ADA in the News: October 6, 2017

EEOC Sues Evergreen Kia For Sexual Orientation and Disability Discrimination

Chicago car dealership Evergreen Kia violated civil rights law by subjecting an employee to harassment because of his sexual orientation and disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on October 2.

In its lawsuit, the EEOC alleges that the owner of Evergreen Kia harassed a car salesperson for suffering from Crohn's disease and for being gay. The agency said the owner often used homophobic slurs when talking to and about the salesperson, made offensive jokes about gays, and made offensive comments about his disability.

EEOC Sues Heart's Desire for Disability Discrimination

JD Supra

Heart's Desire, LLC, a Monroe, La., home-based care provider, violated federal law when it discriminated against an employee because of disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed here on September 21, 2017.

The EEOC's suit alleges that Heart's Desire, LLC fired a caregiver after he disclosed that he has the human immunodeficiency virus, commonly known as HIV, and that medication he was taking to treat it had interfered with the results of a drug "screen." The results from that screen had preliminarily suggested that the employee might be using drugs illegally.

The EEOC asserts that even though the drug screen results were categorically refuted several hours later by a definitive laboratory drug test, Heart's Desire used those results as a pretext for terminating the caregiver. The EEOC's suit contends that Heart's Desire's reason for firing the employee - that he was using drugs illegally - was a pretext for its actual reason for firing him - that he had HIV. In so doing, Heart's Desire, the EEOC says, violated the Americans with Disabilities Act (ADA), which prohibits an employer from discriminating against an employee because of disability.

Nine Credit Unions Hit With ADA Suits Over Websites

Credit Union Times

At least nine credit unions have been hit with class-action lawsuits in recent weeks over the accessibility of their websites, according to court documents.

The complaints, all of which were filed in District Courts in Virginia by the same two law firms on behalf of the same plaintiff, claimed the credit unions — ABNB Federal Credit Union, Arlington Community Federal Credit Union, Blue Eagle Credit Union, Cadmus Credit Union, Henrico Federal Credit Union, Member One Federal Credit Union, NRL Federal Credit Union, Pentagon Federal Credit Union and Virginia Credit Union — operated websites that were inaccessible to visually-impaired users. 

Caught between the FMLA and the ADA

Lexology

What are my obligations to an employee who has taken the 12 weeks of FMLA leave but whose medical conditions nonetheless do not allow the employee to return to work? This is one of the more challenging questions in employment law. Employers in states that make up the 7th Circuit — Illinois, Indiana and Wisconsin — now have the benefit of favorable guidance on this issue.

Here’s the situation. Your employee, Polly Ester, has a medical condition that requires her to take time off of work. Polly is FMLA-eligible, and she completes and timely returns all required paperwork. You, as the good employer (and despite the significant inconvenience to your business), comply with your FMLA obligations and place Polly on unpaid leave.

Twelve weeks later, Polly advises you that she still can’t return to work and requests an “accommodation” of extended leave under the Americans with Disabilities Act. What does she need? More time off work — of an unknown duration, perhaps months. You look to the EEOC, and you learn that the EEOC “takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA.” What do you do? You don’t want Polly to sue you, but you need someone to perform Polly’s job function!

The September 2017 decision in Severson v. Heartland Woodcraft, Inc. now helps employers in the 7th Circuit answer that question. While employers may be required to provide days or a few weeks beyond the FMLA-required 12 weeks, it is now clear that employers are not required to provide long-term medical leave spanning months as an accommodation under the ADA. The court said that the Americans with Disabilities Act “is an anti-discrimination statute, not a medical leave entitlement” and ruled that a proposed accommodation of two to three months of leave was not reasonable under the ADA. “Simply put, an extended leave does not give a disabled individual the means to work; it excuses his not working.”

What does Severson mean for you? Polly’s request for long-term leave is “simply unacceptable as a matter of law.” Nonetheless, it is important to communicate with your employees on FMLA leave to address any potential issues upon their scheduled return.

Unstated Takeaways from the Third Circuit's Recent Decision in the FMLA/Workers’ Compensation Arena

The National Law Review

A recent decision rendered by the Third Circuit Court of Appeals serves as a timely reminder that employers must consider the legal implications of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) when litigating workers’ compensation claims. In Zuber v. Boscov’s, the Court determined that a release obtained in a workers’ compensation case did not act as a bar to later-asserted FMLA claims.

United States: The ADA Is Not An Extended Medical Leave Statute, Says the Seventh Circuit

Mondaq News Alerts

On September 20, 2017, the Seventh Circuit drew a clear line in what has been an ambiguous area: a "multi-month" leave is not a "reasonable accommodation" under the ADA. In the Seventh Circuit at least, employers are no longer required to provide open-ended leaves of absence as a "reasonable accommodation." In Severson v. Heartland Woodcraft, Inc., Severson took leave from his job for back problems. Severson's doctors scheduled back surgery for the day his job-protected leave under the Family and Medical Leave Act (FMLA) expired. He requested additional leave from work for recovery as a "reasonable accommodation" under the Americans with Disabilities Act (ADA). But because Severson was unable to perform his job's essential functions for months from his surgery, his employer denied his requested accommodation and terminated his employment.

Why the tech industry needs people with disabilities — and vice versa

The GroundTruth Project (blog)

For the roughly one billion people with disabilities around the globe, new technology can be life-changing — from robotic arms to eye-tracking sensors to tools that help those on the autism spectrum communicate their feelings.

Yet in the world of tech, so many companies fall short in designing products for those with disabilities and providing accommodations for a diverse range of employees.

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