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ADA in the news
Federal Judge Dismisses Two Braille Gift Card Cases in First Decisions to Tackle Novel Issue
In handing down the first decisions of their kind, a federal district court in New York rejected two plaintiffs’ claims that retailers, restaurants, and other places of public accommodation were required to offer Braille gift cards to visually impaired customers. Although the court gave the plaintiffs leave to amend their complaints, the reasoning of the decisions soundly rejected the theories advanced by a group of plaintiffs and their lawyers in 249 nearly identical cases filed in the fall of 2019.
In both cases before the court—one against a defendant department store and the other against a defendant clothing retailer—Judge Gregory H. Woods of the Southern District of New York held that the plaintiffs lacked standing to sue for injunctive relief because they failed to establish a plausible intent to return to the defendants’ stores. The court held that mere conclusory allegations that the plaintiffs would return were not sufficient to support standing under the Constitution.
The court also denied the plaintiffs’ claims on the merits. First, the court held that gift cards are a “good” and that, as a result, a public accommodation need not alter its inventory to sell a good—the Braille gift card—designed specifically for persons with disabilities. Second, the court held that the defendant businesses could not be found to have breached their obligations under the Americans with Disabilities Act (ADA) to provide “auxiliary aids and services” because the plaintiffs alleged only that they had asked if the businesses sold Braille gift cards—and that was not enough. The plaintiffs had not asked for assistance using non-Braille gift cards or any other “aids or services.” As such, they could not maintain a claim for failure to provide “auxiliary aids or services.” Finally, the court rejected the plaintiffs’ claim that the gift cards themselves constituted “places of public accommodation” that must be made accessible.
While these decisions will be very welcome in the business community, it still remains to be seen whether plaintiffs’ amended complaints will also be abandoned and what will happen with the other 247 cases pending before multiple judges in the Southern and Eastern Districts of New York.
In the meantime, businesses may want to be on alert that these plaintiffs or other individuals with visual impairments may yet approach the same or new businesses seeking Braille gift cards followed by requests for other auxiliary aids to use in conjunction with the non-Braille gift cards. While a business may not need to provide a Braille gift card, the ADA still requires that it provide “auxiliary aids and services” to help a person with a disability use the business’s goods and services, which would include assistance with using a non-Braille gift card.
ADA didn't require employer to excuse name-calling, 1st Cir. says
Dive Brief:
- A military veteran with post-traumatic stress disorder (PTSD) who was fired after lashing out at her colleagues was unable to prevail on her Americans with Disabilities Act (ADA) claim (Trahan v. Wayfair Maine, LLC, No. 19-1961 (1st Cir. April 21, 2020)).
- Kirstie Trahan had trouble adjusting to the close quarters at her call-center job and experienced PTSD flashbacks after confrontations with her co-workers. She told managers she was sick of the "clique" and referred to her co-workers with an obscenity. An HR manager later investigated and determined that Trahan, by her own description of events, had violated Wayfair's conduct rules requiring that everyone be treated "in a professional manner." Trahan disclosed her disability but Wayfair fired her and she sued. A federal district court granted summary judgment to the employer.
- On appeal, the 1st U.S. Circuit Court of Appeals said that Trahan's comments and other behaviors — including rolling her eyes, throwing her headset and slamming down her phone — "were undisputed and plainly warranted Wayfair's determination that Trahan had acted unprofessionally." This was "fireable misconduct" and Trahan was unable to show that it was pretext for discrimination, the 1st Circuit said, affirming the lower court's ruling. Additionally, Trahan "made ... proposals that she seeks to classify as accommodation requests after committing the fireable misconduct that prompted her discharge," the court said; "Where, as here, an accommodation request follows fireable misconduct, it ordinarily should not be viewed as an accommodation proposal at all."
Dive Insight:
The ADA generally does not require employers to overlook clear instances of misconduct or performance problems, even if these issues are caused by, or related to, a condition that is protected by the ADA. Still, accommodations may be necessary.
In one recent case, a district court upheld the termination of an employee who proclaimed that he hated "working with women." The employee was a veteran who had received treatment for depression, anxiety, intermittent explosive disorder, bipolar disorder, alcohol addiction, paranoid personality disorder and impulse control disorder. The district court cited the reasoning of the 11th Circuit, which "has suggested in unpublished opinions that misconduct related to a disability is not itself a disability." Later, however, an appeals court revived the case, directing the lower court to revisit the plaintiff's claim that he had requested a reasonable accommodation before the outburst.
The 5th Circuit recently held that an employee with PTSD was unqualified for his job as a cable splicer following multiple workplace safety incidents. In another case, the 5th Circuit determined that a police officer with PTSD failed to meet the essential attendance requirements of his job.
Importantly, however, employers must avoid assumptions about what an employee with a disability may or may not be able to do, and to work with employees to find suitable accommodations whenever possible, experts say. And because the ADA doesn't require any magic words for accommodation requests, HR can train managers to identify such requests and escalate them as necessary.
Reopening the Economy in the Midst of COVID-19: What Happens If an Employee Refuses to Return to Work?
With initial rumblings about “reopening the economy,” employers are understandably concerned about what exactly that might look like. Frankly, everyone—including the U.S. workforce—is concerned. For that reason, one of the biggest challenges confronting employers is the inevitable refusal of one or more employees to return to work when shelter-in-place orders are lifted or eased.
Is an employee allowed to refuse to work? Probably not (with certain exceptions, of course), but there may be federal, state, or local leave requirements in play. Thus, an employee’s refusal to return to work under these circumstances can lead to a lot of consideration and analysis for his/her employer, both in the short- and long-term. This post will discuss some exceptions to the “probably not,” and address a few ways employers can manage the business disruption and associated legal risks when an employee refuses to come back.
Warming Up To Employee Temperature Checks: Employer Guidance From The EEOC And NYC
To allay employer concerns about permissible actions employers may take, the Equal Employment Opportunity Commission (EEOC) recently updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance (Guidance) to specifically address the COVID-19 pandemic. Included in the Guidance is the EEOC’s position on whether employers may take employee temperatures. According to the EEOC, employers who are covered by the Americans with Disabilities Act (ADA) are allowed to take their employees’ temperatures to determine whether they have a fever. The Guidance also notes that, if an employee does have a fever, the employer may send the employee home without running afoul of the ADA.
While this was welcome news, employers in New York City were understandably concerned that taking employees’ temperatures might still be prohibited under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), which offer broader protections than the ADA. However, the New York City Commission on Human Rights (NYCCHR) recently adopted the EEOC’s Guidance and noted that “[i]n general, compliance with the EEOC guidance will satisfy employers’ obligations with respect to disability protections under the New York City Human Rights Law as they relate to COVID-19.” Although the NYCCHR did not address whether compliance with the Guidance will satisfy employers’ obligations under the NYSHRL, because the NYCHRL offers broader protections than the state law, employers who follow the Guidance can be satisfied they are complying with both state and city law.
A final note of caution: as with all medical information, the fact that an employee has a fever is subject to the ADA’s, NYSHRL’s, and NYCHRL’s confidentiality requirements for medical records and such information must be maintained on separate forms and in separate medical files. Moreover, best practices may include not retaining data concerning temperatures. Finally, employers must provide appropriate training and safety practices prior to requiring any employee to take a colleague’s temperature in the workplace.
What Are Your Rights at Work?
You have a right to reasonable accommodations
If a worker is disabled or experiencing a physical change like an injury or pregnancy, sometimes modifications are required for them to perform their job. These are legally known as "reasonable accommodations,"which include accessible parking, special software, reassignment and alternative ways of communication.
Under the American With Disabilities Act, qualified workers with disabilities — meaning workers who can perform the essential duties of a position with or without a reasonable accommodation — have the right to assistance or adjustments in the workplace that will allow them to do their job.
According to the ADA National Network, employers are allowed to deny certain accommodations on that basis that they “create an undue hardship or a direct threat.”
Access to workplace accommodations can be trickier for people who are pregnant. While many employers happily meet the needs of pregnant person at their request, that's not always the case.
“Employers are not required to make even simple accommodations for pregnant workers.” said Chancey. “For instance, if an employer has a policy that requires all cashiers to stand, that employer likely does not have to allow a pregnant worker to use a stool, even if ordered by a doctor.”
A pregnant person’s best hope in this scenario would be if the employer accommodated a temporarily disabled person in another instance.
“That is, if a cashier broke their foot and the employer allowed use of a stool during recovery, that employer would have to offer the same accommodation to a pregnant cashier.” said Chancey. “But if the employer would require someone with a broken foot to take leave, the pregnant worker could be forced to take leave.”
Is working from home a reasonable accommodation?
As social distancing requires many of us to work from home, the benefits of remote work for disabled people has become a widely discussed topic. But is it considered a reasonable accommodation under the law?
According to the ADA, the answer is no. And in recent years, courts have also found these requests unreasonable.
While it’s hard to find a silver lining in this current crisis, it could be the catalyst that drives businesses and the government to recognize the importance of remote work in disabled people's lives.