New York Jets player sues NFL for disability discrimination
Dive Brief:
- A professional football player for the New York Jets has sued the National Football League (NFL), claiming that the NFL discriminated against him on the basis of a disability (Miles v. National Football League, No. 19-cv-18327 (N.J. Superior Ct. Sept. 25, 2019)).
- In his complaint, Rontez Miles said he has a condition called alopecia areata that causes, among other things, a sensitivity to light. He had been using an eye shield in conjunction with his helmet and face guard for his entire football career until a 2017 preseason game, when an NFL official told him he could not play unless he removed it. Miles and others told the official about his condition, the complaint alleged, but the official continued to insist that he remove the shield. Miles played without it and suffered a broken orbital bone when another player collided with him during the game; he said he was unable to take appropriate defensive measures due to the bright sunlight.
- Miles alleged that the NFL violated the federal Americans with Disabilities Act (ADA) and New Jersey law by failing to provide a reasonable accommodation and failing to engage in the interactive process, leading to severe and permanent injuries.
Dive Insight:
The ADA requires employers to provide reasonable accommodations to workers with disabilities, unless an accommodation would create undue hardship (which can be a difficult legal standard to meet). Employees and employers commonly arrive at a mutually agreeable accommodation via an interactive process, but employers often fall short in this area, experts have told HR Dive.
Managers may be inadequately trained or resistant to the interactive process, both of which can create obstacles to compliance. Additionally, as Miles alleged in this case, a satisfactory and well-established accommodation can be undermined by a single person who is misinformed or uninformed about what the ADA requires.
The U.S. Equal Employment Opportunity Commission (EEOC) has said theinteractive process requires communication about the precise nature of the problem that is prompting the request, how a disability is triggering a need for an accommodation and alternative accommodations that could potentially be effective. An accommodation need not be the exact one an employee requests in order to be considered reasonable.
Experts recommend that employers have clear policies instructing employees to contact HR if an accommodation is required; train supervisors and managers on the ADA; request medical documentation as needed (but only when needed); ensure that job descriptions stay true to actual job duties; maintain flexibility; keep moving the interactive process forward; and document all discussions and agreements in writing.
Dollar General Worker With Mental Health Issues Gets Bias Trial
A jury must decide if a lead sales associate at a Dollar General store in Missouri was illegally denied leave as an accommodation for her anxiety, depression, and migraine headaches, the Eighth Circuit ruled Oct. 3.
Dolgencorp LLC, which does business as Dollar General, may have been able to accommodate Rochelle Garrison’s mental health conditions in some other way, the court said. Garrison instead was forced to quit in order to “get better” after supervisor Sandra Bell told her leave wasn’t available and that she had to do her job and not be sick all the time, according to Garrison’s lawsuit.
Garrison says she had to repeatedly text Bell, who ran the Concordia, Mo., store, before Bell responded. Those messages and an in-person meeting between Bell and Garrison had made clear that Garrison wanted a leave of absence for mental health treatment, the court said.
Bell had also learned, through prior interactions, of Garrison’s various and worsening conditions and her regular doctor visits, Judge David R. Stras said.
A trial may show all of those communications put Dollar General on notice that Garrison was invoking her rights under federal and state disability discrimination laws even though she never used the “magic words” disability or accommodation, Stras said.
The decision reaffirms the circuit’s view that the need for an accommodation under the Americans with Disabilities Act can sometimes be inferred from the circumstances.
Bell—and thus Dollar General—responded to Garrison’s apparent ADA request by telling her no leave was available because she was one of four “key holders” who had to be available to open and close the store and she wasn’t eligible for Family and Medical Leave Act protection. She should consult her employee handbook, Bell allegedly said.
A jury could find that Bell failed to fulfill the company’s obligation to engage in an interactive process to try to identify a potential job accommodation, Stras said.
Summary judgment against Garrison was proper on her other allegations under the ADA, FMLA, and Missouri Human Rights Act, the court said, affirming a lower court on those claims.
Judges Lavenski R. Smith and Duane Benton joined the opinion.
Bonuchin Law and Reavey Law Offices represent Garrison. Ford & Harrison and Husch & Blackwell represent Dollar General and Bell.
The case is Garrison v. Dolgencorp, LLC, 8th Cir., No. 18-01066, 10/3/19.
Domino’s Delivers a Dilemma to the Supreme Court: A Website Accessibility Case That Could Impact Thousands of Companies
Should companies be sued if blind people can't access their apps and websites? The issue is a matter of civil rights, some claim, but others argue it's a pretext for lawyers to shake down innocent businesses. Now, the Supreme Court could step in to settle the matter in a case involving Dominos.
Earlier this year, the pizza maker asked the top court to overturn a ruling by California's 9th Circuit in favor of Guillermo Robles, a blind man who sued Domino's after he couldn't use its website or app to order a pizza.
As the Supreme Court decides whether to accept the case—a decision that could come as soon as Monday—tens of thousands of other businesses are watching the outcome closely. In 2018 alone, lawyers filed 2,258 lawsuits involving web access, and the number for this year could be even higher. The cases turn on whether companies are violating the Americans With Disabilities Act if visually impaired people can't access their web sites.
Helping Retailers Navigate the Americans with Disabilities Act
The food retail industry is continuously looking for ways to increase cost-predictability to help ensure that prices stay low for consumers. This includes reducing the potential risk of costly litigation wherever possible. Recently, FMI hosted a webinar for members to examine the Americans with Disability Act, or “ADA,” based on recent trends in litigation, and ways to help mitigate potential risk.
In particular, the webinar focuses on Title III of the ADA which applies to “places of public accommodations,” and generally helps to ensure that individuals with disabilities have equal enjoyment of and access to the goods, service, privileges, etc. offered by these places. Our Quick Reference Guide is also available to help remind members what is required under the ADA.
Although there are many legitimate complaints, the ability to get attorneys’ fees and statutory damages (in some states) has to some degree made Title III an easy target for plaintiff’s attorneys looking to make a quick buck. While the number of cases in federal courts continue to increase rapidly, webinar speaker Amber Roller of Ogletree Deakins, indicated that a significant portion never make it to court. Rather, many plaintiff’s attorneys simply send a demand letter alleging a Title III violation and threatening litigation, with the expectation that many businesses will choose to simply settle outside of court. Because the settlements are often between $3,000 - $15,000 depending on the jurisdiction, potential defendants, including food retailers, regularly find it more cost efficient to simply settle.
Many of the demand letters and litigation focus around “architectural barriers” and websites, as these are often easy targets. For the architectural barriers category, parking lots are the subject of many demand letters since potential plaintiffs can often locate violations using satellite mapping systems or without entering the stores. Restrooms are another common target, as plaintiffs can easily search for wrapped pipes, appropriate hardware, etc. or measure sink, strike side door clearance, etc. out of view. Similarly, potential plaintiffs can browse websites for possible violations without even being in the same state as a store.
Disney World guest with autism suing park over disability policy; trial set for next year
A lawsuit filed on behalf of a Disney World visitor with autism is heading to court in February to challenge Disney Parks over their policy for guests with special needs.
The suit was originally filed in 2014, after the park changed its policy allowing such guests to skip the lines at rides and attractions. In its place, Disney began providing Disability Access Service (DAS) cards, which could be used by special-needs guests to obtain a “return time” for a popular ride — much like a FastPass — at which point the guests and those accompanying them would be allowed to enter without waiting.
Houston Airports launch app to assist disabled child passengers
In collaboration with tech firm Inifiniteach, airport operator Houston Airport System has introduced a new app to improve passenger experiences for children with developmental disabilities.
Known as Access Houston Airports, the mobile app will be available free of cost at George Bush Intercontinental Airport (IAH) and William P Hobby Airport (HOU).
Using the new app, families of children with developmental disabilities can search and access a number of aids to aid them through all phases of the airport experience.
New York Judge Criticizes Plaintiff’s ADA Firm For Refusing to Discuss Early Settlement and Engaging in Fee-Churning Litigation Tactics
Seyfarth Synopsis: Businesses are defending record numbers of ADA Title III cases every year. A recent decision in New York underscores the challenges business face when ADA plaintiffs are more interested in protracted litigation than settlement.
The number of ADA Title III lawsuits filed annually has increased more than 300 percent in the last five years. Government officials and a few judges dealing with burgeoning caseloads have taken steps to reign in abuses. Judges have disciplined attorneys for filing indiscriminate claims without a sufficient basis, state attorneys general have stepped in to curb high volume filers of these cases, and members of Congress have urged DOJ to resolve regulatory uncertainty that has sent the number of website accessibility claims soaring to new heights.
There are hundreds, if not thousands, of requirements for physical accessibility with which businesses must comply. Unlike local building code enforcement, non-compliance with ADA design standards is not simply redressed by a fine. Violation of these standards can give rise to a lawsuit in which a prevailing plaintiff can recover reasonable attorneys’ fees under the ADA’s fee-shifting provisions and, in some jurisdictions, an award of damages under state and municipal disability access laws.
In addition to fending off an increasing barrage of ADA lawsuits, businesses face the prospect of expending even more resources when the other side resists settlement in favor of litigation. A New York federal judge recently issued a decision criticizing a plaintiffs-side ADA firm that reportedly had no interest in settling an ADA case, even where the businesses were willing to remediate (and did remediate) ADA violations identified in the Complaint.
In Range v. 535 Broadway Group, LLC, Plaintiff asserted ADA, state and city law claims against a clothing store that occupied two stories in a multi-story, mixed use Manhattan building. While the case was pending, Defendant remediated nearly all alleged barriers and attempted, unsuccessfully, to obtain a settlement demand from Plaintiff. The court ultimately dismissed the ADA claim, and heavily criticized Plaintiff’s firm in doing so in its opinion.
The court stated that the firm was “impeding the progress of the case” by refusing to provide a global settlement demand and expressing “little interest” in resolving claims over barriers that Defendant had already remediated. The court cited other reported decisions critical of the firm’s “litigation gamesmanship,” which was reportedly part of its “repertoire” in ADA cases.
After reviewing Defendant’s motion for dismissal based on the pleadings, Plaintiff’s firm requested to amend the Complaint to withdraw the federal claim and assert only state and city law claims for damages. The court “rejected . . . . that maneuver as a thinly veiled attempt . . . to forum shop and seek a do-over in state court.” Plaintiff then opposed dismissal of the very same ADA claim he previously agreed to withdraw, and advanced an interpretation of the applicable regulation relating to accessible route requirements for multi-story buildings that was, the court noted, inconsistent with his attorney’s position in another case in the same jurisdiction. The court went so far as to describe the argument as one Plaintiff’s attorneys “kn[ew] is a loser.”
According to the court, “[s]uch freewheeling advocacy is of no use to a judge, . . . flirts with violating Rule 11 . . . .[,]” and “waste’s everyone’s time.” The court dismissed the ADA claim, but exercised supplemental jurisdiction over Plaintiff’s New York City Human Rights Law claim, which the court held could not be dismissed on a motion for judgment on the pleadings.
Businesses are defending a record number of ADA lawsuits annually. As a remedial statute that awards attorneys’ fees to a prevailing plaintiff, businesses are often incentivized to reach a settlement before expending significant resources in litigation. The emergence of plaintiffs-side attorneys interested in pursuing protracted litigation, despite a business’s interest in an early resolution, represents an additional concern for businesses seeking to limit their exposure from predatory ADA lawsuits.
Police Officer Sues County for Denying Transgender Health Care
A trans police officer in Georgia has filed suit against her county for excluding medically necessary coverage for transgender people in its health care plan.
Anna Lange has served as a sheriff’s deputy with the Houston County Sheriff's Office for 13 years, and in 2017, she began transitioning on the job after coming out to colleagues as a woman. This process was delayed, however, when the county refused to cover any needs related to gender-affirming surgical procedures or hormone therapy in her employee health plan.
Lange testified before the Houston County Board of Commissioners asking them to reconsider, but the county maintained its policy is to deny transition coverage.
After a lawsuit filed in the U.S. District Court for the Middle District of Georgia on Wednesday, Lange said the decision is discriminatory and hurtful, particularly given her many years of dedicated service on the force.
“I have devoted more than a decade of my life to a job that I love with the backing of supervisors and colleagues who truly respect my work,” she said in a statement. “Despite my dedicated years of service, the county has singled out and excluded the medically necessary care that I need simply because I’m transgender.”
“I just want to be treated fairly and earn the same benefits as my co-workers who serve on the force,” Lange added.
Lange is being represented by the Transgender Legal Defense and Education Fund, a New York City-based nonprofit advocacy group. In a statement, Senior Staff Attorney Noah Lewis said the county’s refusal to cover trans medical needs “violates Georgia and federal law” under the 1964 Civil Rights Act and the Americans with Disabilities Act.