Settlement Agreement: Carl R. Beiber, Inc. D/B/A/ Bieber Tourways
New York Federal Courts Allow ADA Website Accessibility Claims to Continue
JD Supra
Two federal courts in New York recently joined the growing list of those finding that Title III of the Americans with Disabilities Act (ADA) does apply to websites. Both courts denied motions to dismiss by businesses that had argued that Title III of the ADA only applied to physical locations of public accommodation. These decisions came shortly after a federal court in Florida—on which we previously reported in June—concluded that the website of grocery store Winn-Dixie was required to comply with the ADA because the goods and services offered on its website had a significant connection to those offered at its physical locations.
The two recent New York cases, which involved retail store Blick Art Materials and burger chain Five Guys, took the Winn-Dixie decision a step further. The courts held that websites must be ADA compliant regardless of whether the online content has a nexus to a physical location.
The court in the Blick case expressly rejected the defense that the defendants could wait for the Department of Justice (DOJ) to promulgate regulations on website compliance standards. Since 2010, the DOJ has issued notices of its intent to promulgate regulations adopting a standard for website compliance under Titles II and III of the ADA. These efforts, however, have consistently been delayed, and the DOJ recently placed the website regulations on its list of "inactive" rulemaking.
The court in the Five Guys case held that Title III entities could rely on the Web Content Accessibility Guidelines 2.0 (WCAG) for guidance. This court also rejected the defense that the restaurant was in the process of improving its website accessibility standards. The court focused its inquiry only on whether, at that moment, the website was ADA accessible—and concluded it was not.
These two cases provide several important takeaways. First, in many jurisdictions, waiting until the DOJ promulgates regulations on Title III website accessibility provides no safe harbor for businesses. This delay, in fact, might be the very reason that courts are showing an increasing willingness to conclude that websites must comply with Title III. Second, compliance with the WCAG 2.0 standards remains the best recommended practice. And lastly, although courts have been split on whether websites must be ADA-compliant, businesses that have a national online presence should be mindful of complying with digital accessibility best practices to minimize exposure to lawsuits like the ones discussed in this alert.
EEOC Sues AT&T Pacific Bell for Disability Discrimination
The National Law Review
AT&T Pacific Bell, a California telecommunications company, violated federal law when it denied an employee's request for a sign language interpreter, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.
According to the EEOC's lawsuit, AT&T Pacific Bell denied a deaf employee at its Fresno, Calif. location an accommodation that would allow him to interact meaningfully in the course of his work.
Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of 2008. EEOC filed suit in U.S. District Court for the Eastern District of California (EEOC v. AT&T Pacific Bell Telephone Company, Case No. 1:17-cv-01059-LJO-EPG) after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC's suit seeks monetary damages for the employee, as well as injunctive relief intended to prevent and correct discrimination.
"The law requires that reasonable accommodations for employees with disabilities be effective," said Anna Park, regional attorney for EEOC's Los Angeles District, whose jurisdiction includes California's Central Valley. "A reasonable accommodation should endeavor to provide employees with a disability equal access to the benefits and privileges of employment."
"Employers are encouraged to engage in a meaningful interactive process to identify reasonable accommodations for employees. Without this discussion, employers may find themselves in violation of federal law," added Melissa Barrios, director for EEOC's Fresno Local Office.
According to the company's website, www.att.com, AT&T was acquired by Southwestern Bell Corporation in 2005. Currently the company is one of the largest telecommunications, wireless, and pay-TV providers.
EEOC Sues Dependable Health Services For Disability Discrimination
Dependable Health Services, Inc., a health care staffing agency, violated federal law when it fired an employee with sickle-cell anemia instead of reinstating her or reassigning her to a position in another department where she had previously worked, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.
According to the suit, Sheena Berry started working at Walter Reed National Military Medical Center in Bethesda, Md., as a phlebotomist in March 2016. In September 2016, when Dependable Health Services took over a medical services contract at Walter Reed, Berry was pregnant and experienced complications related to the sickle-cell anemia, including restrictions on her ability to lift and bend. Berry told Dependable Health Services about her pregnancy and disability and requested a reasonable accommodation of no longer working mobile blood drives. Dependable Health Services initially refused to accommodate Berry, the EEOC said.
An emerging legal threat to dentists
Dental Economics
Recently, I learned that a Dallas-area dentist (whose privacy is being withheld for obvious reasons) was threatened with a federal lawsuit by a military veteran. The veteran charged that the dentist’s website was inaccessible to people with disabilities and in violation of the Americans with Disabilities Act (ADA). This has been an expensive endeavor for the dentist; it’s costing him thousands to settle this legal battle and make it go away. The kicker is that he still must make his website accessible. Plus, if the state dental board learns of this pending federal lawsuit, it could compound the repercussions.
A little background: Title III of the ADA provides for people with disabilities to have equal access to buildings, public restrooms, restaurants, and more. Recently, the Department of Justice demonstrated and a federal court has ruled that the law applies directly to the Internet (specifically your dental practice’s website).1 For example, those who are visually impaired have difficulty seeing website images, so the website should include appropriate tags and data that “speaks” what those images look like.
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While the ADA does not provide for monetary damages to private parties bringing ADA lawsuits, it allows for “reasonable” attorney fees, which means big money is on the line. The major retailer Target was sued by the National Federation of the Blind and had to settle for millions because of ADA website compliance violations.2 The court substantiated the award by declaring that the “plaintiffs have broken new ground in an important area of law.”2
More recently, the supermarket chain Winn-Dixie was found liable in federal court under Title III of the ADA.3 The trend suggests that dentists and other brick-and-mortar businesses should focus on accessibility efforts now.
EEOC Sues Dependable Health Services For Disability Discrimination
MilTech
Dependable Health Services, Inc., a health care staffing agency, violated federal law when it fired an employee with sickle-cell anemia instead of reinstating her or reassigning her to a position in another department where she had previously worked, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.
On Drugs and at Work: Keeping Your Work Force Safe and ADA-Compliant in the Opioid Epidemic
JD Supra
According to research conducted by the Mayo Clinic, seventy percent of Americans are on at least one prescription drug, and more than half receive at least two prescriptions. Twenty percent of U.S. patients are on five or more prescription medications. This same study found that the most common prescription drug is cholesterol-lowering medication followed by anti-depressants. The third most common are opioids. What does that mean in terms of how many Americans are using prescription opioid painkillers? A Consumer Reports survey found that, of the Americans who use prescription drugs, about one in three take prescription opioids. These statistics necessarily mean that a significant portion of employees are reporting to work under the influence of prescription opioids that carry worrisome side effects of drowsiness, dizziness and impaired cognitive ability. Notably, the American College of Occupational and Environmental Medicine (ACOEM) updated its opioid practice guidelines in 2014 to advise against the use of opioids in safety-sensitive jobs.
Drug testing company dismissed from discrimination suit
Sioux Falls Argus Leader
A drug testing company cannot be held responsible for a business’s decision not to hire a woman based on a positive drug test, a federal judge has ruled.
M.G. Oil refused to hire Kim Mullaney at Happy Jacks after she tested positive for hydrocodone. The Equal Employment Opportunity Commission sued M.G. Oil, saying the decision not to hire Mullaney violated the Americans with Disabilities Act because Mullaney had a prescription for the drug to treat chronic neck and back pain.
Last year M.G. Oil filed a claim against TestPoint Paramedical, which had a contract to provide drug testing for M.G. Oil. According to its complaint, TestPoint was supposed to refer all positive drug tests of prospective M.G. Oil employees to a medical review officer who would then determine if the positive result was caused by a valid prescription. If the results weren’t caused by a prescription drug, TestPoint was supposed to notify M.G. Oil that there was a non-negative result.
In its complaint, M.G. Oil said TestPoint indicated that Mullaney had tested positive.
“There was no indication from TestPoint that the drug test had not been sent to the Medical Review Officer for verification,” the complaint said. “Based on the drug test results provided by TestPoint, M.G. Oil Company withdrew its conditional offer of employment to Kim Mullaney.”
Both TestPoint and the EEOC moved to have the complaint dismissed, arguing that M.G. Oil’s claims for indemnity and contribution were not permitted under Title I of the ADA. Judge Karen Schreier agreed, citing the similarities of the case with a similar U.S. Supreme Court ruling.
The EEOC has asked for a jury trial against M.G. Oil.
A Beginner's Guide to ADA Compliance for Websites
Search Engine Journal
The Department of Justice has made it clear that these legal requirements are on the horizon. Optimizing websites for accessibility and ADA compliance will serve to create better content that is usable by more people, which makes the internet a better place for all.
Some accessibility guidelines require extra technical work, but overall the guidelines align with web design best practices: make your content available in different forms for different devices and audiences, make your website logical and easy to use, and make your website technically sound
Disabled advocate pushes Peoria to be more wheelchair accessible
Peoria Journal Star