You Can't Always Get What You Want: Employers Don't Have to Provide an Accommodation Requested by an Employee if There Are Other Reasonable Alternatives
The National Law Review
A recent Third Circuit case, Sessoms v. Trs. Of the Univ. of Pa., 2018 U.S. App. LEXIS 16611 (3rd Cir. June 20, 2018), serves as a reminder that while the Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to disabled employees, it does not obligate an employer to provide the accommodation requested by the employee. An employer may choose among reasonable accommodations as long as the chosen accommodation is effective
Sessoms, a University of Pennsylvania (“Penn”) employee, was out on an approved leave of absence relating to mental and physical disabilities. Prior to returning to work, she requested a part-time schedule (with eventual plans to return full time) and to be transferred to a different supervisor in a “lower-stress department/office.”
While Penn agreed to accommodate Sessoms part-time schedule request, it declined to transfer her to a different supervisor. Despite Penn’s efforts, Sessoms was unwilling to agree to any accommodation that included continuing to report to her current supervisor. As a result, Penn terminated her employment.
In affirming the District Court’s grant of summary judgment in favor of Penn, the Court found that Penn demonstrated that it made good faith efforts in attempting to accommodate Sessoms: her supervisors met with her, considered her accommodation requests, and offered several accommodations, including a part-time work schedule.
In its ruling, the Court noted that “[w]here an employee requests an accommodation in the form of a transfer, she must make a showing that this accommodation is possible, i.e., the existence of an equivalent-level, vacant position for which the employee could qualify. A reasonable accommodation does not entitle an employee to a supervisor ideally suited to their needs.” While Sessoms wanted to transfer to another department or supervisor, she failed to provide any evidence that vacant positions existed to which she could be transferred. (It is well settled that a reasonable accommodation does not include creating a new position for an employee if no vacant position exists for which the employee is qualified.)
The ADA requires an employer to provide a reasonable accommodation. It does not limit an employer to providing only an accommodation requested by an employee, or a more costly or burdensome accommodation, if there are other effective reasonable accommodations. That said, if providing an employee’s preferred accommodation does not create a burden or additional expense, that option should be seriously considered.
As noted by the Equal Employment Opportunity Commission in its Enforcement Guidance, if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.”
Employers should ensure that they have a well-documented interactive process. Penn’s ability to demonstrate its good-faith efforts in attempting to accommodate Sessoms was noted by the Court in its ruling.
Court rules against Dunkin Donuts over blind customer's access to website
Business Insurance
A federal appeals court overturned a lower court and ruled a blind plaintiff can pursue an Americans with Disabilities Act lawsuit against Dunkin Donuts L.L.C. for allegedly having an inaccessible website.
The case is part of a trend, with more courts ruling against companies over the issue of website accessibility, while the number of lawsuits alleging ADA violations related to website access grows dramatically.
The case decided Tuesday involved Dennis Haynes, who is blind and relies on screen reading software to use the internet, according to the 11th U.S. Circuit Court of Appeals in Atlanta in Dennis Haynes v. Dunkin’ Donuts L.L.C., a foreign limited liability company, DD IP Holder L.L.C., CashStar Inc.
Mr. Haynes sued Canton, Mass-based Dunkin Donuts in U.S. District Court in Fort Lauderdale, Florida, claiming the company violated Title III of the ADA by not maintaining a website compatible with screen reading software.
The District Court dismissed the case, which was overturned by a unanimous three-judge appeals court panel. It appears Dunkin’ Donuts’ website “is a service that facilitates the use of Dunkin Donuts’ shops, which are places of public accommodation,” the ruling states.
Under the ADA, “whatever goods and services Dunkin’ Donuts offers as a part of its place of public accommodation, it cannot discriminate against people on the basis of a disability, even if those goods and services are intangible,” the ruling says.
Mr. Haynes could not access services offered online by Dunkin’ Donuts’, including information about store locations and the ability to buy gift cards online.
“The failure to make those services accessible to the blind can be said to exclude, deny, or otherwise treat blind people ‘differently than other individuals because of the absence of auxiliary aids and services,’” said the ruling, in quoting the ADA and remanding the case for further proceedings.
Court Grants Judgment and Injunction in Favor of EEOC In Americans With Disabilities Act Lawsuit
JD Supra
A federal judge in the U.S. District Court for District of Kansas ruled on July 27, 2018, that UPS Freight violated federal law by having a policy, contained in its current union contract with the International Brotherhood of Teamsters, of paying disabled drivers only ninety percent of what nondisabled drivers earn when they temporarily move to non-driving jobs.
This voice-controlled robotic furniture assists disabled folks (Video)
Treehugger
Accessibility for differently abled individuals can be a huge issue when it comes to trying to get into older buildings that don't have a ramp, or trying to cook or garden.
Inspired by his best friend's struggles with muscular dystrophy while they were living together, industrial designer Nour Malaeb created Relay, a transforming piece of furniture that is somewhat of a cross between a multifunctional table, walker and a voice-controlled robotic personal assistant.
Employment Law This Week: ADA Special Edition
The National Law Review
This week’s episode of Employment Law This Week focuses on the Americans with Disabilities Act (ADA):
July 26, 2018, marked the 28th anniversary of the Americans with Disabilities Act (ADA), signed into law by President George H. W. Bush in 1990. The ADA was landmark legislation that changed the workplace radically for those with disabilities, and their colleagues, and created new obligations for businesses open to the public. Ted Kennedy, Jr., from Epstein Becker Green, has more:
“Since the ADA was passed, there have been many changes in the workplace. For many years, people with disabilities were not expected to go to work and earn a living. Now, all of a sudden, companies had an affirmative obligation to make a reasonable accommodation to people with disabilities who were able and willing to work.”
5 barriers Texas must remove for disabled people to live like everybody else
Dallas News (blog)
This summer marks the 28th anniversary of the Americans with Disabilities Act. The father of this civil rights law was a Texan named Justin Dart, who become disabled after contracting polio in the 1940s. He used a wheelchair and fought for social justice, earned higher education degrees and worked as a successful businessman.