Final Rule Implementing ADA Amendments Act of 2008 (titles II and III)
The ADA Amendments Act of 2008 (ADA Amendments Act) made a number of significant changes to the meaning and interpretation of the ADA definition of "disability" to ensure that definition would be broadly construed and applied without extensive analysis. On July 15, 2016, Attorney General Loretta Lynch signed a Final Rule incorporating the requirements of the ADA Amendments Act into the ADA title II and title III regulations. The Final Rule was published in the Federal Register on August 11, 2016, and takes effect 60 days from publication, on October 11, 2016.
DOJ's new ADA regulations silent on public employment
HR.BLR.com
New U.S. Department of Justice (DOJ) regulations implementing the Americans with Disabilities Act (ADA) are, as expected, silent on the law’s coverage of public employers. Clarification on that issue, according to several federal appellate courts, would have had implications for employers hoping to have lawsuits dismissed or seeking to limit available damages.
Xerox State Healthcare, LLC Will Pay $35,000 To Resolve EEOC Disability Discrimination Lawsuit
Xerox State Healthcare, LLC ("Xerox Healthcare"), a healthcare company that offers healthcare program administration services for programs such as long-term care and pharmacy benefits management, has agreed to pay $35,000 and provide substantial injunctive relief to settle a disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) today. According to the EEOC's lawsuit, the company failed to grant an employee with a disability a reasonable accommodation which would have allowed her to complete the company's required pre-employment drug screening.
In its complaint, EEOC alleges that Victoria Dozier, who is diagnosed with end stage renal disease and receives hemodialysis treatment as a result, received a written employment offer from Xerox Healthcare in September 2014. The employment offer was contingent upon successful completion of a pre-employment drug screening. Although Dozier was willing to undergo drug screening, she informed both the company and the lab representative at the drug testing facility that her disability prevented her from providing a urine sample. The complaint alleges Dozier also informed both Xerox Healthcare and the lab representative that her dialysis center would perform a different kind of drug test in place of the urine testing. Xerox Healthcare denied the request and Dozier was not hired.
The Americans with Disabilities Act of 1990 (the "ADA") requires employers to make reasonable accommodations to employees, as well as qualified applicants with disabilities. EEOC filed suit in the U.S. District Court for the Western District of North Carolina, Charlotte Division (Equal Employment Opportunity Commission v. Xerox State Healthcare, LLC, Civil Action No. 3:15-cv-00427) after first attempting to reach a pre-litigation settlement through the agency's conciliation process.
In addition to providing monetary relief to Dozier, the company agreed to a two-year consent decree requiring it to notify employees and applicants that they are entitled to reasonable accommodations in connection with drug screening, if necessary. The decree also requires the company to annually train certain recruiters and recruiting managers on the requirements of the ADA, specifically, that employers must provide reasonable accommodations to individuals covered by the ADA, including applicants.
"The ADA's protections apply to a company's applicants just as they do to existing employees," said Lynette A. Barnes, regional attorney for EEOC's Charlotte District Office. "When a company is aware that a qualified applicant needs a reasonable accommodation in order to complete an aspect of the hiring process, the company must grant that request unless it poses an undue hardship for the company."
Amtrak to Pay $112,000 to Settle EEOC Disability Discrimination Lawsuit
The Washington, D.C.-based National Passenger Railroad Corporation, better known as Amtrak, will pay $112,000 and provide other relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
According to EEOC's suit, Amtrak withdrew its job offer of machinist journeyman at its Seattle yard when it learned Shawn Moe had a history of three epileptic seizures over the course of his life. Amtrak cited safety concerns, despite Moe's record of safely working a similar job and despite his neurologist verifying to Amtrak that his epilepsy was successfully controlled on medication, that he had been seizure-free for years, and that he was able to safely perform the essential functions of the job without limitation while on medication.
"The fact that I have epilepsy has never prevented me from safely doing my job, not in the years I worked for another locomotive company before I applied to Amtrak, and not at the railroad machinist job I found after Amtrak took back its job offer," said Moe. "Amtrak's decision to withdraw its offer hit my family at a particularly vulnerable time because my wife and I just had our first baby. I thought, what if other employers react as Amtrak did and I can no longer practice my trade? How would I support my family?"
The Americans with Disabilities Act (ADA) prohibits an employer from discriminating against an employee because of his disability, and also requires an employer to assess a worker's actual ability to perform job functions where potential safety concerns are raised. EEOC filed suit in U.S. District Court for the Western District of Washington [Case No. 2:15-cv-01269] after first attempting to reach a pre-litigation settlement through its conciliation process.
The three-year consent decree settling the lawsuit provides $112,000 to Moe in lost wages and compensatory damages. The decree also requires Amtrak to train its staff on hiring obligations and assessing reasonable accommodations under the ADA. Amtrak will also implement and disseminate a modified ADA policy, and will post a notice for employees about the consent decree and employees' rights under the ADA.
EEOC Senior Trial Attorney May Che said, "Amtrak concluded that Mr. Moe presented a significant safety risk without assessing the actual likelihood of him having a seizure at all. In enacting the ADA, Congress stated that employers must rely on objective, factual evidence - not on subjective perceptions, irrational fears, and patronizing attitudes - about the nature or effect of a particular disability, or of disability generally."
EEOC Seattle Field Director Nancy Sienko added, "One out of every 26 people will develop epilepsy at some point in their lives. Given that epilepsy reportedly affects 2.2 million Americans and affects each person differently, it is critical that employers do not base job decisions on stereotypes, but instead carefully consider an employee's abilities."
According to publicly available information and its website, www.amtrak.com, Amtrak is a publicly funded service, operated and managed as a for-profit corporation with headquartered in Washington, D.C. In fiscal year 2015, Amtrak served over 30.8 million passengers and had $3.2 billion in revenue, while employing more than 20,000 people nationwide.
EEOC Sues Cushman & Wakefield for Disability Discrimination
Cushman & Wakefield refused to provide a reasonable accommodation to an employee with breast cancer and instead fired her because of her disability violating federal law, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.
EEOC charges that Toi Patterson worked for Cushman & Wakefield at its Columbia, Md., facility for nine years, first as an administrative assistant and after a promotion, as a senior administrator, when she requested intermittent leave for her breast cancer treatment pursuant to the Family Medical Leave Act (FMLA). When she returned from her first intermittent medical leave, Paterson's supervisor advised that they "needed to talk" and that she would need to know when Patterson was going to be late or absent. Based on the supervisor's reaction, Patterson feared that the supervisor would make it difficult to use intermittent leave as needed for medical treatment, so Patterson requested continuous leave under the FMLA, according to the suit.
Prior to the expiration of her FMLA leave, Patterson requested to return to work on a part-time schedule as a reasonable accommodation for her disability and advised she might needed additional unpaid leave after her surgery. EEOC charges that Cushman & Wakefield failed to allow Patterson to work part-time and refused to discuss or provide any other reasonable accommodation to allow her to remain employed. Cushman & Wakefield instead fired Patterson because of her disability, according to the lawsuit.
Such alleged conduct violates the Americans with Disabilities Act, as amended (ADA), which prohibits employers from discriminating on the basis of disability. The ADA requires employers to provide reasonable accommodations for employees with a disability unless the employer can show that doing so would be an undue hardship. EEOC filed its lawsuit in U.S. District Court for the District of Maryland, Northern Division (EEOC v. Cassidy Turley Commercial Real Estate Services, Inc., trading as, Cushman & Wakefield, Civil Action No. 1:16-cv-02788-JKB), after first attempting to reach a pre-litigation settlement through its conciliation process.
Spencer H. Lewis, Jr., district director of EEOC's Philadelphia District Office, said, "Firing a woman who is courageously fighting breast cancer is adding insult to injury and is unlawful disability discrimination."
EEOC Regional Attorney Debra M. Lawrence added, "It not only makes good business sense to make a schedule change or provide another reasonable accommodation to allow a productive, long-term worker to remain employed-- it is also required by federal law."
One of the six national priorities identified by the Commission's Strategic Enforcement Plan is for the Commission to address emerging and developing issues in equal employment law, including issues involving the ADA.
The EEOC Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Its legal staff also prosecutes discrimination cases arising from Washington, D.C. and parts of Virginia.
What if a leave of absence reveals that an employee is nonessential?
HR.BLR.com
What happens when an employee is out on job-protected leave and you realize that everything keeps moving along just fine without her? Or that her duties shouldn’t really take 40 hours per week?
Wal-Mart to pay fired Rockford employee $90K to settle suit
Rockford Register Star
A former Rockford Wal-Mart employee will receive $90,000 to settle a federal discrimination lawsuit he filed against Wal-Mart Stores Inc., the U.S. Equal Employment Opportunity Commission said today.
William Clark has intellectual disabilities, which were diagnosed in childhood, according to the EEOC. He began working for the company in 1994 and had worked there for 18 years before being fired from the store at 7219 Walton St. in Rockford.
Clark needed a written list of daily tasks in order to accommodate his disability, which company staff provided to Clark for years before halting that practice, the EEOC states. He then was fired for failing to perform certain job duties, according to the EEOC.
The company’s conduct was a violation of the Americans with Disabilities Act and the EEOC sued on Clark’s behalf. Federal law requires businesses to provide employees with disabilities reasonable accommodations that enable them to perform their jobs.
“Here, a simple written list would have provided Mr. Clark with the accommodation he needed, and he wouldn’t have been terminated,” Julianne Bowman, the EEOC’s district director in Chicago, said today.
Wal-Mart spokesman Randy Hargrove said via email tonight that the company doesn't condone or tolerate discrimination of any type. He said that Clark never requested "an accommodation and was terminated for legitimate business reasons related to workplace safety. While we deny that discrimination in any way played a part in Mr. Clark’s termination, we are glad we resolved the matter and will undertake additional ADA training at this individual store."
The "company has thousands of associates who regularly perform their jobs with reasonable accommodations which we have provided," Hargrove said.
Clark’s payout is part of a two-year consent decree requiring Wal-Mart to train employees on disability discrimination and reasonable accommodations.
DOJ Sues Mississippi for ADA Violations
Courthouse News Service
The Justice Department sued Mississippi for violating the American with Disabilities Act by forcing mentally ill people into state-run psychiatric hospitals instead of providing community-based services.
The department found that the state "unnecessarily and illegally" institutionalizes adults and children with disabilities, and fails to ensure that they have access to necessary services, according to the lawsuit filed Thursday in Jackson Federal Court.
It also says the state has recognized these failures but has not yet implemented the required reforms to meet the needs of those with disabilities.
"For far too long, Mississippi has failed people with mental illness, violating their civil rights by confining them in isolating institutions," said Attorney General Loretta Lynch in a statement. "Our lawsuit seeks to end these injustices, and it sends a clear signal that we will continue to fight for the full rights and liberties of Americans with mental illness"
The state's mental health system has been under investigation since a 2011 findings letter reported that gaps and weakness too often subjected mentally ill individuals to needless trauma, especially during a crisis.
Mississippi Attorney General Jim Hood said his office has been negotiating with the Justice Department for several years in an effort to avoid litigation, but refused to accept demands for a court-ordered consent decree "that would bind the state to perpetual federal oversight."
"This lawsuit is a clarion call to all of us in state leadership to consider how we care for the least among us and how we can make it better," Hood said. "This is a clear opportunity for our Legislature, mental health professionals, our faith-based community and all of us as Mississippians to come together to determine an effective way to address issues related to our mental health delivery system for years to come."
Hood said the state has made progress in expanding mental health programs but added that "further work remains to be done."
The DOJ has filed similar lawsuits in about a dozen other states alleging violations of the U.S. Supreme Court's Olmstead decision. It requires states to make services available to people with disabilities, including people with mental illness, in the most integrated setting appropriate to their needs.
Can employers actually pay disabled Americans below the minimum wage?
PolitiFact
Many speakers at this year’s Democratic National Convention focused on Hillary Clinton’s desire to help all people, including women, the gay and lesbian community, and racial minorities. Former Sen. Tom Harkin used his speech to focus on Americans with disabilities.
"Twenty-six years ago today, our nation won a hard-fought battle to end discrimination for over 50 million people when we signed into law the Americans with Disabilities Act, the ADA," Harkin stated. However, he continued, "when, 26 years later, employers are still allowed to pay people with disabilities below the minimum wage, it is time to change that law. Hillary Clinton will fight to eliminate the subminimum wage, and ensure that a fair day’s work earns a fair day’s pay."
Higher Ed Faces ADA Challenges Over Accessibility Of University websites
Mondaq News Alerts
Websites are vitally important to institutions of higher education for a variety of reasons. They serve as a real-time brochure for prospective students, provide important academic and administrative resources to students and faculty, and share a university's news, events, and research with a worldwide community. But if those websites are only geared toward sighted readers, institutions could face legal challenges under the federal Americans with Disabilities Act (ADA).
Lexology
Earlier this year the Equal Employment Opportunity Commission (EEOC) published an official Final Rule to amend the Regulations and the accompanying Interpretive Guidance implementing Title I of the Americans with Disabilities Act (ADA). This Final Rule affects all wellness programs that include disability-related inquiries and/or medical examinations and requires that all health programs must be “reasonably designed to promote health or prevent disease.”
Lexology
Q: We have an employee who is unable to perform some of his essential job requirements because of physical limitations due to his weight. Do we need to provide him with an accommodation?
Obesity, by Itself, is not a Disability Protected by ADA
Lexology
In Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016) (No. 14-3858), plaintiff applied for a machinist job with defendant, and defendant extended him an offer of employment contingent on a satisfactory medical review. After defendant’s doctors conducted a physical exam, defendant revoked the offer because the plaintiff was obese. Plaintiff brought suit under the Americans with Disabilities Act (ADA), claiming that his obesity was a disability protected by the statute. The district court granted summary judgment in favor of defendant, and the Eighth Circuit affirmed. The court held that obesity – even morbid obesity – is not a disability under the ADA unless it results from an underlying physiological disorder or condition. The ADA defines a disability as an actual or perceived “physical impairment,” but does not define that term. The EEOC regulations regarding the ADA, however, define a physical impairment, and under that definition, a physical characteristic qualifies as a physical impairment only if it both falls outside the normal range and occurs as the result of a physiological disorder. The court joined the Second and Sixth Circuits in holding that this definition applies to ADA claims brought in federal court. The court then concluded that plaintiff’s claim was properly dismissed because plaintiff admitted that he did not suffer from any medical condition or impairment, his weight caused no physical limitations, and he was not aware of any underlying condition that contributed to his obesity.
8th Circuit: Extra FMLA leave is not an ADA accommodation
HR.BLR.com
The U.S. 8th Circuit Court of Appeals—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—recently affirmed an Arkansas district court's ruling that the termination of a juvenile detention officer didn't amount to discrimination under the Americans with Disabilities Act (ADA) or retaliation under the ADA, the Arkansas Civil Rights Act (ACRA), or the Family and Medical Leave Act (FMLA).
ADA: Injured worker commits error en route to shutout in 7th Circuit
HR.BLR.com
Hope and belief are the bedrock of every Cubs fan’s baseball dreams. And while hope and belief might be enough to get people through the inevitable August slump, they aren’t necessarily enough to establish a disability under the Americans with Disabilities Act (ADA). Here’s what a recent decision from the U.S. 7th Circuit Court of Appeals—which covers Illinois, Indiana, and Wisconsin—has to say about hope, belief, and the ADA.
Group Targets Phoenix-Area Businesses With Flurry Of ADA Lawsuits
KJZZ
When Kimber Lanning got served papers for allegedly violating the Americans with Disabilities Act, her first question was, how soon I can fix it?
“I had no idea that there was a height regulation on the signage,” Lanning said as she stood in the parking lot outside her music shop Stinkweeds in Phoenix’s Uptown neighborhood.
“Secondly, I thought ‘Surely, there’s 15, or 30 or even 60 days to comply,' but in fact, none of that was true,” she said.
Glance around Lanning’s parking lot with its van accessible space and her business might seem like an unlikely target. Even though she says the rest of her business is ADA compliant, just one violation— not having her sign the required five feet off the ground— was enough for a lawsuit.
“They’re looking for sign height because it’s a loophole. So in other words they’re not going around and actually checking businesses for accessibility,” Lanning said.
Transgender Bias Claims Under ADA Not Uncommon
Bloomberg BNA
Discrimination charges based on transgender status have been filed under Title VII, but an EEOC district director said he is seeing “an emerging issue”—those claimants are starting to assert violations of the Americans with Disabilities Act, too.
“You can expect to see this issue play out under both statutes,” Reuben Daniels told participants Aug. 3 at the National Industry Liaison Group's annual conference in Charlotte, N.C. Daniels is district director of the Equal Employment Opportunity Commission's Charlotte District Office.
“Right now, the EEOC has not taken a position on this issue,” Daniels said.
However, the Justice Department has argued in federal courts that gender dysphoria is a disability under the ADA and not excluded by a statutory exemption for gender identity disorder claims not resulting from a physical impairment.
DOJ Sues Texas County Over Disabled Voting Access
Breitbart News
The federal complaint filed by the DOJ alleges that the largest county in Texas has violated the Americans with Disabilities Act (ADA). The county encompasses Houston and is the third most populous in the
According to the complaint, the county uses approximately 775 election day polling locations, and 39 early voting locations during each of its county-wide elections. The federal lawsuit acknowledges that individuals may vote by mail but states that doing so is “under limited conditions.”
NY Appeals Court Says Accessible Entrance Is Not Feasible
Mondaq News Alerts
A New York appellate court has upheld a property owner's claim of "structural infeasibility" in refusing to construct an accessible entrance, effectively breathing new life into a defense that owners and tenants often rely on when conditions prevent them from satisfying the stringent accessibility standards in federal, state and local anti-discrimination laws.
In its March 30, 2016, decision in Matter of Marine Holdings LLC v. New York City Commission on Human Rights, the New York State Appellate Division, Second Department, upheld a property owner's assertion that it would be structurally infeasible to install an accessible entrance at a tenant's apartment.
The decision is significant because it demonstrates that this important defense is viable and that full compliance with the accessibility standards is not always attainable.
The tenant at issue in Matter of Marine Holdings LLC lives in a housing complex and uses a wheelchair due to a spinal cord injury that left her paralyzed.
California is ground zero for ADA lawsuit abuse
Northern California Record
State Rep. Ken Calvert, (R-CA) spoke out against abusive litigation brought on alleged violations of the Americans with Disabilities Act (ADA) earlier in the state's legislative session saying that businesses ought to be given a reasonable period of time to fix access problems.
Since 2008, number of UAS students using disability services quintuple
KTOO
The Americans with Disabilities Act, or ADA, requires institutions receiving public money, including colleges, provide a level playing field for students who have disabilities.
In 2008, the act was amended to expand the definition of disability. That fall, 23 University of Alaska Southeast students were using disability services. By the spring semester of this year, there were 119. The upward trend is also true at the Universities of Alaska Anchorage and Fairbanks, but it’s not as dramatic.
Scott Herhold: Falafel's Drive-In battling serial ADA plaintiff
Santa Cruz Sentinel
The specialties at Falafel’s Drive-In on Stevens Creek Boulevard in San Jose include falafel sandwiches, gyros, salads, pita chips and a banana shake. Nowhere on the menu does the iconic San Jose restaurant offer humble pie.
The 50-year-old eatery is one of the latest victims of serial plaintiff Scott Johnson, who has sued the restaurant over Americans with Disabilities Act violations like countertops that are too high, bathrooms that are tough to navigate, and handicapped parking in the wrong place.
Tell Mel: Some Uber drivers ignore ADA, break law
The News-Press
Last week my column was about a man who has a spinal cord injury getting stuck in the non-accessible bathroom at The Pewter Mug in North Naples. In that column I promised more to come on the topic of businesses discriminating against people with disabilities, which brings the conversation around to a company called Uber.