ADA in the News October 9, 2018

EEOC suit: Lockheed failed to accommodate admin with traumatic brain injury

HR Dive

  • Lockheed Martin Corp. and Lockheed Martin Enterprise Operations violated federal law when they refused to accommodate an administrative assistant with post-concussive syndrome and mild traumatic brain injury, the U.S. Equal Employment Opportunity Commission alleged in a lawsuit (EEOC v. Lockheed Martin Corp. and Lockheed Martin Enterprise OperationsNo. 8:18-cv-02976 (D. Md., Sept. 26, 2018)).
  • Donna Kerekes requested permission to use a transcription or recording device to assist her with tracking rapid speech and note-taking. According to the suit, Lockheed denied the request and did not further engage in the Americans with Disabilities Act's (ADA) interactive process. She took leave and, while she was out, continued to seek accommodation, including reassignment to other open positions. Lockheed failed to provide her with any accommodations and eventually fired her, EEOC said.
  • The suit seeks lost wages, punitive damages and other relief.

DOJ Takes Flexible Position on Website Accessibility Requirements

The National Law Review

Most websites for housing providers and other businesses should be accessible to individuals with disabilities. But how is this enforced? On September 25, 2018, the U.S. Department of Justice issued a letter to a member of the U.S. House of Representatives in which it took the position that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” The DOJ’s position, significantly, does not require conformance with the voluntary Web Content Accessibility Guidelines (WCAG) 2.0 to comply with the ADA in all instances. The DOJ expressly allows for flexibility in how individuals with disabilities are provided access to digital and online content, but does not provide guidance in the implementation of such flexibility.

The DOJ’s letter responds to a June 2018 inquiry from members of the House of Representatives from both parties, which asked the DOJ to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles” absent clear guidance from the DOJ on website accessibility. In its response, the DOJ noted that for more than 20 years, the DOJ has interpreted the ADA to apply to websites of places of public accommodation. The DOJ’s response also clarified that the absence of a specific regulation does not mean that websites are not subject to the ADA’s accessibility requirements. The DOJ indicated in its letter a willingness to work with Congress on legislative action to address the increased website accessibility litigation risk faced by businesses.

The flexible approach to website accessibility expressed by the DOJ provides businesses with additional opportunities to review ADA accessibility compliance programs, as well as responses to increased litigation risk regarding the accessibility of websites.

Website Accessibility Landscape Continues to Lack Clarity as Businesses Await Guidance

Article III of the Americans with Disabilities Act (ADA) prohibits discrimination against disabled persons in the full and equal enjoyment of public accommodation. When a website is considered a place of public accommodation, the website must be accessible to people with disabilities.

ADA Website Cases Continue To Befuddle Businesses

JD Supra

Here is the Southern District of Florida, this past year has been filled with a monumental increase in Americans with Disabilities Act (“ADA”) Title III cases focused on businesses’ web sites.  Ever since the Gil v. Winn Dixie trial, businesses that maintain a web site have been subject to lawsuits (sometimes repeatedly) over their web sites not being accessible under the ADA.  Plaintiffs have been targeting big businesses, small businesses, mom and pop businesses, basically any business that maintains a web site that connects, in even minimal fashion, to its physical location.

First lawsuits over disabled access to websites make their way to Minnesota Press

Echoing a recent trend in other states, for the first time a lawsuit has been filed in Minnesota alleging that websites — in this case, belonging to a county and couple of cities — violate disability law.

Much like lawsuits demanding such things as wheelchair ramps and handicap parking, the suits claim the defendants’ digital real estate is so inhospitable it denies access.

Late last month, Noah J. McCourt, a disability advocate with autism from Waconia, sued Carver County as well as the cities of Norwood Young America and Chanhassen in federal court, claiming their websites violated both state and federal disability law.

ADA Lawsuit Targets Minnesota Local Government Sites

Government Technology

Cities and counties are on the receiving end of a lawsuit alleging their websites are so inhospitable to individuals with disabilities that they ultimately deny them access.

Blind woman files suit over Empire Resorts website access

Times Herald-Record

Two local businesses got swept up in a wave of lawsuits throughout the state filed by a blind woman who alleges their websites violate the Americans with Disabilities Act.

App to facilitate travel for the disabled is great, but problem of accessibility shouldn’t exist to begin with

The Badger Herald

Oversight despite Americans with Disabilities Act leaves many places, both abroad, on-campus, inaccessible

United States: The BakerHostetler Quarterly New York Employment Newsletter - Fall 2018

Mondaq News Alerts

Rise of ADA Website Accessibility Class Actions Lawsuits

  • During the past year, there has been a spike in lawsuits filed against company websites, alleging violations of Title III of the Americans with Disabilities Act (ADA). These cases have targeted employers in a wide variety of industries nationwide. Plaintiffs in these cases have generally alleged that the targeted websites are discriminatory because they are not accessible to people with vision, hearing, or other disabilities. The majority of these lawsuits have been filed in federal court (primarily in New York, Florida, and California), with many being filed as class actions.
  • The relief sought is primarily injunctive, prohibiting any additional alleged discriminatory activity, and requiring website remediation to allow people with various disabilities to access the content therein, in addition to awards of attorneys' fees and costs.
  • In New York, these lawsuits have also included state and local statutory claims asserted under the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL).
  • Earlier this month, two New York City hotel operators got slapped with proposed class actions in federal court accusing them of violating the ADA, the NYSHRL, and the NYCHRL because they failed to ensure that their websites' online reservation systems offer full accessibility to the disabled. The complaint also alleges that both operators run hotels with online reservation systems that fail to describe ADA-accessible features in detail and do not permit disabled individuals to independently assess whether the hotels and their available guest rooms meet their individual accessibility needs.

Disability Rights Group Faults Poll Accessibility in Arkansas


-- Disability Rights Arkansas released a report today that says half of Arkansas polling places present obstacles to accessibility to the disabled.

The group, which surveyed most polls in the state, urged the secretary of state and state Board of Election Commissioners to take immediate steps to move polling place to accessible locations or make current polls accessible. It urged state monitoring to be sure the work has done. Said a release:

“Twenty-eight years have passed since the Americans with Disabilities Act became law,and sixteen years since the Help America Vote Act became law. It is inexcusable that roughly half of the polling places we surveyed have some physical barrier that could prevent a person with a disability from exercising their right to vote,” said Tom Masseau, Executive Director.

How employers should handle requests for workplace accommodations

AZ Big Media

When employees request certain workplace accommodations, it can be difficult for employers to determine when a “reasonable accommodation” request is made, who is “disabled” under the law, and what requests must be accommodated.  For instance, if an employee requests a standing desk to avoid discomfort from prolonged sitting, does the law require the company to provide it?  Must an employee with Post Traumatic Stress Disorder (PTSD) be allowed to bring his support dog to work?  

Spirit Airlines joins the list of airlines modifying their emotional support animals policies


The hoops support-needed fliers have to jump through continues to grow, but airlines feel it’s in everyone’s best interest to curb abuse of the policy

Legal Insider: An Insight Into Reasonable Accommodations for Employees in Virginia

Reston Now

Inside the opioid epidemic: Does your drug-free workplace policy comply with anti-discrimination laws?

Atlanta Business Chronicle

The use of prescription drugs by workers can implicate a complicated tangle of legal issues, particularly with regard to the American Disabilities Act (ADA). Though the use or even misuse of prescription drugs alone is not a disability, prescription drugs are often used to treat injuries, illnesses, or conditions that could qualify as disabilities.

In addition, prescription drug addiction likely constitutes a disability under the ADA. Regardless of whether an individual is or is not legally disabled, that individual may be “regarded as” being disabled based on his or her prescription drug use, which also triggers the ADA.  

Businesses must balance their desire and obligation to maintain a drug-free workplace while respecting an individual’s legal rights. Generally, employers may not ask an applicant or employee about their prescription drug use. To require prescription drug disclosures, the employer must be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions.

While drug testing serves as an invaluable tool to prevent and detect drug-related incidents at work, the ADA protects certain applicants and employees who test positive for prescription medications. Inevitably, when more workers take prescription drugs that effect motor skills, workplace accidents will increase.

3 Steps to Figuring Out ADA Reasonable Accommodations for Mental Illness


What do you do when an employee discloses that he or she is stressed out and needs a reasonable accommodation under the Americans with Disabilities Act, but the requested accommodation strikes you as unreasonable? If you are reading this and thinking “that won’t happen to me—all of my employees are well-adjusted,” think again. The experts tell us that one in five adults is living with a mental illness, and 18 percent of adults in the U.S. suffer from an anxiety disorder. This means that if you haven’t yet had an employee disclose a mental disability, it is probably just a matter of time. In my practice I am seeing more and more requests for reasonable accommodations for stress and anxiety and, unfortunately, this is not always an easy process to manage.

We have talked before about your general obligations under the ADA.

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