Consent Decree: Miami University et al.
McDonald's to Pay $56,500 to Settle EEOC Disability Discrimination Suit
McDonald's Corporation and McDonald's Restaurants of Missouri will pay $56,500 and furnish other relief to settle a disability discrimination suit by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. EEOC had charged that McDonald's refused to interview a deaf job applicant at its Belton, Mo., restaurant because of his deafness.
According to EEOC's lawsuit, the young man applied online in June 2012 for a position at the Belton McDonald's. The applicant, who is unable to hear or speak, had previous experience working at a McDonald's in another state as a cook and clean-up team member. According to the suit, when the restaurant manager learned that the young man needed a sign language interpreter for his job interview, she canceled his job interview, even though the applicant's sister volunteered to serve as an interpreter. The restaurant continued to interview and hire new workers after the young man made several attempts to reschedule an interview.
Such alleged conduct violates the Americans with Disabilities Act (ADA). EEOC filed its lawsuit in U.S. District Court for the Western District of Missouri, (EEOC v. McDonald's Corporation, et al, 4:11-CV-00395), in December 2015 after first attempting to reach a pre-litigation settlement through its conciliation process.
Salvation Army Sued by EEOC for Disability Discrimination
Global charitable organization the Salvation Army violated federal law when it refused to hire a young man with an intellectual disability for an entry-level position at its Wasilla, Alaska thrift store, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.
Based on the strength of his initial job interview, EEOC found that the Salvation Army store manager actually recommended hiring the applicant, who was in his early 20s, as a donation attendant in spring 2014. This position required no prior experience and simply involved accepting and sorting goods. The young man had completed high school and a follow-up job readiness program, finished three internships at medical centers, and held a part-time job at a local church. However, the Salvation Army requested a highly unusual second interview, and EEOC charges that the organization ultimately rejected this applicant due to stereotypes about his ability to interact with the public.
McDonald's to Pay $56500 to Settle EEOC Disability Discrimination Suit
JD Supra
McDonald's Corporation and McDonald's Restaurants of Missouri will pay $56,500 and furnish other relief to settle a disability discrimination suit by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. EEOC had charged that McDonald's refused to interview a deaf job applicant at its Belton, Mo., restaurant because of his deafness.
According to EEOC's lawsuit, the young man applied online in June 2012 for a position at the Belton McDonald's. The applicant, who is unable to hear or speak, had previous experience working at a McDonald's in another state as a cook and clean-up team member. According to the suit, when the restaurant manager learned that the young man needed a sign language interpreter for his job interview, she canceled his job interview, even though the applicant's sister volunteered to serve as an interpreter. The restaurant continued to interview and hire new workers after the young man made several attempts to reschedule an interview.
Such alleged conduct violates the Americans with Disabilities Act (ADA). EEOC filed its lawsuit in U.S. District Court for the Western District of Missouri, (EEOC v. McDonald's Corporation, et al, 4:11-CV-00395), in December 2015 after first attempting to reach a pre-litigation settlement through its conciliation process.
In addition to monetary relief for the applicant, the three-year consent decree resolving the suit requires McDonald's, which recently sold the Belton restaurant, to ensure that the new owner trains management employees on the ADA's requirements, including providing reasonable accommodations to disabled applicants and employees. The restaurant will also maintain a telephone line that applicants can call to request accommodation, and McDonald's will submit annual compliance reports to EEOC.
"Federal law clearly requires employers to provide reasonable accommodations to deaf and hearing-impaired employees and applicants," said EEOC St. Louis District Director James R. Neely, Jr.
EEOC Regional Attorney Andrea G. Baran added, "Unemployment rates for disabled workers far exceed those of the general population, and employers create a huge barrier to employment when they fail to provide necessary reasonable accommodations to applicants with disabilities. Such behavior is short-sighted in addition to being unlawful."
EEOC Senior Trial Attorney Dayna F Deck said, "Employers must recognize their obligation to accommodate applicants with disabilities. If a deaf applicant's primary language is American Sign Language, then working with the applicant to have an ASL interpreter at the job interview is key to providing that applicant an equal opportunity to compete for the job."
Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC's Strategic Enforcement Plan (SEP).
EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma and a portion of southern Illinois. Further information about EEOC is available on its website at www.eeoc.gov.
Former Sacred Heart Employee Alleges Discrimination After Dementia Diagnosis
WNPR News
An athletic facilities director at Sacred Heart University is alleging that he was unfairly fired after he told the school -- in the interest of full disclosure -- that he’d been diagnosed with dementia.
Gary Reho filed suit in U.S. District Court earlier this month, charging that the Fairfield-based school is in violation of the Americans with Disabilities Act.
When there’s a diagnosis of dementia, how long should someone continue to hold onto a job? It’s a tough question, and the answer may differ for each person, according to the Alzheimer’s Association.
Considerations include: the degree of impairment, the demands of the job, tolerance of the employer and acceptance by co-workers.
Reho was first hired by Sacred Heart in 1990 as a football coach. Six years later, he became associate director of athletics, and a year after that was appointed Director of the William Pitt Health and Recreation Center and Athletic Facilities.
According to the complaint, just after his diagnosis his doctor wrote, “Mr Reho’s cognitive functioning and emotional well-being will be improved by returning to work.”
Reho passed along to Sacred Heart, his doctor’s recommendations for modifications to his job duties.
But the suit alleges that despite phone calls and letters between his doctor and university authorities, Reho was terminated from his position in 2015.
The university has so far declined to comment on the case, due to the ongoing litigation.
Eighth Circuit Rules That Sleep Apnea Testing Does Not Violate Disabilities Act
JD Supra
On October 12, 2016, the U.S. Court of Appeals for the Eighth Circuit, which hears appeals from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, ruled that a trucking company did not violate the Americans with Disabilities Act (ADA) when it stopped giving work to a driver who refused to submit to in-lab sleep apnea testing.
Salvation Army Refuses To Hire Man With Intellectual Disability: EEOC
Lexology
Alas, it is so. The EEOC has just sued a Salvation Army thrift store in Wasilla, Alaska (I think I can see it from my roof!), for allegedly refusing to hire an otherwise qualified young man for an entry-level job accepting and sorting goods because he has an intellectual disability. The EEOC says that he was rejected because of “stereotypes about his ability to interact with the public.”
“Fears, biases or stereotypes” against people with disabilities is at the core of many lawsuits filed by the EEOC under the Americans With Disabilities Act (“ADA”). One EEOC attorney said last year that “It’s not only bad business to forgo hiring a qualified employee simply because of fears, biases or stereotypes against people with disabilities, it’s also a violation of the law.”
Said another EEOC attorney a year ago: “People with disabilities have one of the highest unemployment rates in the country. Providing equal employment opportunities to all job applicants – including those with disabilities – is not just the law, it is good for our economy and our workplaces.”
Takeaway: As I have commented before, the ADA provides that an employer must engage in an “interactive process” with an otherwise qualified employee (or applicant) who is claiming a disability, towards the end that a reasonable accommodation is provided. That is, it must engage in meaningful discussions as to the proposed accommodation to the known physical or mental limitations of an otherwise qualified individual. The EEOC, and the courts, have consistently held that an employer has an “affirmative duty” to engage in this interactive process with the applicant or employee.
PS: Please don’t make me keep repeating that this kind of lawsuit is “low hanging fruit” to the EEOC. As a regional director of the EEOC said some time ago (about an ADA suit against a medical facility), it is “ironic when a hospital, which is dedicated to caring for the health of its patients, ignores the medical concerns of an employee, refuses to even discuss providing a needed workplace modification, and instead fires him because of his disability.”
The same would appear true for the Salvation Army.
4 reasons why an accessible website is a win-win
Opensource.com
Why do some people choose to make a website accessible? Some people are do-gooders who, like the World Wide Web Consortium (W3C), believe that "the web is fundamentally designed to work for all people, whatever their hardware, software, language, culture, location, or physical or mental ability." And, some people do it because they are compelled by law, based on Section 508 of the Americans with Disabilities act. Most federal and state institutions require that websites are accessible to people with a variety of disabilities. Though they may want to do good, their main motivation is to avoid costly legal problems.
Miami U. reaches deal with feds in blind
WHIO
Miami University has reached an agreement on a consent decree with the Department of Justice regarding a lawsuit over the university’s responsibilities under the Americans with Disabilities Act to provide access to web and other technologies to individuals with disabilities.
Federal rules against ADA lawsuit, lawyer
East Valley Tribune
A federal judge imposed sanctions against a controversial attorney and his co-counsel, citing their “bad faith behavior” in their dealings with a defense attorney after they filed a “boilerplate” suit accusing a property company of violating the federal Americans with Disabilities Act.
Extended Leave Under the ADA: Necessary Next Steps to Consider
JD Supra
Earlier this summer, I wrote an article for the July issue of our firm's L&E Newsletter, surveying cases on when an employee's request for extended medical leave is, and is not, a reasonable accommodation under the ADA. As that article explained, there is a recent trend in litigation demonstrating that leave beyond the FMLA – and, even beyond an employer's (otherwise generous) leave policies – can be required by the law. The goal of the article was to provide employers with tangible boundaries to operate within on this challenging new issue. Knowing those boundaries, however, is only half the battle.
Determining what to do next – such as, whether to adjust maximum leave policies and how to manage employees who are returning to work not fully recovered – are all matters that employers should be considering and planning for now. Indeed, action may be necessary in many instances. The purpose of this article, therefore, is to provide some insight and guidance on those particular implementation issues.
Bank Websites Targeted for Title III ADA Violations – 12 Ways to Comply
JD Supra
An increasing number of companies in the banking industry are reporting receiving demand letters from law firms alleging website violations under Title III of the Americans with Disabilities Act (Title III). These letters claim that the institution's website contains accessibility barriers, including but not limited to, failure to provide text content, inability of the user to re-size text, lack of functionality through the keyboard interface, inability to program the default human language of each web page, and absence of labels or instructions when the website content required user input.
Eighth Circuit Upholds Trucking Company's Sleep Study Requirement Based On Driver BMI
Mondaq News Alerts
On October 12, 2016, the U.S. Court of Appeals for the Eighth Circuit found in favor of a large transportation employer’s driver sleep study testing requirement in a lawsuit challenging the practice under the Americans with Disabilities Act (ADA). The plaintiff driver in Parker v. Crete Carrier Corporation alleged that his employer violated the ADA by adopting a program requiring a class of its truck drivers, which included him, to undergo in-lab sleep studies.1 After medical advisory recommendations made to the Federal Motor Carrier Safety Administration (FMSCA) linked obstructive sleep apnea (OSA) to an increased risk of vehicle crashes, the employer implemented the sleep study requirement using driver Body Mass Index (BMI) as the sole criteria for participation. The plaintiff refused to participate, and claimed that the sleep study requirement was an unlawful medical examination. He also alleged that the employer discriminated against him on the basis of a perceived disability, OSA, after it suspended him. The Eighth Circuit, however, rejected his arguments, concluding that the employer’s program reasonably identified a class of drivers at risk for OSA and that the testing itself was job-related and consistent with business necessity. The decision is particularly important to the transportation industry, which has struggled with whether, and how, to address sleep apnea among commercial drivers in particular. However, the Eighth Circuit’s decision is actually important to employers outside of the transportation industry as it provides a clear roadmap on what any employer must do to ensure that its medical testing program meets ADA requirements.
Medical Exams under the ADA
The ADA generally prohibits employers from requiring employees to submit to medical examinations or inquiries unless those examinations or inquiries are “shown to be job-related and consistent with business necessity.”2 The employer’s policy in Parker required a sleep study for any driver with a BMI of 35 or greater. The plaintiff, who met this criterion, did not dispute that sleep studies might be appropriate for some drivers, but alleged that the employer violated the law when it failed to consider his individual characteristics in requiring him to participate in the study. Specifically, the driver argued that because he had a good safety record, had no documented sleep issues at work, and had recently received a Department of Transportation (DOT) medical certification, he should not be subject to the testing requirement. When his employer declined to excuse him from participation in the sleep study, he obtained a note from his private physician stating that the physician did not personally think a sleep study was necessary. However, despite the fact that the driver submitted his own physician’s note, he was still required to undergo the sleep study.
Rejecting the argument that decisions to seek medical information from employees must be made on an individualized basis, the court confirmed that medical examinations may be lawfully required of a class of workers, as long as the employer has a “reasonable basis for concluding that the class poses a genuine safety risk and the exam requirement allows the employers to decrease that risk effectively.”3
OSA, Safety and Diagnostic Sleep Studies
Through the admission of evidence, including expert testimony, the employer was able to establish critical facts in support of its program. Specifically, the employer demonstrated that: (1) untreated OSA markedly increases the risk of accidents; (2) an in-lab sleep study is the best way to prove or disprove an OSA diagnosis; (3) obesity (as expressed in terms of BMI) is the primary anatomic risk factor and is closely correlated with a diagnosis of OSA; and (4) OSA can be treated, thereby reducing the accident risk otherwise associated with the condition.
Based on the employer’s showing, the Eighth Circuit concluded that the sleep study requirement was job-related “because it deals with a condition that impairs drivers’ abilities to operate their vehicles.”4 The court further held that the requirement was “consistent with business necessity” because it would “determine whether an individual has [OSA], a condition that poses a public safety hazard.”5 The court went on to find that the sleep study itself “is no broader or more intrusive than necessary” because an in-lab exam is the best way to diagnose OSA. The court agreed the scope of the employer’s program was reasonable “given the correlation between high BMIs and [OSA]” and because the tests enabled the employer to decrease the safety risk posed by drivers with OSA by ensuring that affected drivers received treatment.
Rejecting the plaintiff’s argument that his individual attributes merited an exception from the sleep study requirement, the court noted that none of the plaintiff’s other individual attributes “establish that he does not suffer from sleep apnea” or otherwise undermine his employer’s “reasonable basis for concluding that he poses a genuine safety risk.”6 The court’s ruling confirmed that the sleep study requirement was lawful under the ADA, affirming a Nebraska district court’s grant of summary judgment for the employer on the medical-examination claim.
The Eighth Circuit also briefly addressed the plaintiff’s alternative argument that his suspension for refusing the sleep study was unlawful because his employer regarded him as having an impairment, conduct prohibited by the ADA. The plaintiff had alleged that his employer regarded him as having OSA, that he was a qualified employee, and that the employer wrongfully suspended him for refusing to undergo an unlawful medical examination. Even assuming that the employee had satisfied the threshold requirements to state a claim, the court found that he could not prevail, because the sleep study requirement itself did not violate the ADA, and therefore, the employee’s refusal to submit to the sleep study was a legitimate, nondiscriminatory reason for the suspension. According to the Parker decision, the employer was well within its rights to impose, and enforce, the in-lab sleep study requirement.
Of course, sleep study requirements, and resultant mandatory OSA treatments, remain controversial not only because of discrimination concerns, but also because of their high costs and potential intrusiveness. This debate will surely intensify as the FMSCA and Federal Railroad Administration explore possible new rules addressing OSA among commercial drivers and rail workers.7 Setting aside the debate over OSA detection and treatment, however, the Eighth Circuit’s precedent in Parker offers a remarkably clear outline of how any employer may establish and, if necessary, defend mandatory medical testing programs that comply with the ADA.
PerezHilton.com
Andres Gomez, the man who brought the suit, says he is legally blind and that he uses screen reader software to go online — but his software couldn't read ANYTHING on the DASH website! 3
Now, because he claims that DASH is well aware of the problem and yet refuses to fix it, he is suing, and accusing the store of violating the Americans With Disabilities Act in shutting out blind customers from shopping there online.
Gomez wants DASH to re-do their website so it complies with federal law… and he also wants a lot of cash.
Interestingly, Kim, Khloé, and Kourtney Kardashian are NOT named defendants in the suit — it's just DASH as a business.
ADA Compliance & Defense Lawyer: ADA Website Accessibility Lawsuits Escalate
Hotel News Resource
JMBM’s ADA Defense & Compliance team takes the ADA seriously, and we recommend that our clients take a proactive approach in identifying and solving potential problems before they become lawsuits. For many years now, we have called attention to the importance of making website ADA-compliant, but hotels, resorts, restaurants, banks, retailers and other owners and operators of commercial real estate continue to be vulnerable to one of the more recent and serious waves of ADA complaints. See Charles Schwab settles web site accessibility claim and New ADA standards for website accessibility.
Another Viewpoint: Lawsuits give ADA a bad name
Sarasota Herald-Tribune
Citing the Americans with Disabilities Act, one Monroe County, Florida, resident has filed 14 lawsuits in Florida, nine in Indiana and five in Michigan.
It's the law! If this were real life, healthy Tony Romo would win his job back from Dak Prescott
Dallas News
"We've got to get Romo in a situation so that it is a situational decision," said Dallas Cowboys owner Jerry Jones in response to a question about whether he will change his mind about his permanent starting quarterback for the season.
What if Jones was an ordinary employer and rookie Dak Prescott and veteran/Pro Bowler Tony Romo were ordinary employees and mere mortals like the rest of us?
Of course, this "real world" analysis doesn't apply to football royalty who undoubtedly have injury clauses in extremis, but if they were human, this is what the situation would look like under the law.
In the real world, Romo has rights. Employment rights. He can claim protection of leave under the Family Medical Leave Act (FMLA) that would allow him at least 12 weeks off for a serious health condition, albeit unpaid.
If Romo's doctor releases him to return within that time, Jones must restore Romo to his original position, or one that is virtually identical. "Backup quarterback" doesn't sound virtually identical to "starting quarterback."
Jones has rights, too. He can claim Romo is a highly paid "key" employee whose reinstatement would cause "substantial and grievous economic injury" to its operations. In that case, Jones doesn't have to reinstate Romo under the FMLA, but he would have to give advance notice to Romo that he is "key" before Romo started the leave.
Romo has more rights. He's disabled under the American with Disabilities Act (ADA). He has a physical impairment that substantially limits his ability to walk, stand, sit, sleep, or any other major life activity.
Not too long ago, the word "substantially" meant that the disability had to have a huge, life-altering impact under the law. However, Congress amended the ADA so that these days, substantial just means "enough to see" the disability.
Today, just about all physical impairments qualify as a disability under the ADA, even temporary disabilities. Two of the most common disabilities recognized under the ADA are back and spinal problems. They make up about 20 percent of the disability charges filed with the EEOC.
Jones can say that Romo still has to be able to do his job with his disability. And he would be right. Except that Jones has to reasonably accommodate Romo's disability, which includes a reasonable amount of time off to have surgery or heal. Jones does not have to accommodate Romo to the extent that it causes Jones or the Cowboys undue hardship, considering the size of his operation and the cost to accommodate.
Service dog or pet? Maine clarifies law
Press Herald
The Maine Human Rights Commission says many people in the disability community are unaware of recent changes, which include a new category called assistance animals.