ADA in the News: October 4, 2017

Fired day after genetic testing and after cancer treatment, employee advances ADA but not GINA claim
Fired for insubordination one day after taking medical leave for genetic cancer testing, and after having previously taken more than 12 weeks of leave for breast cancer treatment, a health services company employee can proceed to trial on her ADA disability discrimination claim, a federal district court in Pennsylvania ruled, denying summary judgment in part. Her claims under the Pennsylvania Human Relations Act and the Genetic Information Non-Discrimination Act failed, however. ( Carroll v Comprehensive Women's Health Services, MDPa, September 27, 2017, Munley, J.)

ADA did not require automatic reassignment when employee didn't apply for it
Granting summary judgment against the EEOC's ADA wrongful discharge claim, a federal district court in South Carolina agreed with a magistrate judge that a long-time employee could no longer perform the essential functions of her position due to deteriorating health, so was not a "qualified individual" under the ADA. The court rejected the EEOC's argument that the employer had a duty to automatically reassign her to a vacant position even though she did not apply for any position. Moreover, the record showed that the employer worked with her to find another position but she refused to apply for any jobs that paid less than her prior hourly rate. (EEOC v McLeod Health, Inc, DSC, September 21, 2017, Hendricks, B.)

Employers win new flexibility, after appeals court finds ADA 'not a medical-leave entitlement'

Cook County Record

Employers now may consider multiple-month medical leave requests under the Family and Medical Leave Act without analyzing Americans with Disabilities Act requirements after a federal court upheld a company's ADA win, declaring the “ADA is an antidiscrimination statute, not a medical-leave entitlement.”

In Severson v. Heartland Woodcraft, the U.S. Seventh Circuit Court of Appeals last month affirmed a district court ruling that long-term leave is not a reasonable accommodation under the ADA. The circuit court also ruled that the defendant in the case did not violate the ADA when it didn't provide an employee with a long-term medical leave of absence.

"Of course, as with most decisions, Severson also creates some questions," Allison Sues, an attorney at Smith Amundsen in Chicago, told the Cook County Record. "While the court has clarified that multiple-month leaves are not reasonable accommodations, it also noted that employers may still be required to provide shorter leaves with finite durations under the ADA."

Heartland Woodcraft wins in medical leave dispute

woodworkingnetwork.com

Store fixture manufacturer Heartland Woodcraft says it won a ruling that permitted it to terminate an employee who did not return after his medical leave expired. 

The ruling, made September 20, 2017, turned on whether or not an employer must extend an employee's time off under the Americans with Disabilities Act if they do not return to work following their leave under the Family & Medical Leave Act.

Two to Three Month Leave of Absence Not a Reasonable Accommodation, 7th Circuit Holds

The National Law Review

How long is too long, when an employee requests leave for medical reasons? Employers have received welcome guidance from the Seventh Circuit U.S. Court of Appeals on this question. In Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017), the Seventh Circuit held that a request for a two to three month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (ADA). This is as close to a bright-line rule as could be hoped for in this all too murky area of ADA law.

Mr. Severson worked in a physically demanding role for a Wisconsin retail fabricator. He suffered from serious back problems, for which he used his full 12 weeks of leave under the Family and Medical Leave Act (FMLA) beginning in June 2013. Back surgery was scheduled for the last day of his FMLA leave, August 27, 2013, and would require him to be absent another two to three months. His employer terminated his employment at the end of his FMLA leave, and notified Mr. Severson that he was welcome to reapply when he was able to work. After surgery, Mr. Severson was cleared to work with a 20-pound lifting restriction on October 17, 2013, and cleared to work without restrictions on December 5, 2013.

Lawyer for Advocates for Individuals with Disabilities Quietly Files More Serial ADA Lawsuits Targeting Valley-Area Hotels and Motels

JD Supra

The lawyer for the controversial Advocates for Individuals with Disabilities (AID), the organization that launched over a thousand nearly identical lawsuits against Arizona businesses last year, has quietly been filing a steady stream of new ADA lawsuits over the past month, targeting Valley-area hotels and motels.

For the past month, AID’s lead lawyer, Peter Strojnik, has regularly filed as many as three lawsuits a day on behalf of Valley resident Fernando Gastelum, alleging violations of the Americans with Disabilities Act (ADA) based on apparent inspections of the defendants’ parking lots. The lawsuits, which are also virtually identical, all claim the disabled plaintiff tried to ascertain whether the defendant was ADA-compliant by first checking a third-party website, then checking the defendant’s website, and finally by calling the defendant’s front desk before visiting the premises to perform an ADA inspection. If the front-desk attendant indicated the lodging was ADA-compliant—as most do—the lawsuit then includes additional claims of negligent misrepresentation and fraud.

Supreme Court Rejects Coca-Cola Case on Vending Machine ADA Compliance

Law.com

The U.S. Supreme Court on Monday denied review in a disabilities rights case that could have had an impact on whether internet services and companies need to comply with the Americans with Disabilities Act.

The case, titled Magee v. Coca-Cola Refreshments USA, was brought by Emmett Magee, a blind man from Louisiana who invoked the ADA in suing Coca Cola because its glass-front vending machines made it impossible for him to know what product he was choosing and at what price. He was thwarted buying soda from vending machines at a hospital and a bus station.

The U.S. Court of Appeals for the Fifth Circuit turned away his claim, ruling that vending machines are “not a physical place open to public access” and therefore don’t fit the definition of “public accommodations” that are required to abide by the ADA. It also said that the hospital and the bus stations were public accommodations and “may very well” bear some responsibility to make vending machines on their premises accessible to the disabled.

EEOC Sues Home Depot For Disability Discrimination

Home Depot failed to accommodate and then fired an employee who had a disability-related emergency at its Peru, Ill., store, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on Sept. 28.

According to the EEOC's lawsuit, the large national home improvement retailer violated federal law by firing April Stevenson, an employee with irritable bowel syndrome and fibromyalgia, rather than allowing her to take a short break to care for herself.

The EEOC brought the suit under the Americans with Disabilities Act (ADA), which prohibits disability discrimination in employment, after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. The Home Depot / Home Depot U.S.A., Inc., Civil Action No. 17-cv-06990) was filed in the U.S. District Court for the Northern District of Illinois, Eastern Division, and has been assigned to U.S. District Judge Robert W. Gettleman. The EEOC is seeking full make-whole relief, including back pay, compensatory and punitive damages, and non-monetary measures to correct Home Depot's practices going forward.

"Our investigation revealed that Home Depot fired Ms. Stevenson after she had a medical emergency related to her disabilities that required prompt attention," said EEOC Chicago District Director Julianne Bowman. "Home Depot failed to provide her adequate means to attend to her disability, then fired her for minor policy infractions that were caused only by Home Depot's failure to accommodate her."

Jacksons Food Sued by EEOC for Disability Discrimination for the Second Time

Jackson Energy, a division of Jacksons Food Stores, violated federal law by refusing to accommodate a worker recovering from wrist surgery and terminating her because of her disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.

According to the EEOC's lawsuit, while working as a dispatcher for Jackson Energy in Meridian, Idaho, Penny Wightman suffered an injury to her wrist that required surgery and was not expected to be fully released to work for at least four to six months. At her employer's request, she returned to work on modified light duty one week after her surgery, and trained a colleague on her regular duties. However, a few weeks after she did so, the company forced Wightman to go on unpaid medical leave until she could return to work without any restrictions. The EEOC alleges that Jacksons ignored Wightman's requests for an accommodation, such as speech recognition software, that potentially would have allowed her to continue to perform her dispatcher duties, and instead they fired her when she exhausted her leave under the Family and Medical Leave Act of 1993 (FMLA) before making a full recovery.

Terminating a qualified employee because of a disability violates the Americans with Disa­bilities Act (ADA). The law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer. The EEOC filed suit in U.S. District Court for the District of Idaho (U.S. EEOC v. Jacksons Food Stores, Inc., d/b/a Jackson Energy, Case No. 1:17-CV-00407-REB) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks monetary damages on behalf of Wightman and injunctive relief, which typically includes training on anti-discrimination laws, posting of notices at the worksite, and compliance reporting.

EEOC Sues Halo Unlimited for Disability Discrimination

Halo Unlimited, Inc., dba Infant Hearing Screening Specialists, a Corona, Calif.-based company, violated federal law when it denied an accommodation to a pregnant employee with a disability, the U.S. Equal Employment Opportunity Commission (EEOC), announced in a lawsuit.

According to the EEOC's lawsuit, an infant screening technician assigned to a hospital in El Centro, Calif., was denied an accommodation for her disability by Halo Unlimited. Instead, the EEOC contends that the company fired the pregnant employee within days of learning of her disability.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. Halo Unlimited, Inc. dba Infant Hearing Screening Specialists, Case No. 3:17-cv-02006-H-WVG) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC's suit seeks back pay and compensa­tory damages for the employee, as well as injunctive relief intended to prevent further discrimination in the workplace.

EEOC Sues Triton Management for Disability Discrimination

Triton Management, LLC, a Carlsbad, Calif.-based company, violated federal law when it failed to accommodate an employee with a disability and instead fired her, the U.S. Equal Employment Opportunity Commission (EEOC), announced in a lawsuit.

According to the EEOC's lawsuit, an employee required medical attention and needed a leave of absence for her disability. The EEOC charges that Triton failed to properly engage in the interactive process and instead terminated her employment. 

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. Triton, Inc., Case No.: 3:17-cv-02004-BAS-KSC) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC's suit seeks back pay, compensa­tory and punitive damages for the employee, as well as injunctive relief intended to prevent further discrimination in the workplace.

Supreme Court Punts On ADA, Special Ed

Disability Scoop

As the nation’s high court enters its new term, the justices declined to weigh in on what types of spaces the Americans with Disabilities Act covers and what counts as a child’s placement under special education law.

In a slew of orders issued Monday, the U.S. Supreme Court said it would not hear a case brought by a man with visual impairment who argued that vending machines ought to be accessible under the ADA. The court also turned away a claim related to the “stay put” provision of the Individuals with Disabilities Education Act.

The ADA case was brought by Emmett Magee who is blind and sought to use Coca-Cola vending machines at a hospital and a bus station. However, because of the machines’ glass-front design, Magee said he was unable to know what he was selecting and at what price.

EEOC: North Dakota health care company allegedly fired employee because of pregnancy-related disability

Legal News Line

The U.S. Equal Employment Opportunity Commission announced a lawsuit Sept. 25 against Trinity Health in North Dakota for alleged pregnancy discrimination.

"The [Pregnancy Discrimination Act] makes it clear that an employer must accommodate pregnant employees to the same extent that it accommodates other employees similar in their ability or inability to work," said Gregory Gochanour, regional attorney of the EEOC's Chicago District Office. "In turn, the ADA requires an employer accommodate disabling conditions. Trinity [followed] neither obligation."

Make Sure You're On Target When Using Direct Threat Defense

Lexology

An employer’s personnel decisions do not always have to be “correct” in order to avoid liability under most federal and state anti-discrimination laws. If you decide to terminate an employee for engaging in workplace misconduct, the fact the employee was actually innocent of the alleged misconduct should be deemed irrelevant in a subsequent discrimination lawsuit.

For example, in the 2009 case of Cervantez v. KMGP Servs., the 5th Circuit Court of Appeals said “a fired employee’s actual innocence of his employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.” This is because, as the 5th Circuit said in the 2010 Moss v. BMC Software, Inc. case, anti-discrimination laws do not protect employees “from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated.” As long as you genuinely believed the employee was guilty of misconduct and relied on that belief as the basis for the termination, you should not be held liable – even if the decision was flat-out unreasonable.

Judge throws out counts against Southboro school in Wi-Fi suit

Worcester Telegram

A federal judge last week threw out most of the counts in a lawsuit brought by a boy and his parents who allege a Southboro private school’s wireless internet was sickening the student.

U.S. District Judge Timothy S. Hillman did, however, allow in his decision last Friday one remaining count of retaliation to proceed, keeping the family’s case against the Fay School and its head of school, Robert Gustavson, open.

The plaintiff in the dispute, “G,” who is represented by his parents, “Mother” and “Father,” filed the suit against the school two years ago in U.S. District Court in Worcester, when he was 12 years old. The family alleged the school would not sufficiently change its Wi-Fi practices to accommodate G, who the suit claims was being made ill by the internet signal in his classrooms.

Central to the family’s case is the existence of a condition known as Electromagnetic Hypersensitivity Syndrome, which causes symptoms like headaches and nausea when the person afflicted with the ailment is exposed to high levels of electromagnetic radiation.

The syndrome is not officially recognized as a distinct medical diagnosis by the World Health Organization, however. In his decision last week, Judge Hillman, while allowing, “for the sake of argument, that EHS is a genuine, albeit rare, affliction,” ultimately found there was no firm proof G’s symptoms were being caused by his school’s wireless internet.

“There is sufficient circumstantial evidence for a reasonable jury to find that something at the Fay School was impacting G, and this might be Wi-Fi, but it is impossible to conclude that the evidence on the record would allow a reasonable jury to find that a causal link has been proved without ‘unsupported speculation’ or ‘brash conjecture.’” Judge Hillman wrote in granting the defense’s motion for summary judgment against G and his family’s claim that the school was in violation of the Americans with Disabilities Act for failing to accommodate the boy’s condition.

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