ADA in the News October 26, 2018

Illinois District Court Weighs in on Essential Functions Under the ADA

JD Supra

A central tenet of the Americans with Disabilities Act is that an employee must be a qualified individual with a disability to receive its protections. A qualified individual with a disability must be able to perform the essential functions of the position with or without a reasonable accommodation. While an employer may modify the duties for an employee to accommodate medical restrictions, this does not mean the essential purpose of the original job must change. The Northern District of Illinois recently addressed this issue in a case involving a Chicago police officer. The officer had suffered several disabling strokes. For years, she worked in a light duty assignment taking police reports over the phone.

It was undisputed that the employee could no longer walk far, make arrests, or use her gun. The City argued that these were essential job duties of any police officer, even one in a limited duty position. In fact, these duties were memorialized in a 2012 directive. Plaintiff disagreed and argued that she had worked in a light duty position for years, did not perform any of the duties in the 2012 directive. Thus, the duties she could not perform could not be “essential.”

The court disagreed. Just because the employee had been accommodated with a light duty assignment did not mean that the duties in the 2012 directive were not essential. A police officer’s job duties span a variety of tasks, including those the Plaintiff had done in a light duty capacity and those recited in the directive. An employer need not carve out the bulk of the essential tasks of a position and leave remaining the lightest of duties for a disabled employee. The court found that the purpose of the 2012 directive was to ensure that officers “can directly contribute to the central purpose of CPD … of serving and protecting those within its jurisdiction.” Duties that included walking, making arrests, and the ability to use a firearm were essential to the role of a police officer. As the EEOC regulations provide, those duties are part of the reason the position exists. (29 CFR § 1630.2(n)(2)(i)).

The ADA analysis does not end with the above analysis. In the case above, the City needed to show that it participated in the interactive process, such as determining whether there vacant positions the Plaintiff could have performed that would have accommodated her restrictions. For that reason, the City’s motion for summary judgment on the ADA claim was denied.

There are two key takeaways from this portion of this decision. First, employers should evaluate jobs in their workforce and prepare accurate job descriptions that identify the essential duties of each position. Once these are created, conduct periodic reviews of the descriptions as duties may change over time. Another benefit of this job classification process is an opportunity to ensure that positions are properly classified as exempt or non-exempt under the FLSA. The second ADA takeaway is the accommodation inquiry: if the employee can no longer perform the essential tasks of the position she was hired to perform with or without an accommodation, are there other positions available for which she is qualified? The employer does not have to create a position and the employee must be qualified for the position offered. Document this process as it is evidence of your participation in the interactive process. An accurate, up-to-date job description coupled with evidence of the employer’s good faith participation in the interactive process are vital to a strong defense to ADA claims.

DOJ confirms websites are covered by ADA, but offers some flexibility to businesses in complying


Hundreds of recent lawsuits have claimed that companies must have websites that are accessible to disabled individuals. The idea is that a website is a place of public accommodation under Title III of the Americans with Disabilities Act (ADA), and therefore must be accessible for all. Common website problems, including incompatibility with screen-reading software, may create barriers for disabled individuals.

While the ADA itself does not mention websites, the U.S. Department of Justice (DOJ) had long taken the position that websites were covered under the ADA. Then, in 2017, the DOJ withdrew its proposed rule on website accessibility, leaving many in confusion as to the government’s official position on the issue. Making matters worse, most of the lawsuits filed have settled without providing any judicial guidance on the issue. It is easier for most companies to simply fix their websites than it is to fight an accessibility lawsuit. However, some recent developments are providing slightly more clarity for businesses.

Judge's ADA suit alleges court employees withheld key to restroom , wore hazmat suits after accident

ABA Journal

A city court judge in White Plains, New York, has filed a disability discrimination suit that claims court employees withheld a key to a nearby restroom, dragged their feet in installing railings for stairs to the bench, and had a “hysterical reaction” when she was unable to make it to the bathroom in time.

Judge Elizabeth Shollenberger alleges violations of the Americans with Disabilities Act and state laws in the suit, filed on Tuesday in federal court in New York City.

Nursing and health care facilities must pay $465000 - For discriminating against disabled and pregnant employees


Well, chalk up another one – a company owning 12 nursing and health care facilities in upstate New York has just agreed to settle an EEOC lawsuit for $465,000. That’s a big hit.

The EEOC claimed that the company failed to accommodate disabled workers by denying them leave, refusing to allow disabled employees to return to work unless they could do so without medical restrictions, and subjecting employees to impermissible disability-related inquiries and medical examinations.

The EEOC also claimed that the company “fired employees on the basis of pregnancy and failed to accommodate pregnancy-related medical restrictions.”

Judge with Disabled Child Recuses Self from Disability Discrimination Suit

JD Supra

Despite the sensitive nature of employment-related claims like discrimination and retaliation and harassment and hostile work environment, it is rare for judges to admit to personal biases that could influence their decision-making.

But a federal district court judge has recently just done exactly that.  On August 30, 2018, the Hon. Lewis T. Babcock, a Senior United States District Judge for the District of Colorado, recused himself from a disability discrimination lawsuit because his son is quadriplegic and was a plaintiff in another disability discrimination suit.  Judge Babcock shared this family tie, and suggested that it might create the appearance of impartiality, while overseeing oral argument on an unrelated motion.

The matter before Judge Babcock, and the case involving his son, involved different types of discrimination claims under the Americans with Disabilities Act (ADA).  The lawsuit before Judge Babcock concerned a trucking company’s medical leave and fitness for duty policies, which were neutral in theory, but, according to the Equal Employment Opportunity Commission (EEOC), created a pattern of discrimination against disabled employees in practice.  The litigation involving Judge Babcock’s son pertained to wheelchair accessibility issues on buses and trains as places of public accommodation.

Nonetheless, Judge Babcock disclosed his son’s background as a quadriplegic and disability discrimination litigant on the record, and stated that he was concerned both about his ability to be impartial, and the appearance of a lack of impartiality.  The judge’s comments prompted the defendant trucking company to file a motion to recuse Judge Babcock from the case, based on the requirement under 28 U.S.C. § 455 that United States federal judges disqualify themselves “in any proceeding in which [their] impartiality might reasonably be questioned.”  Judge Babcock granted the motion and recused himself before the EEOC could file any opposition.

Since Judge Babcock made the remarks about his son in open court, his comments were characterized as public statements.  Even if a judge does not “reveal their hand” and question their impartiality on the record, a party in an employment matter could seek to disqualify a judge based upon remarks made outside the courtroom.  For example, this could occur if a judge presiding over a disability discrimination case gave a speech at a rally for disability rights stating that disabled persons face discrimination in employment.

Judge Babcock’s recusal differs significantly from other recent headlines regarding alleged judicial bias in the more general sense.  For example, in 2016, then-presidential candidate Donald Trump sought to recuse United States District Court Judge Gonzalo Curiel from presiding over the class action fraud lawsuits against Trump University.  President Trump claimed that there was an inherent “conflict of interest” because Judge Curiel is Mexican-American, and President Trump had declared his intentions to “build a wall” to keep out undocumented Mexican immigrants.  More recently, many commentators questioned whether Justice Brett Kavanaugh’s comments during his confirmation hearings, including characterizing sexual assault allegations brought against him as a “political hit,” could undermine the impartiality of the Supreme Court.

Judicial recusal remains rare, and Judge Babcock’s self-recusal may simply be a blip in the American judicial landscape.  However, in today’s political and cultural landscape (including the #metoo movement), the American public and news media have shown an increased willingness to question the behavior of those in power, and the judiciary is no exception.  In this environment, it remains to be seen whether litigants will seek recusal more often, particularly in cases involving employment harassment and discrimination.

Whether trends the future may bring, businesses with questions about the current impact of this decision on present, impending, or future litigation should contact counsel with experience in litigating matters involving unlawful discrimination in employment and places of public accommodation.

Absolut Care to Pay $465,000 To Settle EEOC Pregnancy and Disability Discrimination Suit

Absolut Facilities Management, LLC, doing business as Absolut Care LLC, a family of nursing and health care facilities in upstate New York, will pay $465,000 and furnish other relief to settle a pregnancy and disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

According to the EEOC's suit, Absolut Care failed to accommodate disabled workers; denied leave as a reasonable accommodation to individuals with disabilities; refused to allow disabled employees to return to work unless they could do so without medical restrictions; and subjected employees to impermissible disability-related inquiries and medical examinations. The EEOC also charged that the company fired employees on the basis of pregnancy and failed to accommodate pregnancy-related medical restrictions.

All this alleged conduct violates the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit (EEOC v. Absolut Facilities Management, LLC et al., Civil Action No. 1:18-cv-01020) in U.S. District Court for the Western District of New York, after first attempting to reach a pre-litigation settlement through its conciliation process.

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