Scottsdale Car Dealership Sued by EEOC for Disability Discrimination
According to EEOC's lawsuit, Bell-Arrow Automotive, Inc. (doing business as Bell Lexus), a subsidiary of Bell Leasing, Inc. (doing business as The Berge Group), maintained a policy of refusing to employ any applicant who tested positive for one of several enumerated substances on a list identified by Bell Lexus and the Berge Group. Bell Lexus extended a job offer to Sara Thorholm to work as product specialist or a salesperson, but rescinded it when her drug test returned positive for a single substance. Thorholm explained to Bell Lexus that the substance was legally prescribed to treat a disability and would not affect her ability to perform the duties of the job. Bell Lexus refused both Thorholm's offer of proof and her offer to change medications.
Such alleged conduct violates Americans with Disabilities Act, which prohibits employers from making employment decisions based on an individual's disability or need for reasonable accommodation, and to make such accommodations absent undue hardship. EEOC filed suit in U.S. District Court for the District of Arizona (EEOC v. Bell Leasing, Inc., Civil Action No. 2:16-cv-02848-DKD) after first attempting to reach a pre-litigation settlement through its conciliation process. The lawsuit seeks monetary damages, including back pay, compensation for emotional distress, and punitive damages. EEOC also seeks injunctive relief, including training on the ADA, and other relief to prevent further discriminatory practices.
"Even when drug tests are permitted under the ADA, they cannot be used to discriminate against qualified people with disabilities," said EEOC Phoenix Regional Attorney Mary Jo O'Neill. "Companies need to be mindful that they may need to make exceptions to drug use policies as a reasonable accommodation."
EEOC Phoenix Acting District Director Elizabeth Cadle added, "Employers must maintain responsible hiring practices and be understanding about their employees' backgrounds. A blanket exclusion policy based on drug use does not accomplish that goal, and may cause problems for the employer if it applies such a policy."
DOJ expands 'disability' definition with new final rule updating ADA
Lexology
The Department of Justice recently released its final rule extending coverage of the ADA Amendments Act (ADAAA) to Titles II and III of the Americans with Disabilities Act. This final rule, which takes effect Oct. 11, 2016, updates those titles to include the ADAAA.
Title II covers local and state governmental entities, and Title III covers places of public accommodations, including many types of private businesses that are open to the public and commercial facilities.
President George W. Bush signed the ADAAA into law effective Jan. 1, 2009, and authorized the attorney general to issue regulations under Titles II and III of the ADA. The ADAAA applies to Titles I, II and III, and this final rule takes into account Executive Order 13563 (which called for coordinated rules and regulatory requirements across agencies) in its attempt to coordinate with the Equal Employment Opportunity Commission’s regulations incorporating the ADAAA in 2011.
Signed into law in 2008, the ADAAA expanded the ADA’s coverage by redefining several key terms in the statute. In particular, that included what constitutes a “disability” for purposes of the statute’s coverage. The ADAAA overruled several Supreme Court decisions that narrowed the definition of “disability.”
Pursuant to the ADAAA, an individual’s disability under the ADA should not require deep inquiry, and covered entities should focus more on their responsibility to not discriminate against an individual based on disability rather than determining whether the person is disabled. In addition, the final rule expands the definition of “major life activity” and more fully expounds upon the term “substantially limits,” both of which are key factors in determining whether an individual is disabled.
With the implementation of the final rule, these expanded definitions apply to state and local governmental entities, as well as private businesses that qualify as places of public accommodation. Covered entities should be aware of these changes and continue to focus on fostering an inclusive environment to ensure individuals are treated fairly regardless of circumstance.
NH Legal Perspective: Leave as a reasonable accommodation gets clarified
The Union Leader
Recently, the U.S. Equal Employment Opportunity Commission (EEOC) issued a helpful resource document about employer-provided leave as a reasonable accommodation under the Americans with Disabilities Act ("ADA"). To put this in context, an employer covered by the ADA must not discriminate against a qualified individual on the basis of disability. For ADA purposes, a qualified individual is a person who "with or without reasonable accommodation" can perform the essential functions of the job. If a qualified individual needs reasonable accommodation to perform the job, the employer's failure to provide it is a form of discrimination under the ADA, unless the employer can demonstrate that the accommodation would pose an undue hardship. Not surprisingly, all of these concepts are defined by the ADA and corresponding regulations. The ADA envisions that the employer and the employee should engage in an individualized and interactive process when an employee is in need of a reasonable accommodation. A reasonable accommodation for employees can take on many forms, including a modification or adjustment to the work environment. What many employers miss, as they try to enforce leave and attendance policies, is that an unpaid leave of absence (or an extension of leave) may in itself be a reasonable accommodation.
Labor Law: Permanent light duty not a required accommodation
Richmond.com
Employers are frequently faced with the situation of whether to allow light duty and, if permitted, how long to allow the light-duty arrangement to last.
The U.S. Court of Appeals for the 11th Circuit recently rendered an important decision regarding how long employers must permit an employee to remain on light duty, holding that light duty for an individual who suffers from a disability need not be permanent.
Austin Park N Pizza pays $20000 to settle disability suit
Business Management Daily
Last year, the EEOC sued Austin’s Park N Pizza amusement park, alleging it failed to accommodate a disabled employee. Now the park has settled the dispute for $20,000 and significant injunctive relief.
For four years an employee with developmental disabilities that resulted from traumatic brain injury had performed custodial tasks for the park. But when new management took over, it decided the man could not perform his job because he could not operate an electronic time clock. The company apparently failed to explore any reasonable accommodations, stopped paying the man and sent him an email explaining that he had been fired.
He filed an EEOC complaint alleging the employer violated the ADA when it fired him. EEOC attempts to resolve the dispute through its conciliation process failed.
The EEOC filed suit against Park N Pizza in federal court in 2015. Rather than explain its actions to a jury, the employer elected to settle.
In addition to paying the former employee, the park agreed to a consent decree under which it will train all management about employee rights under the ADA. Additionally, it will change its policies and practices to conform with the law and report any disability complaints directly to the EEOC.
Note: Make it a point to make new management aware of disabled employees’ histories. Firing an experienced employee without exploring reasonable accommodations practically guarantees a loss in court.
ADA bias claim upended by Kentucky law's definition of 'disability'
HR.BLR.com
It's no secret that employment lawyers avoid suing Kentucky employers in federal court because of the "employee-friendly" dismissal standard in state court. Employees assert discrimination claims under the (KCRA) rather than federal law in an attempt to avoid federal court. However, that strategy comes with a price in disability discrimination claims. A Kentucky court recently ruled that the KCRA contains a narrower definition of "disability" than the federal Americans with Disabilities Act (ADA).
Accommodating Mental Illness In The Workplace
North American Press Syndicate
For people with mental illness, getting and keeping a job can present some unique challenges. Unlike physical disabilities that can be seen and recognized, employers may not realize that a person is experiencing mental health issues or may not understand behaviors as stemming from an illness. They may also not know they have to provide workplace accommodations to help mentally ill people who require adjustments to remain employed and productive.
Not every person experiencing mental illness will have difficulty at work, but some will. "Hidden" disabilities such as depression, post-traumatic stress disorder (PTSD), schizophrenia, obsessive-compulsive disorder, traumatic brain injury, and intellectual and learning disabilities (e.g., attention deficit disorder and attention deficit/hyperactivity disorder) can affect a person's ability to perform a job.
Also, shifts in mental health can trigger and recede without warning. When someone experiences a mental health issue, it can be difficult to focus, process, think clearly, remember details, organize thoughts and tasks, and stop and start activities.
For these individuals, Title I of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) requires employers to make "reasonable accommodations" to help people with mental health disorders do their jobs. The ADAAA does not list medical conditions that are disabilities, but rather gives a general definition of disability. A doctor may be required to validate the need for accommodation.
"Employers don't always know what a person is living with," says Beth Loy, Ph.D., who is a principal consultant with the Department of Labor's Job Accommodation Network (JAN). "There may be limitations due to medication, or a flexible schedule might be needed for a person to go to therapy appointments."
The JAN is a comprehensive resource for people who want to understand their rights regarding disabilities and possible accommodations. Individuals can access information on JAN's website or reach out to it directly with questions.
Therapy or segregation? A look at Coastal Academy in the wake of lawsuit against state program
Brunswick News
The future of Glynn County’s Coastal Academy has come into question since the United States Department of Justice filed a lawsuit claiming the state-run program that funds the school is violating the civil rights of students.
Local school officials, however, said the program provides Glynn County students who have behavioral and emotional disabilities with the services they need to be successful in a normal education environment.
The DOJ filed a lawsuit on Tuesday against the state for operating a program that allegedly provides thousands of Georgia students with unequal educational opportunities.
Advocacy Group Fires Back After Attorney General Steps Into ADA Lawsuit Controversy
KJZZ
A local advocacy group responsible for more than a thousand lawsuits against Phoenix businesses says Attorney General Mark Brnovich is on "the wrong side of history."
That comes after Brnovich's office filed a motion to intervene in the cases brought by the group Advocates for Individuals with Disabilities (AID), asking the cased be dismissed.
In court documents, the state alleges AID is abusing the judicial system and engaging in trolling tactics meant to coerce defendants to settle quickly for money.
“It is now political. The attorney general has to take a side," AID's attorney Peter Strojnik told KJZZ. “I believe he has decided to side with the law-breaking defendants, that is despicable.”
The attorney general's opinion argues AID is circumventing the proper channels for handling ADA enforcement. Strojnik says the state has done little to ensure businesses follow the law and private ligation is critical for enforcement.
"They haven't been able to do anything in the past 20 years while we have been very effective at enforcing the ADA law," Strojnik said.