Employee who threatened to kill supervisors not protected by disability discrimination law
Lexology
In Mayo v. PCC Structurals, Inc., the Ninth Circuit Court of Appeals confirmed that the ADA does not require that employers accommodate disabled employees who threaten violence.
Timothy Mayo suffered from major depressive disorder, and, in response to issues he and other co-workers were having with a supervisor, made several threats to his co-workers that he planned to come into work and shoot his supervisor and other management-level employees. After human resources learned of the threats and asked Mayo whether he planned to carry out his threats, Mayo was non-committal in his response. Accordingly, the company immediately suspended Mayo, barred him from the property and contacted the police. The police later took Mayo into custody and placed him under medical care. After two months of leave, a psychologist cleared Mayo to return to work but recommended a new supervisor assignment. However, instead of reinstating Mayo, the company terminated his employment.
Mayo filed a disability discrimination lawsuit under Oregon’s counterpart to the ADA. The trial court dismissed the lawsuit, finding that once Mayo made his “violent threats,” he was no longer “entitled to protection under the ADA and Oregon’s disability discrimination statute.” The Ninth Circuit agreed. The court held that Mayo could not assert a claim of disability discrimination because he was not “qualified” at the time of discharge. In so holding, the court determined that an “ability to appropriately handle stress and interact with others” is an essential function of almost every job.” The court concluded that “[w]hile the ADA and Oregon disability law protect important individual rights, they do not require employers to play dice with the lives of their workforce.”
ADA Website Cases Filed In Federal Court In Pittsburgh, With More Likely to Follow
Mondaq News Alerts
Is Your Website Accessible to the Disabled?
A new wave of ADA website lawsuits is anticipated to be filed in federal district courts around the United States against retailers, banks, hospitals, universities and all other places of public accommodation that operate websites.
In the past three weeks, Pittsburgh-based law firm, Carlson Lynch, which was responsible for filing hundreds of Americans with Disabilities Act (ADA) ATM class action lawsuits nationwide, has filed four ADA website lawsuits in federal district court in Pittsburgh. One of the lawsuits was filed against a bank, while the three other lawsuits were filed against national retailers. Since May 2014, there has been a significant increase in the number of lawsuits and demand letters alleging that businesses have denied access to visually impaired customers by operating websites that are inaccessible to them in some manner. However, given the history of the Carlson Lynch firm with the ADA ATM lawsuits, a new wave of ADA website lawsuits is anticipated to be filed in federal district courts around the United States against retailers, banks, hospitals, universities and all other places of public accommodation that operate websites. This is likely to be only the beginning, and businesses that maintain a website should be aware of the latest developments.
The lawsuits filed in federal district court in Pittsburgh all contend that "[b]lind and visually impaired consumers must use screen reading software or other assistive technologies in order to access website content" and that the defendants' websites contain "digital barriers which limit the ability of blind and visually impaired consumers to access the site." Each lawsuit then describes the specific access barriers that the visually impaired plaintiffs allegedly encountered.
Appeals court reverses Baxter's win in ADA case
Reuters
Baxter Healthcare Corp may have violated the Americans with Disabilities Act by rescinding a job offer to a deaf woman out of fear that she presented a safety risk to donors in a plasma lab, a federal appeals court held on Monday.
A unanimous three-judge panel of the 10th U.S. Circuit Court of Appeals reversed a lower-court ruling for Deerfield, Illinois-based Baxter, a multinational company doing business in Wyoming as BioLife Plasma Services.
Court rules in favor of fired teacher's lawsuit after 23 absences
WRTV Indianapolis
The lawsuit for a teacher whose contract wasn’t renewed for too many absences will be allowed to continue, a U.S. Court of Appeals ruled Monday.
Terrence Preddie, a former fifth-grade teacher in Bartholomew County, sued when his contract wasn’t renewed after 2011 because he was absent 23 times.
Preddie’s reason for not being at work was that he is diabetic and his son, Elliot has sickle cell anemia.
He sued under the Civil Rights Acts, the Americans with Disabilities Act and the Family and Medical Leave Act.
Uber driver removed after refusing passenger with whelchair
WFAA
Uber says it has removed a Dallas driver from the rideshare service after they refused to pick up a passenger in a wheelchair and then charged him for the fare.
Effective management of employee medical issues in 2015
Lexology
Compliance with the Family & Medical Leave Act and the Americans with Disabilities Act continues to cause issues for even the most experienced workplace professionals. In recent years, both the FMLA and ADA have expanded coverage for employee medical issues. For example, employees who are approved for FMLA-covered intermittent leave must be permitted to use that leave in one-hour increments (or even smaller increments if an employer permits these short bursts of leave for non-FMLA absences). Likewise, the ADA’s current version now covers most employee health conditions and, instead, places the emphasis on whether employers have taken all available steps to make reasonable accommodations for disabled workers.
So far, 2015 has brought new developments for both the FMLA and the ADA. In February 2015, the Department of Labor proposed a change to the FMLA’s definition of the term “spouse” to encompass both common law and same-sex marriages. In this proposed rule, the term “spouse” would mean a husband or wife recognized under State marriage laws in the “place of celebration”. In April 2015, the EEOC issued a Notice of Proposed Rule Making on the appropriate parameters of employer wellness programs within the confines of the ADA. Among the guidance contained in the EEOC’s proposed rules is that such programs must be truly voluntary; must be reasonably likely to promote health or prevent disease; employees may not be required to participate in a wellness program; and they may not be denied health coverage or disciplined if they refuse to participate.
In this continually-changing environment, it is imperative that employers understand their obligations under the FMLA; the ADA; and the interplay between these two laws.
Justice Pursues ADA Action Against Network of Ga. Programs
Education Week
The Justice Department's recent scathing letter to Georgia alleging discrimination at a statewide network of alternative schools is the latest example of the government's willingness to use a muscular interpretation of the Americans with Disabilities Act to eliminate what it views as segregated school settings.
Are you using pre-employment tests as part of the interview process?
Lexology
If your company uses pre-employment tests to screen individuals in an attempt to find the best candidates during the interview process, then Target Corporation’s payment of $2,800,000 to the EEOC might catch your attention. The EEOC announced yesterday that the retail giant agreed to resolve its dispute with the EEOC over whether the test questions and results worked against candidates based on their sex, race, and disability status.
The specific test or questions were not made public because Target resolved this dispute before litigation was filed, but Target’s decision to pay such a significant amount makes it clear that there were questions that created concern over whether they discriminated against candidates based on their race and sex. Additionally, some of the questions constituted psychological assessments and were therefore considered a pre-employment medical examination that violated the ADA.
Many employers who use these types of test to identify strong candidates may be unknowingly discriminating against individuals based on race, gender, religion, and disability. The questions typically do not on their face constitute discriminatory questions, but the answers to those questions and how they affect the score or rating on the test can sometimes have a disproportionate or disparate impact on members of a particular sex, race, or religion, or those with disabilities. If your company uses pre-employment tests during the interview process, they should avoid any questions relating to physical or mental health, and should be reviewed by an employment attorney to determine whether the answers to any of the questions could have a disproportionately adverse impact on members of a protected class.
Phobias Can Be Frightening for HR
Workforce Management
Employees with phobias can sometimes find protection under the Americans with Disabilities Act. This is perhaps even more likely since 2008, when the Americans with Disabilities Act Amendments Act made the definition of “disability” more inclusive.
Nevertheless, whether the ADA’s protections apply and whether employers must provide particular reasonable accommodations under the law depends largely on the specifics of each situation.
For instance, it may seem logical that someone with acrophobia (a fear of heights) would struggle in a job that requires regular maintenance work on bridges. One might assume that such an employee wouldn’t be a qualified individual under the ADA, and therefore wouldn’t be entitled to a reasonable accommodation under the law. However, a 2011 case before the 7th Circuit Court of Appeals (Miller v. Illinois Department of Transportation) indicated that the answer wasn’t that simple.
The court indicated in this case that working at extreme heights might not have been an essential job function; it was involved in only about 3 percent of the employee’s duties. What’s more, the employee’s fear had been accommodated for several years, as he had not been required to do the tasks that included such work. Ultimately, the appeals court ruled that the employee may have needed to be accommodated after all, and that there was enough left in question with this case for a jury to decide.
Parents sue boarding school in Massachusetts, claim Wi-Fi making son sick
The American Bazaar
An elite boarding school in Massachusetts is being sued by parents who claim the school’s Wi-Fi signal is making their son ill.
The unidentified plaintiffs claim the Fay School in Southboro, Mass. is exacerbating a condition in their son known as Electromagnetic Hypersensitivity Syndrome, a condition that is aggravated by electromagnetic radiation, according to a report by the Worcester Telegram & Gazette.
The boy was diagnosed after he frequently experienced headaches, nosebleeds, nausea, and other symptoms while sitting in class after the school installed a new, more powerful wireless Internet system in 2013, the suit says.
The family is seeking $250,000 in damages and wants the school to switch to Ethernet cable Internet or turn down the Wi-Fi signal, according to The Telegram.
Whether EHS is a real condition is debatable in the wider medical community; the World Health Organization, for instance, acknowledges the existence of EHS, but clarifies it “is not a medical diagnosis, nor is it clear that it represents a single medical problem.”
In a statement released Monday, the Fay School revealed that after hearing the family’s concerns regarding its Wi-Fi, it hired a company called Isotrope, LLC, which specializes in measurement and analysis of radio communication signals and evaluation of emissions safety compliance, to perform an analysis.
“Isotrope found that the combined levels of access point emissions, broadcast radio and television signals, and other RFE emissions on campus ‘were substantially less than one ten-thousandth (1/10,000th) of the applicable (FCC) safety limits,’” the statement said.
The family is conversely arguing that the school is in violation of the Americans with Disabilities Act, as well as its own handbook, which they say promises reasonable accommodations for students’ disabilities.
More Keys resorts hit with ADA lawsuits
Florida Keys Keynoter
A Boca Raton man who has filed countless federal lawsuits since 2013 alleging violations of the Americans with Disabilities Act at hotels is at it again.
Howard Cohan, who targeted a string of Florida Keys hotels, including the Westin Key West Resort and Marina and Banana Bay in Key West and Caloosa Cove Resort, Casa Morada and the Matecumbe Resort in Islamorada, earlier this year with the lawsuits filed at least nine new suits in July.
The latest list of properties targeted by Cohan for ADA compliance include the La Te Da Hotel on Duval Street, the Marquesa Hotel on Fleming Street and the Coral Lagoon Resort and Marina in Marathon.
Archdiocese sued in federal court
San Antonio Express-News
A Stone Oak couple sued the Archdiocese of San Antonio and one of its schools, Our Lady of Perpetual Help Catholic School, in federal court Tuesday, claiming it violated the Americans with Disabilities Act by failing to provide agreed-upon accommodations for the couple’s disabled preteen daughters.
According to the complaint, Mark and Lisa Mehlberger’s younger daughter was born prematurely and has a number of disabilities. Their older daughter has attention deficit hyperactivity disorder.
The girls were in a car accident in 2013, just three days after they enrolled at the school in Selma. The younger daughter had traumatic brain injury and developed post-traumatic stress disorder, while the older daughter suffered acute stress disorder, the lawsuit states.
The Mehlbergers and school staff agreed on an individualized educational plan for the younger daughter and certain accommodations for the older girl but the servicess were not provided last school year after Kirsch Wilberg took over as principal, the lawsuit states. The Mehlbergers are also suing Wilberg.
The Mehlbergers realized last August that the girls’ accommodations were not being met and the younger daughter was being punished for behaviors related to her disabilities, according to the suit. Lisa Mehlberger informed the school she would retain an educational advocate and came to campus to observe her younger daughter, where Wilberg threatened to have Lisa Mehlberger removed, the suit states. Three days later, the girls were expelled from the school, according to the suit.
10 Crucial Ways We Can Make Society More Inclusive for People With Disabilities
Huffington Post
The Americans with Disabilities Act celebrated its 25th year of coming into law last month, and while it has changed countless lives, it has become apparent that inclusion loopholes still exist.
The ADA was designed to have people with disabilities become viable and authentic citizens within the United States, but access to resources are still denied and the disability community continues to fight for basic civil rights.
On the outside it's easy to assume that because of the ADA, discrimination never occurs and full equality prevails for every person with a disability living in the United States. This wishful thinking is comparable to thinking that racism no longer exists because we have an African American president. Although the ADA made significant changes, it did not address everything a person with a disability faces on a daily basis. Just because a president signed a piece of legislation into law doesn't mean that a) it's fully enforced and b) it 100 percent changed our culture on how we view the disability community.
Disabled or able-bodied, we all have the power and responsibility to make society more inclusive for everyone. From lived experiences to listening to the disability community, here are 10 ways we can continue to make our world more accepting of people with disabilities.