EEOC Sues Cutter Mazda of Honolulu for Disability Discrimination
The U.S. Equal Employment Opportunity Commission (EEOC) has announced the filing of a lawsuit against Cutter Mazda of Honolulu alleging discrimination against a job applicant due to his disability. EEOC contends that Cutter Mazda denied an applicant a job based on his hearing impairment.
Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in the U.S. District Court for the District of Hawaii (EEOC v. MJC, Inc. and GAC Auto Group, Inc. DBA Cutter Mazda of Honolulu, et al, Case No. 1:17-cv-00371) after first attempting to reach a pre-litigation settlement. The agency seeks back-pay, compensatory and punitive damages on behalf of the applicant, along with injunctive relief to prevent and address disability discrimination from happening in the future.
"Disability discrimination remains a persistent problem that needs more attention by employers," said Anna Park, regional attorney for the EEOC's Los Angeles District, which includes Hawaii in its jurisdiction.
Glory Gervacio Saure, director of the EEOC's Honolulu Local Office said, "Applicants should not be denied a position under the assumption that the individual cannot do the essential functions of the job."
MJC, Inc. and GAC Auto Group, Inc. DBA Cutter Mazda of Honolulu operates four automobile dealerships on the island of Oahu. According to their website, www.cuttermazdahonolulu.com, Cutter Mazda sells new and certified pre-owned vehicles, provides vehicle finance services, along with automobile repair parts and services.
Eliminating barriers in hiring, especially hiring practices that discriminate against people with disabilities, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP).
Patience required to ensure lawful ADA reasonable accommodations process
Business Management Daily
The ADA requires reasonable accommodations for disabled employees to help them perform their jobs. Employers that patiently go about the sometimes complicated business of identifying reasonable accommodations for disabled employees seldom end up losing in court.
The key is to take the ADA seriously and work with the employee at every stage, from the time when a disability becomes apparent to the exploration of possible accommodations to final decisions on whether or not an accommodation will work.
The process of finding an accommodation must be interactive, a give-and-take between employer and employee. Document every step along this two-way street—both your accommodations suggestions and the employee’s response. That way, should the employee finally reject your offers, you can show that you lived up to your ADA obligations.
Recent case: Andrea, who worked for the University of Pennsylvania, received increasingly negative performance reviews. Her performance may have slipped because her mother was gravely ill. After her mother died, Andrea took two weeks of leave and then returned to work.
Her performance didn’t improve. Andrea blamed her grief in part, as well as a supervisor she said treated her poorly. For example, she claimed her supervisor wouldn’t say good morning to her and generally wasn’t sympathetic to her family situation.
Andrea requested FMLA leave for acute stress disorder, major depressive disorder and memory issues. Her request was approved and she took 12 weeks of FMLA leave. Afterward, she still wasn’t prepared to come back and took an additional 12 weeks off under the university’s more generous leave program.
Then she requested reasonable ADA accommodations before she could return. The university agreed to three of her four requested accommodations, including conducting an ergonomic review of her workspace, allowing a part-time schedule and additional time to reacquaint herself with the job and procedures so she could successfully perform the essential functions. However, the university drew the line at Andrea’s request for a new supervisor.
Andrea rejected the proposed accommodations. She lost her job and then she sued.
The court dismissed her lawsuit. It reasoned that not only had the university provided her more time off as an accommodation, but it had offered to provide every accommodation Andrea was entitled to. Demanding a new supervisor isn’t reasonable, the court concluded.
The court said Andrea, not the university, had been responsible for the breakdown of the reasonable accommodations process and therefore could not sue for failure to accommodate. (Sessoms v. Trustees of University of Pennsylvania, ED PA, 2017)
Final note: The university did everything right. For example, it offered additional time off after Andrea exhausted her FMLA leave. Terminating a disabled employee once they have used all their FMLA leave may violate the ADA. That’s because additional time off may be a reasonable accommodation if the employee’s request isn’t for indefinite leave.
Plus, the university worked patiently with Andrea and considered every one of her requests for accommodations, rejecting only the one (a different supervisor) for which there is little to no legal precedent.
Fifth Circuit Finds Telecommuting Not Reasonable for Accommodation for Litigation Attorney
JD Supra
Contrary to the Equal Employment Opportunity Commission’s (EEOC) position discussed in last week’s EmployNews, federal courts continue to allow employers to require employees to actually come to work. Last month, the Fifth Circuit Court of Appeals upheld the decision of a state attorney general’s office to decline a permanent homework accommodation for an attorney litigating cases on behalf of the state. The court concluded that under the Americans with Disabilities Act (ADA), teamwork and collaboration are essential to successful case management.
In Credeur v. State of Louisiana, the plaintiff developed serious kidney problems requiring a transplant. Her employer allowed her to work from home for six months, but several years later, continuing complications led her to request a renewal of the telecommuting arrangement. After granting the request for five months, the attorney general concluded that the requested accommodation did not allow her to perform the essential functions of her job, because among other things, she could not attend hearings, conferences or depositions. The plaintiff attempted to return to working at the office, but subsequently resigned and filed suit under the ADA, alleging failure to provide reasonable accommodations.
In evaluating the claim, the Fifth Circuit deferred to the employer’s determination of the job’s essential functions. The employee’s own opinions about the position’s essential functions receive a significantly lower degree of consideration. Contrary to the administrative position adopted by the EEOC, the court agreed that regular worksite attendance was an essential function of the plaintiff’s job. Positions that require interaction with co-workers, teamwork and supervision of staff cannot be performed remotely. The fact that the employer was able to temporarily accommodate working from home does not mean that it is stuck with a permanent telecommuting arrangement.
As indicated last week, if the job requires regular attendance and interaction with co-workers, this should be detailed in the position’s written job description. If the employer concludes that the employee cannot remotely perform these functions, it must remember to determine if there are any vacant available positions meeting the employee’s qualifications that can be done from home.
UPS to Pay $1.7M to Resolve EEOC's 'Maximum Leave' Lawsuit
Bloomberg BNA
United Parcel Service Inc. reached a $1.7 million agreement with the EEOC to settle a nationwide lawsuit challenging the delivery company’s policy of discharging workers who can’t return from medical leave after 12 months.
More than 70 workers allegedly harmed by UPS’s “inflexible 12-month leave policy” will share in the settlement, according to the proposed consent decree filed July 28 ( EEOC v. United Parcel Serv., Inc. , N.D. Ill., No. 1:09-cv-05291, proposed consent decree 7/28/17 ).
The company also agreed to certify to the Equal Employment Opportunity Commission that its workplace policies prohibiting disability discrimination include the requirement that human resources personnel seek legal counsel before firing a worker who has reached the end of a medical leave of absence. The agreement, which would apply to all UPS facilities in the U.S. and run for three years, also includes notice-posting, training, record-keeping, reporting, and other requirements.
Watch Out: Workplace Smells, ADA Disability, Telecommuting, and an EEOC Lawsuit
JD Supra
According to the EEOC in this just filed lawsuit, a home care services provider in North Carolina violated federal disability rights law when it rejected telecommuting requests from an employee whose asthma and COPD “made her sensitive to workplace smells.”
Earlier this month, the Equal Employment Opportunity Commission iled suit against a home healthcare company to “correct unlawful employment practices on the basis of disability.” In the complaint, filed in EEOC v. Advanced Home Care, Inc., No. 1:17-cv-00646 (M.D.N.C. July 12, 2017), the EEOC alleges that Advanced Home Care, Inc. refused to provide Elizabeth Pennell, a “qualified individual with a disability,” with a reasonable accommodation, and discharged her in violation of the Americans with Disabilities Act.
DOJ Disables Titles II and III Website Regulations
Lexology
The U.S. Department of Justice (DOJ) has placed its once-planned website accessibility regulations under Titles II and III of the Americans with Disabilities Act (ADA) on an inactive list, putting to rest speculation about what the Trump administration may do with respect to the long-promised regulations. As published in the Unified Regulatory Agenda, a semiannual compilation of information about regulations under development by federal agencies, plans that once had the Title II and III regulations coming in Fiscal Years 2017 and 2018, respectively, are now inactive.
DOJ Puts ADA Website Project on Hold
JD Supra
On July 20, the Trump administration published its Unified Agenda of Regulatory and Deregulatory Actions, which transferred to an “inactive actions” list the Department of Justice’s (DOJ’s) ongoing project for additional rulemaking involving the potential application of the Americans with Disabilities Act (ADA) to private businesses’ websites.
This is a significant event in the course of the federal government’s messaging on this issue.
Maine Supreme Court rules hospital did not discriminate against nurse over disability
Legal News Line
Mercy Hospital did not discriminate against a registered nurse and did not violate the Maine Human Rights Act (MHRA) when the hospital terminated the employee because she did not meet the MHRA’s standard of a “qualified individual with a disability” according to the Maine Supreme Court.
On July 20, the court ruled against Beth Carnicella, a registered nurse once employed at Mercy who challenged a lower court’s summary judgment decision in favor of Mercy. She claims she was terminated because of her disability and that Mercy failed to provide reasonable accommodations for her.
Misleading ADA letters being sent to business owners
WDBJ7
The Better Business Bureau and other organizations are warning businesses to be on alert. Some businesses in our region are getting letters, saying they're in violation of the Americans with Disabilities Act. The letters are threatening fines and future lawsuits.
Mentally Disabled to Lose Jobs Due to Seattle's $15 Minimum Wage
PJ Media
For many mentally disabled people, working is everything. For people who are desperate for a taste of independence, a low-wage job is something to celebrate. Unfortunately, in Seattle, there's a good chance the mentally disabled won't be able to find employment anymore.
Competition Forces Hotels to Comply with Digital Accessibility Standards
SYS-CON Media
American hotels and other hospitality establishments are taking steps to ensure that all guests and clients are awarded a fully accessible experience both on site and online. In response to the more than 50 million adults living in the United States with disabilities, hotels are starting to make more sweeping changes to ensure that visitors' experience at their hotel is not hampered by limited accessibility or inconvenience.
'Ask Evan' How did the Americans with Disabilities Act begin?
FOX43.com
This week's 'Ask Evan' question deals with the Americans with Disabilities Act. Stephen S. asks, "What is the history of the Americans with Disabilities Act and how did it get started? I know it was started in 1990 and I'm just trying to figure out the background of it since I'm physically disabled with cerebral palsy."
Optimized360 Introduces ADApt, the Web Accessibility Engine for Medical Websites
New Kerala
No one wants to get on the wrong side of the law and its regulations. Dentists and physicians rightly go to great lengths to stay compliant with federal, state and local guidelines to avoid government sanctions and lawsuits from patients.
New ruling requires websites to make ADA accommodations
Columbus Business First
In June, a federal judge in Florida passed down an important Americans with Disabilities Act (ADA) website accessibility decisions to date, finding that Winn-Dixie was liable under the ADA because its website was inaccessible.
In Gil v. Winn-Dixie Stores, Inc., the plaintiff argued that Winn-Dixie’s website was inaccessible to visually-impaired individuals and thus violated the ADA because features such as the website’s online coupons and pharmacy could not be accessed using a screen reader. The court ruled in favor of the plaintiff on all issues and awarded injunctive relief and attorneys’ fees.
10 more ADA lawsuits filed by 'Law Doc'
WJXT Jacksonville
The number of lawsuits over violations of the Americans with Disabilities Act continues to grow. The I-TEAM has learned a second Jacksonville person has filed 10 federal suits this year.
Workers comp claims challenged by federal disability laws
Business Insurance
Employment laws that govern disabilities in the workplace can also apply to workers compensation claims, sometimes adding more complexity to an already-challenging situation, according to experts.
Employing the physically challenged
Greenhouse Management
in my travels to greenhouse operations, I notice the employment of greater numbers of physically challenged workers. This trend stems from several factors:
1. ADA. Today, there are about 54 million Americans with physical or mental disabilities. The Americans with Disabilities Act (ADA) that went into effect in 1992 requires that all businesses with 15 or more employees follow the guidelines of the ADA. These include:
o Job descriptions that list the essential functions or tasks to be performed, not the method of doing them.
o Interviews and tests that don’t discriminate against those with disabilities.
o Accessible accommodations and workplaces.
o Job restructuring and part-time or modified work schedules.
2. Training programs. There are more programs that train people with disabilities so that they can be gainfully employed. In New England, for example, there are more than 50 schools, hospitals, prisons and rehabilitation programs that have greenhouses for training and skills building. Some programs develop a worker’s skills and then find employment for that individual. Others use a team approach and can provide you with a group of workers and a supervisor to work in your greenhouse each day. Many individuals with disabilities make excellent employees.
3. More seniors. We are also seeing more senior citizens employed. As the population becomes older, there are more senior citizens, many with disabilities. Many seniors come from early retirement programs or company buyouts and they may have specialized skills that can benefit a greenhouse operation.
5 important ways to talk about disability during a job search
Ladders
Looking for a job is one of the hardest tasks we face in our careers, and it can be even more challenging for disabled Americans.
Yes, thanks to the Americans with Disabilities Act, which just turned 27 years old, it’s against the law for employers to discriminate against people for any disabilities. Life, however, is rarely that simple.
The ADA provides some strong protections that require only two things from job-seekers: the candidate has to disclose his or her disability to the employer and ask for reasonable accommodations.
That deceptively simple checklist can be fraught, however, when it comes to the details. For instance, who do you disclose to? And when do you tell your potential employers: in the application, at the interview, after you get an offer, or some other time? And then what do you do if your employer disagrees with your requests?
Tampabay.com
The Americans with Disabilities Act, a civil rights act signed by President George H.W. Bush, just had its anniversary, and I am reminded of the great strides our great nation has taken since 1990 to include all people with disabilities into every phase of society.