ADA in the News: April 23, 2018

Hertz to Pay $45000 to Settle EEOC Disability Discrimination Lawsuit

The National Law Review

The Hertz Corporation has agreed to pay $45,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission, the agency announced today.

According to the EEOC's lawsuit, Hertz actively recruited Norman "Dan" Newton for a sales position in its car sales division in Denver after spotting his resume online. Newton agreed to meet with the local sales manager for an interview. At the interview, according to the EEOC, the Hertz manager expressed reservations about Newton's mobility because he used a cane. The manager later informed Newton that despite his competitive qualifications, which included over ten years of car sales experience, Hertz hired two other people. Both of those individuals possessed significantly less car sales experience than Newton, and one of them had never previously sold cars, according to the EEOC.

The Americans with Disabilities Act (ADA) protects applicants and employees from discrimination, including refusal to hire, because of a disability, a record of a disability, or because they are regarded as disabled. The EEOC filed its suit in U.S. District Court for the District of Colorado (EEOC v. The Hertz Corporation, Case No. 1:17-cv-02298-KMT) after first attempting to reach a pre-litigation settlement through its conciliation process.

The two-year consent decree resolving the case requires Hertz to pay $45,000 to Newton and provide him with an apology. In addition, the decree requires Hertz to adopt and maintain policies and practices that will provide its employees a workplace free of disability discrimination in the future and that will encourage employees to report discriminatory conduct. The company will also provide training to employees at its Hertz Car Sales facilities in Colorado on preventing disability-related discrimination. Hertz also agreed to post a notice in these Colorado facilities notifying employees of the provisions of the ADA and their right to a work environment free of disability discrimination.

"Employers must focus their hiring efforts on whether employees have the skills, abilities and qualifications needed for the position, and not on any real or imaginary disabilities," said Mary Jo O'Neill, regional attorney for the EEOC's Phoenix District.

Elizabeth Cadle, district director for the EEOC's Phoenix District, which includes Denver in its jurisdiction, added, "We commend Hertz for working with the EEOC to promptly resolve this matter within less than six months of the filing of the lawsuit."

CSX must face female engineer's suit alleging sex, disability bias

Indiana Lawyer

The CSX railroad lost its bid to dismiss a lawsuit filed by a fired female locomotive engineer who alleges gender and disability discrimination. The complaint also contends CSX more severely disciplined its female workers than male workers, among other allegations.

The suit was brought by Linnie Lou Archer, who had been working on the railroad since 1999 and employed as a locomotive engineer since 2002. Archer was fired in June 5, 2015, after CSX said she committed three “serious offenses” in the prior 10 years under the company’s employee policies.

But Archer said in her amended complaint the discipline she was cited for was pretextual, and her alleged rule violations should have been classified as minor offenses, at most, that would not be cause for termination.

In addition to the alleged gender discrimination, Archer claims she was terminated after she took preauthorized time off under the Family and Medical Leave Act for depression and anxiety. She also claims retaliation under the ADA.

Macy's To Pay $75000 To Settle EEOC Disability Discrimination Lawsuit

The National Law Review

Macy's will pay a former long-term employee $75,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. The EEOC's lawsuit charged Macy's with firing an asthmatic employee, rather than excuse a one-day absence the employee needed to address emergency complications arising from her disability. This alleged conduct violated the Americans with Disabilities Act (ADA).

The EEOC filed suit in the U.S. District Court for the Northern District of Illinois, Eastern Division (Equal Employment Opportunity Commission v. Macy's, Inc/Macy's Retail Holdings, Inc.; Civil Action No. 17-cv-05959) on Aug. 16, 2017 after first attempting to reach a pre-litigation settlement through the EEOC's conciliation process.

According to the EEOC's lawsuit, the asthmatic employee worked for Macy's for nearly eight years, but she was fired after a one-day absence due to needing immediate medical attention for her asthma. Macy's policy permits absences for disability-related reasons. However, in this case, Macy's denied the employee's request to excuse the absence, even though she had to be seen in a hospital emergency room, and fired her three weeks later.

Macy's will pay $75,000 in monetary relief to the employee as part of a consent decree settling the suit and will provide additional relief intended to improve Macy's workplace for employees with disabilities. Under the decree, Macy's will train certain employees on disability law and accommodation requirements under the ADA. Macy's will also monitor requests for accommodation and complaints of disability discrimination at its two Chicago stores and report those to the EEOC.

"The ADA requires employers to reasonably accommodate disability-related absences that enable their employees to perform their job," said Julianne Bowman, EEOC's district director in Chicago. "Here, a one-day absence would have enabled the employee to return to the job she held for almost eight years. We are pleased with today's settlement which will compensate the victim and monitor Macy's accommodation practices with respect to the ADA."

Greg Gochanour, the regional attorney of EEOC's Chicago District Office, said, "Macy's response to the employee's absence was not reasonable. The employee found herself in a potentially life threatening circumstance and phoned Macy's to explain her absence before going to the hospital. The following day, she provided Macy's documentation from the hospital showing she was treated for asthma. Rather than accommodate the employee, Macy's fired her."

ADA Website Accessibility Lawsuits on the Rise: Companies Should Review Their Potential Exposure

JD Supra

With the recent spike in website accessibility lawsuits, companies should review their websites for compliance with the Americans with Disabilities Act (“ADA”) in order to avoid litigation and should consider taking steps to remediate their websites to ensure people with disabilities have equal access to consumer-facing content.

During the last year, there has been a substantial rise in lawsuits filed against many consumer-facing websites alleging violations of Title III of the ADA.Plaintiffs in these cases allege that these websites are discriminatory because they are not accessible to people with vision, hearing, or other disabilities. Most of these lawsuits have been filed in federal court (primarily in New York, Florida, and California), and many are styled 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 (there are no monetary damages available in Title III cases). There are also state and local statutory claims being asserted in certain jurisdictions, such as New York, claiming that certain websites violate local human rights laws that guarantee equal access for people with disabilities, and California, where several plaintiffs also allege that a website violates the State’s Unruh Civil Rights Act.

Access Board Launches YouTube Channel

The Access Board has launched its own channel on YouTube to further share and disseminate information. It features a message from Executive Director David M. Capozzi on the Board's mission and the services it provides to the public. Animations on accessibility that the Board has developed as part of its online guide to the ADA and ABA Accessibility Standards are also available on the channel.

"The Board's new platform on YouTube provides another means of engaging our audience and sharing information," notes Capozzi. "We look forward to uploading additional content in the future."

Visitors can subscribe to receive updates on new material that is added to the channel.

Op-Ed: Businesses need to ensure they are compliant with the Americans with Disabilities Act

Houston Business Journal

Businesses with an online presence could soon become targets of a burgeoning trend of disability discrimination claims under the Americans with Disabilities Act. Title III of the ADA prohibits discrimination on the basis of one’s disability in the full and equal enjoyment of the goods, services and facilities of any place of public accommodation. Most businesses must ensure their establishments do not have accessibility barriers preventing disabled individuals from having equal access to the businesses’ offerings. 

In the last decade, courts across the country have seen an explosion of suits filed by disabled individuals and disability advocates seeking architectural and design changes to physical, brick and mortar locations. In some cases, they can be filed without the plaintiff ever stepping foot onto the premises. In so-called “drive-by” suits, plaintiffs literally drive by businesses inspecting their parking lots, handicap signage and accessibility ramps for ADA violations. Although damages are not recoverable under Title III, places of public accommodation can be required to pay attorney’s fees, court costs and incur the expense of remedying any ADA violations.

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