Settlement Agreement: Grist Mill Market, LLC
According to the EEOC's lawsuit, Joel Sibert applied online in July 2017 for several jobs at Safeway Store #1551 in Seattle's Capitol Hill neighborhood and was selected for an interview based on his qualifications and experience working similar jobs. However, once Sibert explained that he is deaf and would need an interpreter for the interview, the in-store hiring recruiter told him she did not know anything about providing an interpreter and then never got back to him about the interview. Instead, Safeway hired several hearing individuals to fill the vacant positions, the EEOC said.
Rejecting a qualified applicant because of disability violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Western District of Washington (EEOC v. Safeway, Inc., Case No. 2:18-cv-01352-RSL) after an investigation by EEOC Investigator Isabel Jeremiah and after first attempting to reach a pre-litigation settlement through its conciliation process.
The three-year consent decree settling the lawsuit provides Sibert with $75,000 in damages for emotional distress and back pay, and calls for important changes to Safeway's hiring policies and practices. Safeway has agreed to revise its career website and application to make it easier for applicants to request accommodations; include contact information in its ADA policy; conduct ADA and accommodation training; distribute its modified ADA/accommodation policy to all employees annually; and ensure that recruiters understand Safeway's obligations under the ADA.
Safeway has settled a lawsuit brought on behalf of a deaf Seattle man over how the grocer hires and interviews disabled people. The U.S. Equal Employment Opportunity Commission sued Safeway on behalf of Joel Sibert, who in 2017 applied for jobs at the East John Street grocery store in the Capitol Hill neighborhood.
A hiring manager for the store contacted Sibert for an interview, and he asked for an interpreter to be present. That's when the hiring process stalled. Sibert never got the job, and Safeway hired non-deaf people for the job he had applied for, according to the EEOC.
"[W]hen I requested an interpreter during my interview and placed multiple calls to the store over the following week, I was placed on hold or told no one was available. I felt so disregarded. I'm glad Safeway is taking steps to make their workplace more inclusive," Sibert said in a statement.
The EEOC sued under the Americans with Disabilities Act (ADA). Safeway will pay Sibert $75,000, and will make changes to its hiring website to better accommodate the disabled. Also, Safeway employees, including recruiters, will get ADA accommodation training. Safeway will be under a three-year consent decree with the EEOC to ensure the policy changes are completed.
If faced with a disabled employee claiming a substantial limitation in their ability to work, examine the request carefully.
Telling your employee that you are firing them because of their medical issue will not end well for you.
The painful condition can limit a person’s productivity, force them to take time off, or even cause them to leave a job.
Finding — and keeping — a job that works within the limitations imposed by rheumatoid arthritis can be a challenge for many people who live with the painful disease.
One recent study reported that nearly one-third of people with rheumatoid arthritis (RA) had to quit working within five years of their diagnosis.
In this study, nearly half of the patients with RA held paying jobs at the onset. At the end of five years, 60 percent were still working while 29 percent had quit due to their RA symptoms. Another 9 percent had left work for other reasons.
The researchers noted that people with RA holding manual jobs were at the most risk for RA-related work disability.
This isn’t the first study that has come to these conclusions.
As 'Serial Plaintiffs' Target Art Gallery Websites for Disability Act Violations, Some Dealers Are Settling—or Scrambling to Get Up to Code
More than 100 lawsuits have been filed against New York City galleries in recent times.
Several New York City art galleries have paid to settle lawsuits brought against them for allegedly violating the 1990 Americans With Disabilities Act because their websites were not fully accessible to hearing or visually impaired persons.
The galleries that settled the suits, including Howard Rehs, Mark Borghi Fine Art, Questroyal Fine Art. and around a half-dozen others, are bound by non-disclosure agreements, but artnet News has learned that the cost averaged about $15,000 per settlement and they’ve agreed to update their websites’ accessibility. (The cost of continuing litigation and proceeding to trial is estimated at upwards of $100,000, experts say.)
This post is the first in a series on web accessibility.
Remember the bumper stickers that read, If You Can Read This, You’re Too Close? Yeah, danger ahead. Well, as America races down the cyber-highway, we should be on the lookout for a pile-up, because despite warning signs (as in a blizzard of web-accessibility lawsuits, up almost 200% last year from 2017) everywhere, people with disabilities just aren’t going to be able to move past the many obstacles heedless developers and designers are putting in their way.
This is not about bandwidth, or pipelines, or net neutrality, or even reaching rural America. It’s not even about privacy. Those are all incredibly important. But they all mean nothing to those of us who find big obstacles to fully accessing many web sites and functions.
Yes, the web frustrates everyone – no one escapes unscathed – but for people with disabilities trying to navigate the internet to perform anything from essential life functions to elective pursuits, these frustrations meaningfully and negatively impact lives.
For someone using a screen-reading or text-to-speech program, it can be as simple as this: a link to specific content, instead of having a tag or label that identifies where it points to, gets read as the word “link.” Or when trying to fill out a form of any type and the screen-reading program announces that there is a box to type in but finds no description of what to type – your name? Your address? Birth date? Now imagine this kind of experience spread across millions of webpages, pages that are crucial for everything from managing money and paying bills to making travel plans to reading textbooks and applying for a job.
Webpages with flaws like these are the equivalent of many buildings built before the 1990 passage of the Americans with Disabilities Act. Then architecture reflected the perspective of a society that placed no value on the inclusion of the disabled. As the web has evolved, it too has often failed to live up to the promise of the ADA. Even so, advocates with the right know-how or just the right drive have worked hard to guide developers and other professionals on how to plan for and create accessible webpages. Just as it’s more expensive and difficult to retrofit a physical structure for accessibility than it is to build one that takes access as a starting point from the commencement of planning, the same is true when designing for the web.
Federal regulators say a Louisiana company that operates a fleet of off-shore work boats in the Gulf of Mexico discriminated against and fired employee due to perceived disability.
The U.S. Equal Employment Opportunity Commission (EEOC) filed a disability lawsuit against Gulf Logistics Operating Inc. based in Larose, Louisiana, and the company has agreed to pay $25,000 and provide other significant relief to settle the suit.
The appellate panel was in agreement that changes to federal law meant Rehabilitation Act claims of discrimination required applying the Americans With Disability Act standards, while splitting on how to interpret those standards.
Buff employers, beware!
A jury recently awarded $500 grand to a restaurant server in Las Vegas for intentional infliction of emotional distress. The server claimed that a sign calling him "Fat Andy" was posted at his wait station and was left there for several months, even though he'd made repeated requests to management that it be taken down. (The sign was supposedly in a plexiglass case, so the plaintiff could not remove it himself.)
According to the lawsuit, the sign was not removed until the restaurant closed.
A federal district judge in Nevada had granted summary judgment to the employer, the Bellagio, on the plaintiff's claims, which were originally for national origin discrimination and intentional infliction. But the U.S. Court of Appeals for the Ninth Circuit determined that the intentional infliction claim should go to trial.
And the rest is history.
In my opinion, the lower court had it right. Fat-shaming is bad, but I don't think the particular behavior alleged in this lawsuit is nearly bad enough to amount to "intentional infliction of emotional distress." The legal claim requires behavior (1) that is "extreme and outrageous," (2) that is "intended to cause severe emotional distress," (or engaged in with "reckless disregard" for whether it would cause severe emotional distress) and (3) that does in fact cause severe emotional distress. The plaintiff has the burden of proof on all three elements.
The "extreme and outrageous" requirement is a stringent one. Rude or insensitive behavior doesn't cut it. Instead, the behavior must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."
Even assuming the "Fat Andy" sign was rude and hurtful, I don't see how it meets this very difficult legal standard.
And I have a problem with the second element, too. Did the employer (or co-workers) "intend" to cause the plaintiff to suffer severe emotional distress? Did they think severe emotional distress was likely to result and just didn't care? Or, on the other hand, was it simply a case of workplace teasing that went too far, coupled with employer negligence? If the latter, then there's no "intent."
That said, employers should be careful if they see that co-workers' teasing about weight (or other sensitive topics) may be unwelcome to the target of the jokes. Employers should never ignore such behavior, much less join in the "fun."
Another thing to keep in mind is that -- depending on how overweight the employee is, and the cause of the weight problem -- this could be considered unlawful harassment based on a disability, in violation of the Americans with Disabilities Act or state disability-rights laws. A number of federal courts have said that obesity is not usually a "disability" within the meaning of the ADA. However, if the obesity is so severe that it substantially limits an employee's major life activities, or if it is caused by some other medical condition (or medications that the employee is taking to treat or relieve a medical condition), then the target of the teasing could be protected.
Employers must catch on: mental illness is prevalent in our workplaces.
According to the National Alliance on Mental Illness (NAMI), approximately 1 in 5 adults —43.8 million, or 18.5%—experiences mental illness in a given year, and of those adults, about 1 in 25 adults in the U.S.—9.8 million, or 4.0%—experiences a serious mental illness in a given year that substantially interferes with or limits one or more major life activities.
Remember that the Americans with Disabilities Act (ADA) prohibits employers from taking an adverse action (e.g., demotion, termination, etc.) against employees with physical and mental health impairments as long as they can perform the essential functions of the job with or without a reasonable accommodation. (This mandate is negated only if an accommodation would cause an undue burden to the employer.)
In fact, with mental health disability claims steadily increasing, the Equal Employment Opportunity Commission (EEOC) has published two new guidelines offering additional explanations and helpful examples— Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights and The Mental Health Provider’s Role in a Client’s Request for Reasonable Accommodation at Work.
Employers who ignore the rise in mental health disabilities tend to learn a lesson the hard way.
I wrote here about the stigmatization of mental illnesses. I told you that one recent study states that nearly 85% of people say they’re uncomfortable discussing mental illness at work, which can cause problems for your workplace.
That same study found that 53% said that people are not generally sympathetic toward those with mental illness.
This is a problem. An expensive one for employers. A recent case caught my eye that illustrates this point perfectly.
Employer Refuses to Provide Additional Breaks To Employee with Anxiety, PTSD
In Schirnhofer v. Premier Comp Solutions, 2:16-CV-00462, Ms. Schirnhofer, a billing assistant at Premier for several years, had good performance reviews…and mental health issues. During her employment, her anxiety disorder worsened when her grandchild died and a close co-worker left the company.
After Ms. Schirnhofer’s personality conflicts with co-workers increased, Premier’s president and her co-workers started referring to her as “Sybil” (referencing a character in the eponymous movie who suffered from mental health issues). HR noted that she should seek “medical attention,” and, eventually, Ms. Schirnhofer requested two additional 10-minute breaks as a reasonable accommodation.
Not likely. Doesn’t cost anything, and it should be brief enough so as not to derail the daily schedule of the workplace.
The employer denied her request despite her physician’s recommendation that she be allowed such breaks to accommodate her anxiety and PTSD and despite HR’s recommendation to provide the accommodation.
While the jury denied other claims raised by Ms. Schirnhofer, it found that the employer had discriminated against her because of her mental health disability in violation of the ADA.
The jury awarded Schirnhofer $285,000 in damages: $35,000 in back pay, and $250,000 in noneconomic damages.
Let’s take that in for a minute. For most businesses, this is a catastrophic sum of money, and we haven’t even considered legal fees yet.
“Regarded As” Having a Disability
Interestingly, it wasn’t the interpersonal conflicts that constituted an ADA violation; rather, employees labeling Ms. Schirnhofer “Sybil” and HR’s recognition that she needed to seek medical attention swayed the jury.
Premier clearly regarded Ms. Schirnhofer as having a disability—employees and management called her Sybil—and she provided medical documentation about her need for an inexpensive (and likely free) reasonable accommodation.
Why fall on your sword instead of providing such an easy, inexpensive fix? I don’t get it.
Mental health conditions that may qualify for a reasonable accommodation are those that substantially limit one or more major life activities, including brain/neurological functions and activities like communicating, thinking, concentrating, regulating thoughts or emotions, and interacting with others. They can include:
- Generalized anxiety disorder (though less so if caused by stress at work)
- Bipolar disorder
- Post-traumatic stress disorder
- Obsessive-compulsive disorder
The EEOC notes that an employee may qualify for a reasonable accommodation if (s)he has or had a substantially limiting impairment, and, as I told you here, the ADA’s protection includes workplace discrimination based on perceived impairments.
That’s where Premier really erred here.
The Role of Mental Health Providers In The Interactive Process Is Key
It’s critical for mental health providers to understand how important their role can be in assisting with the interactive process.
To comply with the ADA, an employer must understand how the disability affects the employee’s ability to do the job. With disabilities that can be “invisible,” like mental health conditions, that can be tough to do without guidance from the employee’s mental health provider.
An employer can request information, including regarding the functional limitations caused by the disability, from an employee’s medical provider so as to understand the employee’s difficulties, how an accommodation could alleviate an employee’s limitations, and which accommodations may be appropriate.
Decreasing the stigma and providing accommodations generally benefits the workplace. Indeed, the director of state policy and advocacy at NAMI once stated, “Particularly because of the struggle they’ve been through, they’re often extraordinarily dedicated to their company and their work.”
There are steps employers can take so as not to repeat Premier’s mistakes while destigmatizing mental health conditions:
- Training. Training your managers, train your C-suite to recognize requests for accommodations for mental health disorders and that providing them complies with federal law. Most accommodations for mental health disorders are inexpensive, if not free.
- Determine whether or not an employee requires an accommodation. Actually talk to the employee about this. We call this “engaging in an interactive discussion.” Should you consult a lawyer for this discussion? Sure, absolutely, never hurts.
- Obtain from your employee or his or her doctor an understanding of how the disability affects the employee’s ability to do the job.
- Provide the accommodation. JAN provides an extensive list of accommodations for employees who suffer with mental health disorders including flexible scheduling, additional time to learn new tasks, time off for counseling, frequent breaks, and backup coverage for when the employee needs breaks, and telework, just to name a few.
- Document substantially a determination not to provide an accommodation because of an undue burden.
Accommodating mental health disorders is the law, and such disorders are pervasive in workplaces. Let’s STOP the stigmatization, and educate our workplaces. It’s a win-win for employers and employees alike.
The National Herald (press release) (blog)
Theodore Demosthenes Karantsalis, a disabled Greek librarian has filed an ADA (Americans with Disabilities Act) lawsuit against the Board of Trustees of Miami Dade College (MDC). Karantsalis works at the college as a librarian but suffers from many health issues including multiple sclerosis (MS), psoriatic arthritis, and bipolar disorder. He is a qualified individual under the ADA as the documents from the United States District Court. Southern District of Florida, Miami Division, indicate, and is suing for discrimination due to the “poor condition and inaccessibility of the roads, sidewalks, and other common areas” at the college.
A former competitive triathlete and former federal law enforcement agent Karantsalis was awarded the Bronze Medal from the Department of Homeland Security in 2003 for his efforts keeping the public safe following the September 11th attacks. He has worked at MDC since 2004, but his health issues make it difficult for him to get around and as the lawsuit states, he is “denied full, safe and equal access due to violations that continue to exist” at the college.
Karantsalis has excellent reviews for his work at MDC and is highly motivated. Before filing the lawsuit, he made requests that the ADA violations be addressed by the college, but there was no action taken, according to the court documents.
Also a prolific writer, Karantsalis has published over 1,000 projects and freelances for various media outlets, including the Miami Herald. He told The National Herald that his family is from Kiriaki, Levadia in Greece. When asked if he had a comment about the lawsuit, he told TNH, “I decline comment pending litigation.”
According to the U.S. Department of Labor website, “the Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government programs and services.”