ADA in the News: September 25, 2015

Technical Assistance: Protecting the Rights of Persons Living with HIV/AIDS | PDF

EEOC Sues Landis Communities and Landis Homes Retirement Community for Pregnancy and Disability Discrimination and Retaliation

Nursing Home Terminated Pregnant Nursing Supervisor After Requesting Lifting Accommodation. Unlawful Medical Inquiry Conducted, and Refused Rehire Because of Her Disability, Federal Agency Says.

Tucson-Area Trucking Company CTI to Pay $300,000 to Settle EEOC Disability Discrimination Lawsuit

According to EEOC's suit, CTI denied reasonable accommodations to a class of individuals with disabilities. Specifically, CTI denied requests for unpaid leave beyond 12 weeks and transfers into open positions for which the disabled employees were qualified.

EEOC Sues Muskegon Family Care for Disability Discrimination

According to EEOC's suit, Avis Lane worked for Muskegon Family Care as an outreach enrollment coordinator for over a month when it fired her based on information obtained during her pre-employment physical.

Firing an employee due to a disability violates the Americans with Disabilities Act of 1990 (ADA). EEOC filed a lawsuit in U.S. District Court for the Western District of Michigan (EEOC v. M.G.H. Family Health Center d/b/a Muskegon Family Care, Civil Case No.: 1:15-CV-00952) after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC's lawsuit seeks back pay, compensatory damages, punitive damages, and injunctive relief -- including a court order prohibiting Muskegon Family Care from firing disabled employees in the future.

EEOC Sues Windstream for Disability Discrimination

According to EEOC's suit, Windstream hired an employee as an Associate Network Analyst at its Little Rock location in May of 2013.  When the employee began working the late night shift, she experienced extreme blood sugar level fluctuations due to interruptions in her sleep patterns and requested as a reasonable accommodation, a transfer to another shift.   The company denied her request for a reasonable accommodation, and the employee was forced to resign.                             

Such alleged conduct violates Title I of the Americans with Disabilities Act of 1990 (ADA), as amended by the Americans with Disabilities Act Amendment Act of 2008 (ADAAA).  EEOC filed suit in U.S. District Court for the Eastern District of Arkansas, Western Division, Civil Action No. 4:15-cv-597-SWW, after first attempting to reach a voluntary pre-litigation settlement through its conciliation process.  EEOC seeks injunctive relief prohibiting Windstream from discriminating against employees with disabilities, compensatory and punitive damages, and back pay for the employee.

EEOC Sues Methodist Health System for Disability Discrimination

According to EEOC's lawsuit, Adrianna Cook was hired by Methodist to assume the job of patient care technician, which involved lifting and transporting patients.  While performing this duty, Cook severely injured her back and requested a reasonable accommodation in the form of a transfer to a job that did not require heavy lifting. EEOC alleges that when a patient sitter position caring for newborns and scheduling coordinator job became available, Cook applied for these positions, which did not involve any heavy lifting.  Despite Methodist's acknowledge­ment that she was qualified for these jobs, Cook was not given either job as a reasonable accom­mo­dation, and, as a result, the hospital terminated her.  EEOC asserts that employees who are no longer able to perform their jobs due to a disability should not have to compete with non-disabled employees when seeking the accommodation of job reassignment.

EEOC Sues Piercing Pagoda for Disability Discrimination

According to EEOC's complaint, Rose Gravel was employed as a manager at a Piercing Pagoda kiosk in Greenville, N.C., beginning May 2010.  Gravel has degenerative disc disease and fibromyalgia, which cause chronic pain.  On April 26, 2013, Gravel notified Piercing Pagoda she needed to sit for 15 minutes of each hour as an accommodation for her disability.

Before requesting an accommodation, Gravel had been out of work on medical leave related to her disability.  Gravel was cleared by her doctor to return to work with the restriction that she should take sitting breaks within the work day.  Piercing Pagoda refused Gravel's request and insisted that she stand her entire work shift.  Piercing Pagoda fired Gravel instead of allowing her the requested accommodation.

Refusing to grant a reasonable accommodation to a person with a disability violates the Americans with Disabilities Act (ADA), unless it causes an undue hardship for the employer.  EEOC filed suit (Equal Employment Opportunity Commission v. Zale Delaware, Inc., Civil Action No. 4:15-CV-00149-D in U.S. District Court for the Eastern District of North Carolina, Eastern Division) after first attempting to reach a pre-litigation settlement through the agency's conciliation process.  The suit seeks back pay, front pay or reinstatement, compensatory damages and punitive damages for Gravel, as well as injunctive relief.

E-MDS, Inc. Sued by EEOC for Pregnancy and Disability Discrimination

According to EEOC's lawsuit, the employee had heart arrhythmia and an adrenal gland condition that substantially limited her circulatory function.  She was subjected to unlawful discrimination when E-MDS discharged her from her position, client service analyst, because of her sex, pregnancy and disability, particularly based on the refusal by E-MDS to provide leave as a reasonable accommodation to her physical impairment as required by the ADA.

The EEOC said E-MDS selected the employee for termination not for merit-based reasons but simply because she was on extended maternity and disability leave.  The company claimed it needed to reduce its workforce. The pregnant employee's direct supervisor had apparently selected someone else for layoff.  The agency asserts that the pregnant employee with a disability known to the company was more qualified and better suited for retention.  

Denver judge OKs final settlement between Hollister, disabled customers over store access

Denver Business Journal

The Hollister Co. chain of youth-fashion stores has put to rest a long-running legal battle that began in Denver over wheelchair access to its stores.

The Associated Press reports that U.S. District Judge Wiley Daniel in Denver signed off Thursday on a settlement between the chain -- a unit of New Albany, Ohio-based Abercrombie & Fitch Co. -- and disabled customers.

Recent Evolution of an Employer's Duty to Accommodate

The National Law Review

Employers should be aware of the shifting landscape in the duty to accommodate, as highlighted in two recent U.S. Supreme Court decisions: U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch Co. and Peggy Young v. United Parcel Service Inc.

Both cases illustrate the recent trend of increasing the burden placed on employers when faced with an employee’s need, or potential need, for an accommodation. While these cases involved discrimination under Title VII, employers should not assume that the reasoning applied in Abercrombie and Young is exclusive to Title VII.

Reasonable Suspicion Alcohol Test of Employee Was Justified After Bar Fight and Diagnosis of Alcoholic Pancreatitis

The National Law Review

Reasonable suspicion alcohol testing of a safety-sensitive employee who was injured in a bar fight and who took medical leave for “acute alcoholic pancreatitis” was upheld by a federal court in Indiana, even though the testing did not take place until the employee returned to work after his medical leave ended. Foos v. Taghleef Industries, Inc., 2:13-CV-00438 (S.D. Ind. Sept. 22, 2015).

Court: You don't have to be clairvoyant about ADA

Business Management Daily

Merely complaining about aches and pains isn’t enough to put an employer on notice that an employee is disabled and needs an ADA accommodation.

Recent case: Carlen worked for J.B. Hunt as a truck driver, delivering appliances. The company received several customer complaints about Carlen; some of them even banned him from making deliveries. J.B. Hunt warned Carlen about the problem and told him he could be terminated.

As Website/Mobile Accessibility Regulations Near Completion, Plaintiffs' Firms Target Retailers

JD Supra

Retailers and other companies are coming under attack by plaintiffs’ law firms alleging that their websites and mobile applications do not comply with the accessibility requirements of the Americans with Disabilities Act (ADA). Several firms recently have sent letters to businesses demanding that they submit to structured settlement negotiations to resolve ADA compliance issues. As a part of their settlement demands, these law firms are requesting that the retailers and other operators of public websites and mobile applications establish curative measures to resolve accessibility problems — and pay the law firm’s fees and expenses. ‘’

The Pulse: Addiction, Anonymity, And The ADA: A Case Study

Rhode Island Public Radio

People who are in recovery from addiction or mental illness might be open to sharing their story with anyone who asks. Or they might not. There's still enough stigma and misunderstanding about the disease of addiction that keeping it private might feel safer.

ADA and FMLA: What are your notice and posting requirements?

HR.BLR.com

This article series examines similarities and differences between the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) so that you can stay in compliance when both laws apply. Here, we compare the notice and posting requirements for employers under each law. Our previous articles comparing other aspects of the 2 laws are also available.

ADA notice and posting requirements

  • Postings. Employer must post notices containing provisions of the ADA, including the reasonable accommodation obligation, in conspicuous places on its premises.
  • Placement. Such notices should be posted in employment offices and other places where applicants and employees can readily see them.
  • Information. The reasonable accommodation obligation can also be included in job application forms, job vacancy notices, and employee handbooks, and may be communicated orally.

FMLA notice and posting requirements

  • Posting. Employers covered by the FMLA must post a notice to employees of their rights under the Act. This means each employer must post and keep posted this notice in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted.
  • Policies. If a covered employer does not have an employee handbook or other written leave materials, the employer must provide the general notice to new employees upon being hired. If a covered employer has an employee handbook, it is required to develop a written FMLA policy and include it in the handbook.
  • Notices.
    • Eligibility notice. Regulations published by DOL state that employers must notify employees of FMLA eligibility within 5 business days (absent extenuating circumstances) of the leave request. The eligibility notice must state whether the employee is eligible for FMLA leave. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible.
    • Notice of rights and responsibilities. Employers must provide employees with a written notice of rights and responsibilities under the FMLA.
    • Designation notice. Employers must also provide a designation notice, which notifies the employee whether the leave is paid or unpaid and whether it is FMLA-qualifying.

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