Hirschbach Motor Lines to Pay $40,000 and Cease Discriminatory Screening to Settle EEOC Suit
National trucking company Hirschbach Motor Lines, Inc. will pay $40,000 and furnish other significant relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
According to the EEOC's lawsuit, Hirschbach, headquartered in Dubuque, Iowa, violated the Americans with Disabilities Act (ADA) by using a pre-employment back assessment to screen out and reject job applicants it regarded as disabled for truck-driving positions. The back assessment tested, among other things, an applicant's ability to balance and stand on one leg, touch toes while standing on one leg, and crawl. The EEOC said that Hirschbach used the back assessment to screen out job candidates with pre-existing injuries and/or unrestricted medical conditions who had received conditional offers of employment.
The company did so even though the applicants had already received their Department of Transportation medical certifications that authorized them to drive a truck. In fact, many such applicants were quickly hired by other companies after their rejection by Hirschbach. The EEOC charged that this violated the ADA because the assessment was neither related to the job of driving a truck nor consistent with business necessity.
The lawsuit also charged that Hirschbach prohibited over-the-road truck drivers who have an injury or impairment from working until they are 100% free of restrictions and limitations, also in violation of the ADA.
The ADA prohibits employers from discriminating based on disability and explicitly prohibits employers from using qualification standards that screen out or tend to screen out applicants regarded as disabled, unless the standard is shown to be job-related for the position and consistent with business necessity. The ADA also imposes a requirement that employees with disabilities be provided a reasonable accommodation, absent undue hardship on the employer.
The EEOC filed its suit (Civil Action No. 2:18-cv-0017-GZS) in U.S. District Court for the District of Maine in Portland after first attempting to reach a pre-litigation settlement through its conciliation process. The original complainant and one of the other claimants are from Maine.
Hirschbach's settlement payment of $40,000 will be distributed among three individuals who were denied employment because of the back assessment and who participated in the EEOC's investigation and lawsuit.
As part of the settlement, Hirschbach is enjoined from using its prior back assessment and is limited to conducting a much narrower range of physical tests. Hirschbach also agreed that it no longer has a 100%-healed policy and will not have one in the future. Hirschbach also will adopt a reasonable accommodation policy, provide training on the policy and the ADA to supervisors, and report semi-annually to the EEOC on how the company has complied with the settlement.
"We are pleased that Hirschbach reached a timely resolution with the EEOC that provides both make-whole monetary relief and important equitable relief," said Regional Attorney Jeffrey Burstein of the EEOC's New York District Office. "The company's willingness to stop the screening practices at issue and consider reasonable accommodations shows a new commitment to ensuring that all individuals qualified for a job have an equal opportunity for hiring."
EEOC New York District Director Kevin Berry added, "The ADA prohibits arbitrary medical screens and onerous physical tests that prevent people from getting jobs for which they are qualified. The EEOC will continue to be vigilant in seeking to change such unlawful practices."
The EEOC's New York District Office oversees New York, Northern New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire and Maine.
Ninth Circuit Requires Proof of “But For” Causation for Claims Under Americans with Disabilities Act
On August 20, the Ninth Circuit Court of Appeals in a case entitled Murray v. Mayo Clinic, joined four other Circuit Courts of Appeal in holding that a “but for” causation standard applies in ADA discrimination claims. This standard is considered to make it more difficult for employees to prove discrimination claims than what had been applied previously and is referred to as “a motivating factor standard.” The court reasoned that this change was required to comport with two earlier United States Supreme Court rulings that had adopted a similar standard based on similar statutory language found in the federal law prohibiting age discrimination in employment.
Using this new standard, ADA discrimination plaintiffs bringing a claim under 42 U.S.C. § 12112, which bars discrimination “on the basis of disability,” must now show that the adverse employment action would not have occurred but for the disability discrimination. Under the former standard, a jury could have found an employer had violated the ADA even if the employer proved that it had a “mixed motive” for the adverse action, i.e., both legitimate and illegitimate reasons.
Philly’s sidewalks are so bad they violate federal law protecting people with disabilities, lawsuit contends
Philadelphia’s sidewalks are in such poor condition that they violate federal law that protects people with disabilities, a federal lawsuit filed Monday claims.
“Philadelphia’s failure to create and maintain accessible paths of travel has made it difficult — and, at times, impossible — for me to go to work, school, and church, and has prevented me from being able to fully experience life in Philadelphia with my family,” Liam Dougherty, one of the plaintiffs, said in a statement.
Florida Judge Sanctions Serial Ada Plaintiff Alexander Johnson And Attorney Scott Dinin
Seyfarth Synopsis: Serious sanctions imposed on a serial ADA Title III plaintiff and his attorney should concern the plaintiffs’ bar.
People often ask us why plaintiffs are filing hundreds of ADA Title III lawsuits when the law only allows for injunctive relief and attorneys’ fees and costs. In the case of prolific plaintiff Alexander Johnson, it was a nice cash supplement to his disability income, apparently. U.S. District Judge Paul Huck determined after a sanctions hearing that Attorney Scott Dinin had paid Johnson more than $84,500 over three years (2016-2018) for his participation in various ADA lawsuits. The court wrote in its 21-page Sanctions Order:
This case reveals an illicit joint enterprise between Plaintiff, Alexander Johnson, and his attorney, Scott R. Dinin of Scott R. Dinin P.A., to dishonestly line their pockets with attorneys’ fees from hapless defendants under the sanctimonious guise of serving the interests of the disabled community. Through this illicit joint enterprise, Johnson and Dinin filed numerous frivolous claims, knowingly misrepresented the billable time expended to litigate these claims, made numerous other misrepresentations to the Court, and improperly shared attorneys’ fees in violation of the Rules Regulating the Florida Bar, all done without regard to the interests of those with disabilities.
The Court based its findings on settlements from other ADA lawsuits, financial records, billing records, and even some email communications between Dinin and Johnson. The Court ordered the following sanctions:
- Disgorgement of all fees and costs obtained by Alexander and Dinin in all 26 gas pump cases they had filed, totaling $59,900;
- Payment of $59,900 by Dinin;
- 400 hours of community service by Johnson because he could not afford to pay the $59,900 penalty imposed by the Court;
- An indefinite prohibition against Dinin and Johnson from filing ADA complaints in any state or federal court without first obtaining the Court’s permission;
- A referral of Dinin to the Florida Bar for an investigation into his conduct relating to all of his ADA lawsuits;
- A requirement that Dinin file the Sanctions Order in every court in which he has filed a lawsuit in the past two years.
The Sanctions Order is an unexpected end to two of twenty-six cases brought by Johnson against gas station owners for allegedly showing TV programming on gas pumps that did not have closed captioning for the deaf. Defendants did not respond to the complaints and Johnson moved for the entry of a default judgment. At the hearing on the default motion, the Court decided to probe deeper into Dinan and Johnson’s Title III lawsuit filings which eventually led to the Sanctions Order.
Dinin was counsel for the plaintiff in the first website accessibility lawsuit to ever to go trial (Gil v. Winn Dixie). Winn Dixie’s appeal of the pro-plaintiff judgment in that case is awaiting a decision from the Eleventh Circuit, and it is unclear what impact, if any, the Sanctions Order will have on the award of fees and costs in that closely watched case.
The prohibition again future filings by Dinin and Alexander should reduce the number of ADA Title III lawsuits filed in Florida in the future. According to PACER, Dinin was counsel of record in over 251 federal lawsuits in 2018 and 177 in 2019. Johnson was a plaintiff in 50 cases in 2018 and 24 in 2019.
While the total number of ADA Title III lawsuits continues to climb, with no legislative or regulatory relief for businesses in sight, this Sanctions Order suggests that some judges have had enough and may be applying more scrutiny to ADA Title III claims. In the meantime, we will be watching to see whether Dinin or Johnson appeal the Sanctions Order.
Employers, Can You Fire An Employee In Rehab for An Opioid Addiction?
Employers, if an employee seeks leave to go to rehab, your refrain is more likely to be, “yes, yes, yes.”
Why?
If an employee seeks help to treat an addiction, said employee is likely protected by the Americans with Disabilities Act (“ADA”) or, for small employers (with less than 15 employees), a corresponding state human rights law.
One software company discovered this the hard way when it allegedly fired an employee for taking leave for inpatient treatment for substance abuse.
In a lawsuit filed in the U.S. District Court for the Eastern District of North Carolina, Western Division, the Equal Employment Opportunity Commission (“EEOC”) alleged that the company terminated an IT employee’s employment because he was “regarded as disabled.”
You can read the EEOC’s account of the settlement here.
In its complaint, the EEOC alleged that the employer regarded the worker as having a disability—and after he successfully completed leave to treat this addiction and reduce his need for physician-supervised medication-assisted treatment, he was questioned, and when he explained why he needed to go to rehab, he was fired.
The ADA protects employees from discrimination in the workplace on the basis of a physical or mental disability. A “disability” within the meaning of the ADA is a physical or mental health impairment that limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
The ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace, and the ADA does not protect current employees who use or those whose poor performance or substandard conduct is due to the current illegal use of drugs.
BUT, if an employee requests an accommodation to treat an opioid or alcohol addiction, employers, you know what to do, right?
Engage in the interactive process, and accommodate the employee to the extent that it does not constitute an undue burden on your workplace.
“Employees in recovery and actively participating in treatment should not fear losing their jobs,” according to the regional attorney of the EEOC’s Charlotte District Office.
The Settlement
Money.
Precisely, the company agreed to pay $80K to settle this disability discrimination lawsuit.
What else?
The EEOC and company entered into a three-year consent decree settling the lawsuit, the company agreed to revise, implement, and distribute personnel policies stating that it does not exclude employees based on their participation in a medication-assisted treatment program, agreed to provide annual training to its HR team, managers, supervisors, and employees, agreed to post a notice regarding the settlement, and agreed to report to the EEOC all negative actions the company takes against employees who have a record of substance abuse disorder or who are currently participating in or have successfully completed a drug rehabilitation program.
It’s…a lot.
Employer Takeaways
Someone who currently uses drugs is not considered disabled under the ADA. However, someone who is in recovery would have a record of having an impairment and can be “perceived as” having a disability.
Failure to accommodate an employee’s disability not only could cost you, but it tends to discourage employees from coming forward to ask for a reasonable accommodation.
No one is immune from developing an addiction. The ADA requires employers to accommodate employees who are brave enough to seek help.
Does Your Business Have a Legal Obligation to Accept Customers with Emotional Support (Comfort) Animals?
Recent news coverage of Delta and United’s efforts to balance passenger and crew safety with accommodation of service and emotional support animals has added to the confusion regarding a businesses’ legal obligation to admit customers with emotional support – or comfort – animals.
There is an important legal distinction between a service animal and a comfort animal.
Service Animals
Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. The work or task a dog has been trained to provide must be directly related to the person’s disability. = A dog, whose sole function is to provide comfort or emotional support, does not qualify as a service animal under the Americans with Disabilities Act (“ADA”).
In addition to the provision for service dogs, the revised ADA regulations have a separate provision addressing miniature horses that have been individually trained to do work or perform tasks for people with disabilities. Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. The regulations set out four assessment factors to assist covered entities in determining whether miniature horses can be accommodated in their facility. The assessment factors are:
(1) Whether the miniature horse is housebroken;
(2) Whether the miniature horse is under the owner’s control;
(3) Whether the facility can accommodate the miniature horse’s type, size, and weight; and
(4) Whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility.
Emotional Support or Comfort Animals
While a service animal is limited to dogs, and in limited instances miniature horses, an emotional support or comfort animal is virtually any animal that qualifies as an “assistance animal”; a broader term recognized as a reasonable accommodation for a person with a disability under the Fair Housing Act.[i] In addition to dogs, the definition of an emotional support animal may apply to cats, birds, guinea pigs, lizards and other non-traditional assistance animals.
Whether your business is required to admit a customer with an emotional support animal is dependent upon whether your business is a covered entity under the ADA or is housing covered by the Fair Housing Act.
The ADA
Under the ADA, businesses (both for-profit and non-profit) that are “public accommodations”; one of the twelve categories of businesses that serve the public,[ii] must allow service animals to accompany people with disabilities in all areas of the business where the public is normally allowed to go. A service animal must be harnessed, leashed or tethered and under the control of the customer. 42 U.S.C. § 12182.
In situations where it is not obvious that the dog is a service animal, staff may ask only two specific questions:
(1) Is the dog a service animal required because of a disability?, and
(2) what work or task has the dog been trained to perform?
A business may not request any documentation, require the dog to demonstrate its task or inquire about the nature of the customer’s disability.
The ADA limits assistance animals to a service dog (or miniature horse) and does not require a public accommodation to accept an emotional support or comfort animal. So, any animal that is not a dog (or miniature horse) can categorically be excluded. If your customer has a dog that is presented as a service animal the best inquiry is: “What work or task has the dog been trained to perform?” If the answer is that the animal provides emotional support or comfort, the dog does not qualify as a service dog, and the animal may be excluded from your business.[iii]
The Fair Housing Act
The Fair Housing Act,[iv] 42 U.S.C. § 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords, real estate companies and lenders.
Unlike the ADA’s definition of service animal, the FHA employs the broader term “assistance animal” which includes not only service animals (dogs) but emotional support or comfort animals. An assistance animal is not a pet. Therefore, a business that is subject to the FHA (typically a housing provider) may only ask two questions when considering whether an assistance animal is a reasonable accommodation:
(1) Does the person seeking to use and live with the animal have a disability – i.e., a physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?[v]
According to Department of Housing and Urban Development (“HUD”) regulations, a “no” answer to either of these two (2) questions means that a housing provider is not obligated to make a reasonable accommodation. This may mean that the person does not meet the definition of disability or that the assistance animal does not help with symptoms of the disability.
If the answer is “yes” to both, then HUD regulations and the FHA requires an exception to a “no pets” rule.
The FHA does not regulate public accommodations such as restaurants and retails stores. If your business is a public accommodation; but does not provide housing pursuant to the FHA – absent a local or state law, you are not legally obligated to admit emotional support or comfort animals that accompany customers; only service animals.
The proliferation of websites offering quick and inexpensive paperwork to “certify” an emotional support animal has been an ongoing concern with housing providers that is now presenting issues with retailers, restaurants, hotels and other public accommodations. Staff training and knowledge of the applicable laws and regulations is fundamental to avoid on site issues with customers and to foster a balance between customers and staff and, avoid disruptions in business operations.