibility in a new bill called the “Online Accessibility Act.”
On October 2, 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a bill called the “Online Accessibility Act” (H.R. 8478) (the “OAA”) which would amend the ADA to add a new Title VI prohibiting discrimination by “any private owner or operator of a consumer facing website or mobile application” against individuals with disabilities. The OAA would also establish web accessibility compliance standards for consumer facing websites and mobile apps and create a mandatory administrative process that persons injured by allegedly inaccessible websites and mobile apps must use before they can file a lawsuit.
Boise Recruiter Sued by EEOC For Retaliation
Recruiting services company Jivaro Professional Headhunters violated federal law by retaliating against a former employee because she filed a discrimination charge with the U.S. Equal Employment Opportunity Commission, the agency charged in a recently filed lawsuit.
According to the EEOC’s lawsuit, Felicia Bauer was hired as a senior technical recruiter to work at the company’s Hailey, Idaho facility. According to the EEOC’s suit, after Bauer filed a charge with the EEOC alleging that Jivaro had fired her due to disability discrimination, the company retaliated by providing a negative and misleading job reference to an employer considering Bauer’s job application. Jivaro also retaliated against Bauer by suing her in Idaho state court, alleging she violated her employment agreement by filing the EEOC charge.
The Americans with Disabilities Act (ADA) prohibits retaliation against workers who report discrimination. After first attempting to reach a pre-litigation settlement through its conciliation process, the EEOC filed the lawsuit (EEOC v. Jivaro Professional Headhunters,LLC,Case No. 1:20-cv-00461-CWD) in U.S. District Court for the District of Idaho. The agency seeks monetary relief for Bauer and injunctive relief such as training and posting worksite notices to prevent discrimination and retaliation.
“This employer went to extraordinary lengths to even the score with a former employee who simply wanted fair treatment,” said Nancy Sienko, deputy director of the EEOC’s San Francisco District Office. “Let the Idaho employment community know: retaliation is a violation of federal law and the EEOC will file suit when appropriate to enforce it.”
EEOC Regional Attorney Roberta Steele added, “The ADA protects the rights of current and former employees alike to speak up and report problems without being chilled by an employer’s retaliatory actions. We will pursue all available remedies to vindicate the public interest in workplaces where people can address discrimination without fear.”
EEOC Sues Jordan Carriers for Disability Discrimination
Jordan Carriers, Inc., an over-the-road transportation company headquartered in Natchez, Miss., which hauls commodities throughout the eastern United States, violated federal law by refusing to hire an applicant because of a previous back injury, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.
According to the EEOC’s lawsuit, an experienced truck driver applied for a flatbed truck driver position and was offered the position contingent upon completion of a pre-employment screening at the company’s Natchez headquarters. During the screening, the driver told the examiner he had suffered a back injury 14 years ago. A company employee then told him he would not be allowed to complete the remainder of the medical exam because his past medical history rendered him ineligible for hire. The EEOC alleges the driver was fully capable of performing the duties of position, but the company denied him the job because it regarded him as disabled or because of his record of a disability.
Failure to hire an individual because of a perceived or past disability violates the Americans with Disabilities Act (ADA), which prohibits discrimination in employment because of disability. The EEOC filed suit (EEOC v. Jordan Carriers, Inc., Case No. 5:20-cv-191-DCB-MTP) in U.S. District Court for the Southern District of Mississippi after first attempting to reach a pre-litigation settlement through its conciliation process. The agency’s lawsuit seeks the hiring of the driver along with retroactive benefits and monetary damages, including back pay, compensatory and punitive damages, and injunctive relief.
“Jordan Carriers refused to hire a qualified truck driver because of a past back injury,” said Bradley Anderson, director of the EEOC’s Birmingham District Office. “The EEOC is dedicated to its responsibility to enforce the ADA and combat this type of deliberate discrimination.”
“The ADA requires that people with disabilities be evaluated on their ability to perform the job, not on stereotypes or assumptions,” said Marsha Rucker, regional attorney for the EEOC's Birmingham District Office. “An employer cannot assume an applicant is incapable of performing the job duties based on an applicant's medical history, but is required by law to make the assessment based on his or her present abilities.”
One of the six national priorities identified by the Commission’s Strategic Enforcement Plan is to address eliminating barriers in recruitment and hiring.
Walmart Pays $40,000 to Settle Discrimination Claim
Walmart Stores East, L.P. will pay $40,000 and provide additional training to its managers to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced on Wednesday.
According to the EEOC’s lawsuit, Emily Hayman was born with a congenital amputation applied for a freight handler position at Walmart’s Ochelata, Oklahoma, Grocery Distribution Center in March 2018. She arrived at the facility to take Walmart’s pre-employment test for freight handlers, known as the Physical Assessment Test (PAT). The PAT required lifting and carrying cartons weighing up to 50 lbs. Walmart representatives asked Hayman twice whether she needed assistance to complete the test.
Both times Hayman declined the offers, telling them that she lifted up to 150 lbs. at the job she had at the time. But Walmart’s hiring official insisted on contacting the company’s accommodations representative to determine if Hayman should be allowed to take the PAT. According to the EEOC, when Hayman told the representative she did not need an accommodation to complete the test, the representative told her she could not help her. Ultimately, she was not allowed to take the PAT without an unneeded assistive device.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from refusing to hire an applicant based on disability. The EEOC filed its lawsuit (Equal Employment Opportunity Commission v. Walmart Stores East, L.P., No. 19-cv-524-JED-FHM), in September 2019 in U.S. District Court for the Northern District of Oklahoma after first attempting to reach a pre-litigation settlement through its conciliation process.
Judge John E. Dowdell approved the two-year consent decree awarding $40,000 in monetary damages to Hayman. The decree also requires Walmart to train its managers and human resources personnel at the Ochelata Distribution Center on how to treat applicants with obvious disabilities during the hiring process and the appropriate role of reasonable accommodations under the ADA.
“Workers with disabilities are in the best position to determine their own capabilities,” said Andrea G. Baran, the EEOC’s regional attorney in St. Louis. “If an employer is concerned about whether a disabled worker can perform an essential job function or complete a pre-employment test, it should offer the worker a reasonable accommodation, but not require the worker to use an accommodation that is unnecessary.”
The EEOC’s St. Louis District director, L. Jack Vasquez, Jr., added, “Central to the EEOC’s mission is ensuring that disabled workers have equal employment opportunities without unlawful barriers. Unnecessary ‘accommodations’ hinder, rather than help, disabled workers’ employment opportunities.”
Local Culinary Businesses Hit with ADA-Compliance Lawsuits
Owners speak out about complaints, which claim that websites cannot be fully accessed by screen-reading software used by visually impaired individuals.
Guilty As Charged: Ableism Is Everywhere
What is ableism? Well, we all know about sexism, racism, ageism, etc. Ableism is more than a word in this list of “isms.” Ableism is a little-known but widely systematic and negative bias affecting persons with disabilities. Simplified, ableism is discrimination or prejudice against a person with a disability.
Rebekah Taussig, author of Sitting Pretty and a Ph.D. in creative nonfiction and disability studies, challenges the traditional dictionary versions and provides her definition, coming from her chair of permanent paralysis: “Ableism is the process of favoring, fetishizing, and building the world around a mostly imagined, idealized body while discriminating against those bodies perceived to move, see, hear, process, operate, look, or need differently from that vision.”
Suppose we expand our definition of a person with a disability to include those with any motor, auditory, perception, vision or learning challenge. In that case, we add a lot more people to this list. Know that many disabilities are invisible. Now, expand your thinking to how persons with disabilities are excluded from activities, both face-to-face and online. That is discrimination.
Before I expand on my personal guilt, I want to share three reasons why I’m writing this piece.
1. I am one of the country’s top job search experts, focused on populations facing the highest discrimination in the hiring world. I built a system for job seekers to follow and land meaningful employment.
2. In my seven-year journey to build a candidate success solution, I dived deep into the misleading numbers of “low unemployment.” There are too many categories of high employment to list here. Some examples are Baby Boomers (ageism), U.S. military veterans, military spouses, underserved communities (with low access to college degrees) and persons with disabilities.
In 2017, 18.7% of people with a disability were employed, the U.S. Bureau of Labor Statistics reports. The employment-population ratio for those without a disability, in contrast, was 65.7%. The average annual income for a disabled person was $25,400 less than for a nondisabled person.
3. I am a person with a disability. You see, some disabilities are visible, but many are invisible, and our bodies can shift in and out of a “disabled” state. I have battled cancer three times throughout my career and now live with stage IV metastatic breast cancer… the last stage. I recently had one potential client say, “I’m not sure we can go with your service since we don’t know how long you’ll be around.” That’s ableism.
Ontario airport to conduct first assessment of ADA compliance in 20 years
Virtual town hall on accessibility is set for Oct. 30
What are Accommodations and How Can I Request Them?
- There isn’t a one-size-fits-all approach for accommodating mental health conditions at work. Each individual has different abilities, limitations and needs.
- Most employers in the U.S. are legally obligated to provide reasonable accommodations so that workers with disabilities can apply for a position, perform their essential job functions, or enjoy the full advantages of employment.
- When companies create an inclusive workplace for people with mental health conditions, everyone benefits.
When people think about accommodations, they might picture a handicapped parking spot or a wheelchair-accessible restroom. When it comes to mental health conditions, the concept of accommodations can be harder to grasp. So what are accommodations, and who needs them?
The Americans with Disabilities Act (ADA) requires U.S. employers with 15 or more employees — including state and local governments, employment agencies and labor organizations — to provide reasonable accommodations for individuals with disabilities. Some people living with mental health disorders can fall into that category.
Approximately one in four adults in the U.S. lives with a diagnosable mental health disorder in a given year. For some, certain aspects of their condition can make it hard to be productive at work. Accommodations can help level the playing field.
Approximately one in four adults in the U.S. lives with a diagnosable mental health disorder in a given year.
Defining a “Disability” Under the ADA
The ADA defines employees with disabilities as individuals who have, have a record of, or are regarded as having “a physical or mental impairment that substantially limits one or more major life activities.” These “major life activities” vary from person to person. There is no single exhaustive list. Examples include caring for oneself, sleeping, speaking, learning, reading, concentrating, thinking and communicating.
Depending on how it impacts someone’s ability to live and work, a mental health disorder can be defined as a disability within the meaning of the ADA. Examples include major depression, bipolar disorder, anxiety disorders (e.g., panic disorder, obsessive-compulsive disorder and post-traumatic stress disorder), schizophrenia and personality disorders. People living with mental health conditions like these may experience impairments — including issues with concentration, memory and time management — that significantly limit their capacity to perform at work. Limitations vary from person to person and call for individualized solutions.