Statement of Interest: Winn Dixie Stores, Inc. | PDF
EEOC Issues Publication on the Rights of Job Applicants and Employees With Mental Health Conditions
The U.S. Equal Employment Opportunity Commission (EEOC) today issued a resource document that explains workplace rights for individuals with mental health conditions under the Americans With Disabilities Act of 1990 (ADA).
Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights explains that job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. They may also have a right to reasonable accommodations at work. Reasonable accommodations are work adjustments that can help individuals to perform their jobs and remain employed. The resource document also answers questions about how to get an accommodation, some types of accommodations, restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.
Wal-Mart to Pay $75,000 to Settle EEOC Disability Lawsuit
Wal-Mart Stores Inc. will pay a former employee $75,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
EEOC's lawsuit charged Wal-Mart with violating federal discrimination law when the giant retailer failed to accommodate Nancy Stack, a cancer survivor with physical limitations, and subjected her to harassment based on her disability. Stack worked at a Walmart store in Hodgkins, Ill.
As a workplace accommodation, Stack needed a chair and a modified schedule. EEOC alleged that while the store provided Stack with a modified schedule for a period of time, it revoked the accommodation for no stated reason. Further, according to EEOC, the store did not ensure that a chair was in Stack's work area, telling her that she had to haul a chair from the furniture department to her work area, a task that was difficult, given her disability. Making matters even worse, EEOC alleged that a co-worker harassed Stack by calling her "cripple" and "chemo brain."
Lexology
We previously reported that the California Court of Appeal for the Second Appellate District held that an employer’s denial of accommodation to a nondisabled employee may serve as evidence of association discrimination under the California Fair Employment and Housing Act. Castro Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal. App. 5th 1028. In Castro Ramirez, the employee alleged that he was terminated from employment after he made complaints about changes to his work schedule which impacted his ability to be at home during his disabled son’s dialysis treatments. On the surface, this seemed like a claim for reasonable accommodation (i.e., a modified work schedule) by a non-disabled employee and we all know that only disabled folks are entitled to receive reasonable accommodations. Easy decision, right? Wrong.
The Court of Appeal held that the California Fair Employment and Housing Act (FEHA) makes it unlawful to discharge a person based on physical disabilities or other characteristics, including the association with a person who has or is perceived to have any of those characteristics. Again, by itself, this holding is not controversial because the ADA contains a similar provision prohibiting discrimination on the basis of an association or relationship with a person with a disability. What made Castro Ramirez different, and what continues to concern California employers, is that employers must provide reasonable accommodations to individuals who do not, by ADA terms, have a disability. As one dissenting judge observed, the Court has gone “where no one has gone before, to find a California employer may be liable under FEHA for failing to accommodate a nondisabled employee’s request to modify his work schedule to permit him to care for a disabled family member.”
On November 30, 2016, the California Supreme Court denied Dependable Highway Express’ petition for review, effectively putting an end to the case. Because of the denial and because the case has not been depublished, all California trial courts now are bound by this authority unless and until there is a conflicting Court of Appeal published decision. California employers should review policies and practices in responding to all disability accommodation requests, even those of non-disabled employees associated with others in protected categories. At a minimum, employers must have a legitimate, non-discriminatory reason for denying the accommodation. However, given the mischief caused by Castro-Ramirez, it appears employers may need to consider expanding the scope of employees potentially entitled to reasonable accommodations under FEHA. With leave management already a major Human Resources challenge, employers must closely review this decision.
Federal judge finds no ADA violation in Sheriff's Office hiring decision
Richmond Free Press
A federal judge has found that Richmond Sheriff C.T. Woody Jr. did not violate the Americans with Disabilities Act when he declined to reassign a disabled deputy to a vacant payroll position and instead hired someone else to fill the job.
Rebuffing claims from the U.S. Justice Department, Judge Robert E. Payne dismissed the government’s March lawsuit against Sheriff Woody for his treatment of former Deputy Emily Hall, who served in the Richmond Sheriff’s Department for 10 years until a heart condition prevented her from continuing her deputy duties.
Disabled Workers Must Compete for Job Reassignments
Bloomberg BNA
Businesses don’t have to reassign their disabled workers into open positions ahead of more qualified, nondisabled employees, a federal appeals court in Atlanta ruled ( EEOC v. St. Joseph’s Hosp. , 2016 BL 406826, 11th Cir., No. 15-14551, 12/7/16 ).
The decision is important because the U.S. Court of Appeals for the Eleventh Circuit rejected a position championed by the federal agency tasked with enforcing federal job rights laws that disabled workers are generally entitled to reassignment free from competition.
The Equal Employment Opportunity Commission “has been pressing this issue forever,” Rae T. Vann of NT Lakis LLP told Bloomberg BNA Dec. 7. She said a contrary ruling by the Eleventh Circuit would have undercut the notion that an employer’s business judgment is entitled to deference under the Americans with Disabilities Act, including with regard to operational efficiency and employee performance.
The Washington-based management firm represented employer advocate the Equal Employment Advisory Council as an amicus in the case.
The Eleventh Circuit also rejected the EEOC’s argument that the other federal appeals courts are divided on the question.
Rather, the Eighth Circuit similarly held in 2007 that the ADA isn’t an affirmative action law and that employers aren’t required to turn away superior job candidates in favor of disabled workers seeking reassignment as a work accommodation, visiting Judge C. Huck said for the Eleventh Circuit. The Fifth Circuit’s view is consistent with the Eighth Circuit’s ruling, Huck added.
Contrary to the EEOC’s argument, the Seventh Circuit didn’t actually decide the question in a 2012 ruling, nor did the Tenth Circuit in 1999, Huck found. The District of Columbia Circuit discussed the issue in a 1998 decision but only in nonbinding dictum, Huck said.
Is Santa Disabled? Obesity, ADAAA, and Most Famous Driver Of All
The National Law Review
The most famous reindeer of all may be Rudolph, but St. Nick has the lock on being the most famous driver in the entire transportation industry. And with such an incredible safety record and history of on-time deliveries, would we ever think of Santa as being disabled under the Americans with Disabilities Act Amendments Act (ADAAA)? It depends on who you ask. If you ask the EEOC, the answer would be of course. However, most federal courts that have considered the issue have concluded that obesity is not a disability under the ADAAA unless it is caused by an underlying physiological disorder. Thankfully, these courts have refused to accept the EEOC’s interpretive guidance which suggests that physical characteristics such as eye-color, height, and weight that are outside the “normal” range can be considered physical impairments regardless of whether they are caused by a physiological disorder. To accept that notion would indeed mean that Santa is disabled.
While considering whether Santa is disabled is big holiday fun, the transportation industry faces serious challenges in trying to decide how best to handle the growing problem of DOT covered drivers who suffer from obstructive sleep apnea (OSA). While obesity that is not the result of an underlying physiological cause is arguably not a disability, in August of this year, the Federal Motor Carrier Safety Administration’s advisory Medical Review Board recommended that any driver with a BMI of 40 alone, or 33 – 39 plus three other risk factors, be required to undergo a diagnostic sleep evaluation to determine if the driver suffers from OSA. According to the FMCSA, drivers who have OSA may not be able to safely operate a commercial motor vehicle. The FMCSA explains it this way.
Staffing Agency Client May Be Liable for Not Hiring Deaf Temps
Bloomberg BNA
A mobile phone repair and testing facility in Texas must face trial on claims by the EEOC that the company illegally failed to hire or accommodate two deaf applicants for temporary work referred by a staffing agency, a federal judge ruled ( EEOC v. S&B Indus., Inc. , 2016 BL 408238, N.D. Tex., No. 3:15-CV-0641-D, 12/8/16 ).
The decision is one step toward a potential victory for the Equal Employment Opportunity Commission in its continuing crackdown on businesses it believes hire temporary workers through staffing agencies to evade federal employment discrimination laws. The agency reaffirmed its commitment to holding companies that do so accountable when it added to its five-year strategic enforcement priorities emerging issues relating to “complex employment relationships.”
The U.S. District Court of the Northern District of Texas found Dec. 8 that S&B Industry Inc., doing business as Fox Conn S&B, may have been the prospective “employer” of the rejected job applicants under the Americans with Disabilities Act, or at least their prospective “joint employer” with the staffing agency. A jury could find that S&B had control over the employment relationship it formed with temporary workers. That’s because S&B employees directly supervised workers on its production floors, the company issued specific instructions to temporary workers and it had the right to end the workers’ temporary assignments, the court said.
Justice Dept. finds Philly police discriminate against deaf
Allentown Morning Call
A U.S. Department of Justice review has found that the Philadelphia Police Department has discriminated against people who were deaf or hearing-impaired.
Philadelphia police handcuffed deaf people behind their back, thus making them unable to communicate with sign language, the department wrote in a Dec. 7 letter to the department.
Attorney general files motion to dismiss 1000 ADA lawsuits
East Valley Tribune
The Arizona Attorney General’s Office has filed a 20-page motion to dismiss more than 1,000 civil lawsuits filed by a foundation that accuses East Valley businesses of widespread violations of the federal Americans with Disabilities Act and a similar state law.
The controversial suits were filed against many East Valley businesses, particularly in Mesa, and allege mostly technical violations of the ADA, including that handicapped parking signs are too low or that international handicapped symbols are not displayed.
The motion reprises similar pleadings by the Attorney General’s Office, which prompted a Maricopa County Superior Court judge to consolidate more than 1,000 suits into one test case to get them dismissed.
Flake Sponsoring Legislation To Tackle ADA Abuse
KJZZ
Sen. Jeff Flake of Arizona is sponsoring a piece of legislation to stop so-called “drive-by” lawsuits. These lawsuits are filed by lawyers abusing the Americans with Disabilities Act.
The ADA Education and Reform Act is intended to help people being used to extort cash settlements from small businesses for minor violations that could be easily fixed.
Flake said there still needs to be restrictions to avoid disenfranchisement of those with disabilities but also prevent unnecessary lawsuits for business owners.
“It’s essential that business owners continue to see it as a tool to ensure fairness for people with disabilities, and not as weapon to line the pockets of unscrupulous lawyers,” he said.
Flake said Arizona has seen a dramatic increase in these lawsuits in the last three years. In 2013, there were three ADA Title III lawsuits brought in Arizona. However, as of September of this year, Arizona has already seen 284.
The bill would afford small businesses 120 days to fix minor violations, such as an incorrectly placed sign, before a lawsuit can proceed.
Think Your ATMs Are ADA A-OK? Think Again
Credit Union Journal
Every year, numerous financial institutions are hit with Americans with Disabilities Act (ADA) lawsuits which can cost $55K just for the first violation. Even if a financial institution does everything right they can still have a lawsuit filed against them — especially if a scam artist damages their ATM so as to prevent it from meeting compliance standards. With so much at stake, financial institutions need professional help.
Chris Palamountain of Seyfarth Shaw LLP, an attorney with experience in ADA compliance, recently shared her roadmap for avoiding ADA violations and defending against fraudulent ones. She said the first step is to assess current ADA violation risk. This means checking physical and digital assets against everything required in either the 1991 Standards or 2010 ADA Accessibility Standards (depending on whether your current building is grandfathered in). Just a few of the items to check include making sure:
- ATMs meet the 15- to 48-inch reach requirements
- Parking spaces are wide enough
- Entrance ramps have the correct slope
- Websites have disability access
DOJ won't pursue further action on ADA complaint concerning palm trees
KRIS Corpus Christi News
The federal government will not sue the city over palm trees lining a section of Airline Road. The Department of Justice has closed its case on a complaint local activist Jack Gordy filed nearly two years ago, alleging the city was violating the Americans with Disabilities Act.
Uber's New Autonomous Fleets Could Change How People With Disabilities Travel
Futurism
- The Americans with Disabilities Act promotes accessibility to the 31 million people with mobility-related disabilities.
- Based on the Act, Uber's new autonomous fleet would be required to incorporate accessibility into their vehicles, benefiting both people with disabilities and the elderly.
Justice Department to investigate Hampton Roads Regional Jail
Daily Press
The Justice Department will be investigating the conditions at the Hampton Roads Regional Jail in Portsmouth, according to a news release from the Department of Justice.
The announcement was made today, and the investigation will look into inmates' access to medical and mental health care, seclusion of people with mental illness for prolonged time periods and whether the jail withholds access to "services, programs and activities because of their disability," the release said.