Horizontal Well Drillers Sued by EEOC For Age And Disability Discrimination In Hiring
Horizontal Well Drillers (HWD), an oil and gas drilling company with its corporate offices in Purcell, Okla., violated the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) when it declined to hire applicants based on their age or reported history of filing workers' compensation claims, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit.
According to EEOC's suit, HWD used information from employment applications to discriminate in hiring based on applicants' age and history of filing workers' compensation claims. The suit also seeks relief for Wilbert Glover, an applicant whom HWD forced to undergo an allegedly unlawful post-job-offer medical exam. The agency claims that HWD also violated federal law when it withdrew Glover's job offer based on information it learned from the exam.
Ebola, Trypanophobia, And Deafness: What Does The ADA Require?
Above the Law
Are you required to hire someone with a disability even if he cannot do the job?
And can you refuse to hire someone who you think – maybe – has a disability?
The Americans With Disabilities Act (“ADA”) is the place to look. However, these questions cannot be answered with a simple yes or no. There’s some work you have to do to answer them: it all depends – on the facts and circumstances, and whether the applicant can do the job, with or without an accommodation.
But generally – you cannot simply say “no job” – without a lot more.
Capital One Unlawfully Fired Obese Manager, Lawsuit Alleges
Bloomberg BNA
Capital One violated a federal disability discrimination law by firing a manager whose weight significantly increased after four kidney surgeries, a lawsuit filed Aug. 16 alleges ( Kaptur v. Capital One, N.A. , N.D. Ill., No. 17-05984, complaint filed 8/16/17 ).
Federal appeals courts are split on whether obesity by itself qualifies as a disability under the Americans with Disabilities Act. The U.S. Supreme Court declined to hear the issue in October.
Paul Kaptur worked for Capital One in Illinois as a relationship manager for automobile loan customers. He had kidney surgeries that led to obesity and body odor, he says. When his condition triggered a strong odor, he requested reasonable accommodations such as telework and an office farther away from his co-workers.
Alcohol, paranoia doom nuclear power plant armed guard's ADA suit
HR Dive
- A nuclear power plant did not violate the Americans with Disabilities Act (ADA) when it fired an armed security guard over alcohol use and alleged "paranoid thoughts," a federal appeals court has ruled (McNelis v. Pennsylvania Power and Light Company, No. 16-3883 (3rd Cir., Aug. 15, 2017)).
- When the guard’s friend and co-worker brought these issues to the employer’s attention, the plant sent him for a fitness-for-duty evaluation. A psychologist recommended that he be removed from duty and the plant immediately fired him. The guard sued, alleging that the employer violated the ADA because it believed that he had disabilities and then fired him because of those impairments.
- The 3rd U.S. Circuit Court of Appeals, however, said that it didn't matter whether the plant believed that the guard's alcohol use and mental health impairments rose to the level of "disability" under the law. Instead, he had no ADA claim because he couldn’t perform one of the essential functions of his job: complying with federal safety regulations that require nuclear power plant employees to be unimpaired.
United States: Nevada Attorney General Takes Dramatic Action to Stop Serial Plaintiff's ADA Title III Lawsuits
Mondaq News Alerts
In an apparent effort to stop one plaintiff's lawsuit spree, the Nevada Attorney General moves to intervene in a federal ADA Title III lawsuit arguing that the plaintiff failed to provide notice to the state agency responsible for enforcing Nevada's antidiscrimination law before filing suit.
On Wednesday, August 9, the Nevada Attorney General filed a motion to intervene in an ADA Title III lawsuit filed by serial plaintiff Kevin Zimmerman who (according the motion) had sued more than 275 Nevada businesses in federal courts in the past seven months.
The motion to intervene argues that Title III of the ADA requires private plaintiffs to – before filing in federal court – provide 30 days' notice to the state agency responsible for enforcing state laws that prohibit the same type of discriminatory conduct at issue in the federal suit. The Nevada Attorney General explained that the notice gives the state enforcement agencies an opportunity to conduct their own investigation and take action. The brief notes that there is an exception to this notice requirement where a plaintiff has actual notice that the defendant does not intend to comply with the law, but Mr. Zimmerman did not plead that he had actual notice of any such intent. This is an interesting argument that could be a useful defense strategy in some ADA Title III cases, though it has been rejected as the basis for a dispositive ruling by the Ninth Circuit in Botosan v. Paul McNally Realty.
Grubhub Faces ADA Suit Over Website Accessibility
Law360
The parent company of online and mobile food ordering service Grubhub was hit Wednesday in Florida federal court with an Americans with Disabilities Act lawsuit that alleges the company discriminates against the blind and visually impaired.
Open Access For All Inc., a Florida nonprofit whose members include individuals with sensory-related disabilities as defined by the ADA, said Grubhub Holdings Inc. is aware that it should provide full access to all visitors to its website, grubhub.com, but the site’s lack of auxiliary aids and services excludes the visually impaired from doing business with the ordering service.
“This case arises out of the fact that defendant Grubhub Holdings Inc. has operated its business in a manner and way that completely excludes individuals who are visually impaired from access to defendant’s business based upon defendant’s failure to provide auxiliary aids and services for effective communications,” Open Access said in its complaint.
Open Access said Grubhub is rightly defined as a “public accommodation" within the meaning of the ADA’s Title III because the service picks up ready-to-eat meals from eating and drinking establishments and delivers the meals to the public.
However, Open Access alleged, Grubhub’s website lacks accommodations that would allow visually impaired people who use screen reader software access to the site, such as prompting information to locate and accurately fill out online forms and browsing of the eating and drinking establishments Grubhub provides access to.
One or more Open Access members attempted but failed to locate a Grubhub accessibility notice that would direct them to a webpage with contact information for disabled individuals who have questions or difficulties communicating with the company, the complaint alleged.
“The fact that visually impaired individuals cannot communicate with defendant excludes those visually impaired individuals from accessing defendant’s website, and thus access to the eating and drinking establishments’ physical locations, and left one or more Open Access For All members with the feeling of segregation, rejection and isolation,” the complaint said.
Scott R. Dinin, Open Access For All’s lawyer, told Law360 that U.S. District Judge Robert N. Scola Jr.’s June 12 decision in an Americans with Disabilities Act case that Dinin litigated against Winn-Dixie Stores Inc. changes the landscape for businesses and the services they offer to the visually impaired.
“Services have to be offered to the whole public,” Dinin said. “If you’re going to offer services to the marketplace, you have to offer them to everybody. You can’t be selective.”
Judge Scola concluded in his decision, entered after a two-day bench trial in Miami, that the lack of accessibility of supermarket chain Winn-Dixie's website violated a blind Florida man's rights under the ADA, in what the parties believe was the first case to go to trial on this issue.
The judge ruled that plaintiff Juan Carlos Gil sufficiently alleged the Winn-Dixie website's incompatibility with standard screen reader software caused him injury by denying him the full and equal enjoyment of what the Southern chain's 495 stores offer to sighted customers.
The case was closely watched by lawyers and businesses as it addressed questions about accessibility requirements for a public accommodation’s website under the ADA. While Judge Scola stopped short of ruling whether Winn-Dixie's website is a public accommodation in and of itself, he confirmed that Title III of the ADA applies if the website is “heavily integrated” with and serves as a “gateway” for the physical stores.
The Grubhub suit seeks injunctive and declaratory relief to correct Grubhub’s alleged policies and practices — including an order requiring the company to update its website to remove barriers so individuals with visual disabilities can access the site in accordance with Title III of the ADA — as well as attorneys' fees and costs.
“No one’s pointing fingers here. We’re trying to spread the message,” Dinin said. “Grubhub is a good company, and we want to make them an even better company. We’re living in a post-Winn-Dixie decision world.”
A representative for Grubhub declined to comment Wednesday.
Open Access For All is represented by Scott R. Dinin of Scott R. Dinin PA.
Legal counsel information for Grubhub was unavailable.
The case is Open Access For All Inc. v. Grubhub Holdings Inc., case number 1:17-cv-23117, in the U.S. District Court for the Southern District of Florida.
Disabled Akron man suing businesses over ADA compliance
Akron Beacon Journal
A disabled Akron man has filed seven federal lawsuits this year against businesses in Summit and Medina counties, claiming they are violating the Americans with Disability Act.
Mom: Diabetic Daughter Not Allowed On Waterslide (Photo)
Opposing Views
An Ohio mom said her diabetic daughter was not allowed to ride a water slide at a public water park because she was wearing an insulin pump.
Beth McBride said her 12-year-old daughter, Alexis, was told by a lifeguard that she couldn't ride water slides at a water park with her insulin pump, which she needs to live, attached, WKEF reports. Beth said the city of Kettering violated the Americans With Disabilities Act by not allowing her daughter to go on the slides.
EEOC targets UPS Freight for alleged disability discrimination
Legal News Line
The U.S. Equal Employment Opportunity Commission (EEOC) announced a lawsuit Aug. 8 against UPS Freight, alleging violations of the Americans with Disabilities Act (ADA).
"Employers must treat employees with disabilities the same as those without disabilities when issuing workplace benefits," said EEOC St. Louis District director James R. Neely Jr.
According to EEOC, Thomas Diebold began work at UPS Freight in 2006. Diebold purportedly suffered a minor stroke in 2013 and disclosed it during an annual driver physical examination. He was unable to renew his Department of Transportation (DOT) medical examiner’s certificate until December 2014. During the intervening period, Diebold allegedly was discriminated against. The company, according to EEOC, had a policy of paying drivers who are reassigned to non-driving work due to disability 10 percent less than drivers who are reassigned for non-medical reasons.
"Employers cannot seek refuge from the reach of the ADA by relying on a union agreement when the agreement itself requires discrimination based on disability,” said Andrea G. Baran, the EEOC's regional attorney in St. Louis.
The agency seeks monetary relief for Diebold, as well as injunctive relief requiring the company to change its policies.
EEOC’s St. Louis District Office oversees agency operations in Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois.
Pueblo-area restaurants can post flyers explaining service animal law
Pueblo Chieftain
To clear up confusion about whether or not service animals are allowed in restaurants under state law, the Pueblo City-County Health Department is providing informational flyers for food establishments to post describing Colorado's service animal law, which allows for their admittance in businesses.
A copy of the flyer, which states: "No animals except service animals specifically trained to aid a disabled person defined under the American Disabilities Act" can be printed from the website thedishpueblo.blogspot.com/p/service-animals.html to be posted at food businesses.