Claim that termination was due to ‘sex-plus’ status as single parent fails (CCH Netnews)
A hospital employee could not show that her termination for refusing to cover a weekend shift and failing to get coverage was pretext for discrimination based on her status as a single mother, discrimination due to her temporary foot injury (which the court found was not a “disability”), or retaliation for having complained to HR about being required to work the shift when she had no childcare. Granting summary judgment for the hospital, the federal court in Connecticut found her ADA, Title VII, and state law claims undermined by the fact that a coworker, who was not in the protected classes and who refused a shift on the same weekend for different reasons, was also fired on the same day, by the same people, for the same reason. The employee’s failure-to-accommodate claim also failed. (Preston v Bristol Hospital, DConn, March 30, 2015, Chatigny, R.)
Shy bladder disability might require accommodation under state law (CCH Netnews)
Evidence by a longshoreman that “shy bladder” syndrome was both medically diagnosable and had a significantly limiting effect on his ability to be considered for a Class B longshoreman position supported his failure-to-accommodate claim under state law, a federal district court in Washington ruled, denying his employer’s motion for summary judgment. The fact that his employer complied with the Department of Transportation’s “shy bladder” regimen was no help to its defense because there was no showing that the employer was bound by DOT regulations, that they were applicable to longshoremen, or that it could not provide any other type of accommodation. But the court found no evidence of a discriminatory motive to support his discrimination or retaliation claims. (Oberti v Pacific Maritime Assn, WDWash, March 27, 2015, Jones, R.)
Baldwin Supply Company to Pay $50,000 to Settle EEOC Disability Discrimination Lawsuit
A Minneapolis-based distributor will pay $50,000 under a consent decree which resolves a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announce.
Function--not treatments--decides disability
Business Management Daily
The ADA covers employees who have a condition that substantially impairs a major life function like walking, talking, working or breathing. Conditions associated with ordinary aging or which are minor or temporary don’t count.
Carefully consider whether an employee really qualifies as disabled before providing reasonable accommodations. Don’t focus solely on the number of treatments an injury or condition requires. Focus instead on whether the condition substantially impairs a life function.
Recent case: Attendance and arriving on time was essential for Lana’s work for the Methacton School District. She injured her knee and had to take time off for surgery and physical therapy. Over a two-year period, she had several operations and made a slow but steady recovery. She eventually walked with a slight limp, but confessed she eventually could do everything she had done before she was hurt, though perhaps a little slower.
When she wasn’t out on leave, she frequently arrived late for her 7 a.m. shift. She was eventually discharged after the school logged her in late at least 23 times during her final school year.
Lana sued, alleging she had been terminated because she was disabled. She claimed a cartilage tear in her left knee was a physical impairment that substantially limited her life activities, including walking, standing, bending and working.
But the court determined that Lana wasn’t disabled. It did note that she occasionally used a knee brace and had difficulty standing, walking and sitting for long periods of time without feeling discomfort. But in her own words, “At times I wear a brace still, but I can essentially do everything that I used to do before I was injured.” That admission helped convince the court she wasn’t permanently disabled. (Sampson v. Methacton School District, No. 11-4553, ED PA, 2015).
Ninth Circuit Holds That ADA Is Applicable Only to “Actual, Physical Place”
The National Law Review
The decision in Earll v. eBay finds that a website business not connected to any physical place is not a “place of public accommodation” for purposes of Title III of the ADA.
In a decision of significant importance to all businesses that engage in Internet commerce, in Earll v. eBay, the US Court of Appeals for the Ninth Circuit held that eBay.com, a website not connected to any physical place, is not a “place of public accommodation” subject to the accessibility requirements of Title III of the Americans with Disabilities Act (ADA). The decision is welcome news for web-based companies. An individual with a hearing impairment sued eBay Inc. and alleged that an eBay voice-based verification process prevented her from registering as a seller, in violation of the ADA. Although the Ninth Circuit’s decision is groundbreaking for Internet-only companies, it builds on prior cases that interpreted the ADA to apply only to “actual, physical place[s].” The same court reached a similar conclusion on the same day in Cullen v. Netflix, a case concerning closed-captioning for online video content.
Federal district courts in other circuits have decided the question differently, which may cause a split between circuits. Ultimately, this issue may be headed for Supreme Court review. In an example of a contrary view, last month, a District of Vermont federal judge held that the web-only business Scribd is subject to suit under Title III of the ADA because its digital library subscription services are alleged to not be accessible to people with vision impairments (National Federation of the Blind v. Scribd).
In related activity, the US Department of Justice (DOJ) is expected this summer to accelerate its role in making and enforcing rules regarding Internet accessibility with a notice of proposed rulemaking on the subject. The DOJ is widely expected to propose the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA, as the standard required under the ADA.
The ADA: A Far Cry From the ABCs
JD Supra
Qualified individuals, reasonable accommodations, undue hardship, fundamental alteration – these terms associated with the Americans with Disabilities Act (ADA) are a far cry from the simplicity of the ABCs, and cause much confusion for schools tasked with complying with the statute. But there can be no question that compliance with the ADA is the subject of increased interest to federal and state governmental agencies nationwide, and that more and more individuals are exercising their rights under the ADA, particularly when it comes to seeking reasonable accommodations.
EEOC clarification on workplace wellness programs advances
Lexology
The U.S. Equal Employment Opportunity Commission (EEOC) has announced it is starting the regulatory process to release its long-awaited rules on the interplay of the Americans with Disabilities Act (ADA) and the Affordable Care Act (ACA) as they affect wellness programs.
According to the EEOC’s March 20 announcement, the proposed rule would amend the regulations implementing the equal employment provisions of the Americans with Disabilities Act to address the interaction between Title I of the ADA, prohibiting employment discrimination, and financial incentives as part of wellness programs offered through group health plans.
The EEOC initiated the process by sending a Notice of Proposed Rulemaking (NPRM) to the Office of Management and Budget (OMB) for clearance. After OMB approves the NPRM, the proposed rule will be published in the Federal Register for a 60-day public notice and comment period. The NPRM cannot be made public prior to its submission for publication in the Federal Register.
NYU, AT&T invite design for disabilities with tech challenge
Telecompaper
New York University's Ability Lab and AT&T have launched the first Connect Ability tech innovation challenge, inviting developments that could be used to enhance the lives of people with physical, social, emotional, and cognitive disabilities.
Over the next three months, developers are invited to compete for more than USD 100,000 in prizes to design software, wearable and technology systems. The challenge will reach a head on 26 July, the anniversary of the Americans with Disabilities Act (ADA).
The Connect Ability Challenge will use an Exemplar model. Developers will have the opportunity throughout the competition to interface directly with four people with diverse disabilities who will share the challenges they face and help guide innovators to find solutions.
A panel of experts from the engineering, technology and disability community will judge the submissions and identify the winning solutions.
Disability And (Dis)Accessibility On College Campuses
Neon Tommy
For most college students, coming to campus for the first time is an exciting, memorable experience. It may even be overwhelming for some to see just how many new options are available to them at their new campus home: new places to eat, to live, to work and to socialize, and new people to hang out with.
However, for many students with disabilities, college campuses - and the college experience itself - can be overwhelming for exactly the opposite reason. Lack of options - for physical places to go, resources and advocates to help them on their journey and for ways to manage their academics alongside their disabilities - is a huge issue for many students across the United States, an issue that affects not only the quality of their college experiences, but their ability to graduate and achieve success after graduation, as well.
Anxiety disorder a covered ADA disability
Business Management Daily
Since the EEOC declared that “the ability to interact with others” is an essential life function, some employees and their attorneys have argued that a long list of psychiatric and psychological disorders are covered ADA disabilities.
If the diagnostic criteria for a condition includes difficulty getting along with others, then being diagnosed with the condition is proof enough of disability, goes the argument.
Now a federal appeals court has essentially agreed with that position, at least when it comes to one diagnosis: social anxiety disorder (SAD), a condition listed in the Diagnostic and Statistical Manual—the diagnostic “Bible” for mental-health professionals.
SAD is a psychiatric condition that “interferes significantly with the person’s … functioning, or social activities or relationships.”
SAD employees may be entitled to accommodations that limit their interaction with other persons in the workplace.
Recent case: Christina was hired by the North Carolina state court system as an office assistant. Her job consisted largely of filing and microfilming documents. It was a job that kept her in a back room with minimal social interaction.
Then she was promoted to deputy clerk, where she worked with about 30 colleagues. Some deputy clerks had to work the front desk, providing direct customer service. Christina was assigned to that group.
Soon, she experienced panic attacks and anxiety.
She told her supervisors that she had SAD and requested an accommodation to a spot away from the front desk. Christina took leave while waiting for word on the accommodation.
Then Christina was fired because she “wasn’t getting it,” despite no previous complaints about her work.
She sued, alleging failure to accommodate. The trial court tossed out Christina’s case, ruling that SAD wasn’t a disability.
However, the 4th Circuit Court of Appeals disagreed. It said the court system should have considered possible accommodations. (Jacobs v. N.C. Administrative Office of the Courts, No. 13-2212, 4th Cir., 2015)