60 Minutes Goes Prime Time with ADA Drive By Lawsuits
The National Law Review
In case you missed it, on December 4, 2016, the popular news program 60 Minutes aired a story on the alarming growing number of ADA drive-by lawsuits filed against businesses. A transcript of the story is provided here. Title III of the ADA requires places of public accommodation, such as restaurants, banks, movie theaters and just about any business that sells goods and services to the public, to make their premises accessible to disabled people through a comprehensive and detailed design code called the ADA Standards for Accessible Design.
The story, called “What is a Drive-By Lawsuit?,” reported on the staggering number of lawsuits filed under the ADA by disabled individuals who simply drive by a store, restaurant or some other place of public accommodation, spot accessibility issues, such as a handicap parking sign that is a bit too low or a ramp that is a bit too steep, and then sues the store without any warning whatsoever. The story also noted the growing prevalence of “Google” lawsuits, where accessibility issues such as a hotel not having a pool lift, can be observed by plaintiffs using Google Earth. While Title III does not permit a plaintiff to collect cash damages, the 60 Minutes story ends with a cautionary note. Observing that with many state laws providing for cash damages, and many businesses being technically out of compliance with the ADA, “it may not be long before you start hearing about these kinds of lawsuits in a town or city near you.”
Businesses should consider protecting themselves against these lawsuits by removing “red flags” from their premise. Red flags are readily visible accessibility issues such as un-ramped entrance steps (or no other visible means to enter the business with a wheelchair), poorly maintained routes from handicap parking spaces to the store’s entrance or handicap parking spaces with no access aisle.
Long-Term Shift of Essential Job Functions May Remove Them as Mandatory Qualifications
JD Supra
The Americans with Disabilities Act (ADA) only requires employers to provide accommodations that allow the disabled employee or applicant to perform the essential functions of the job. The employer is not required to shift or remove essential job functions whether or not such accommodation would be reasonable. However, a new, unpublished decision from the Sixth Circuit Court of Appeals warns employers that by voluntarily relieving an employee of the need to perform essential job functions, it may eventually lose its ability to later disqualify the employee from work due to inability to carry out those tasks.
In Camp v. Bi-Lo, LLC, the plaintiff worked as a grocery clerk for the defendant for 38 years. Due to childhood scoliosis, he could not lift more than 35 pounds. Over the years of his employment, he was relieved of such lifting, which was shifted to other employees. When a new manager assumed supervision of the plaintiff, he discovered this limitation, and referred him to corporate human resources for an evaluation of his ability to safely perform the job. Human resources concluded that the plaintiff could not perform the essential job functions due to the lifting restriction, basing its conclusion on a job description prepared 30 years after he began working for the company.
On appeal in a 2-1 decision, the Sixth Circuit reversed the lower court’s dismissal of the ADA claim, remanding the suit for trial on the question of whether lifting heavier weights is really an essential function of the position. The court concluded that the fact that the plaintiff had been relieved of such lifting duties for so many years created a factual question over whether the lifting requirement truly was an essential job function.
Employers frequently shift essential job functions with the intent of allowing an employee to transition back to work from an injury or illness. By definition, light duty jobs involve reassignment of essential job functions. However as illustrated by this decision, long term removal of such essential functions may eliminate the employer’s ability to later use the employee’s inability to perform them as grounds for ending employment. Any light duty program should be temporary in nature. When that time expires, light duty should end, and the decision to reinstate the employee should be based on whether he or she is capable of performing all essential functions of the job at that time, with or without reasonable accommodation.
New ADA Lawsuits Target Businesses
InsideCounsel
Nearly every business hosts a website, and most have applications for mobile devices, but they often overlook compliance with Title III of the ADA.
Gun Maker Must Reload in Worker's Disability Bias Case
Bloomberg BNA
Remington Arms Co. may have been on notice that an engineer with a bad back wanted a job accommodation when he said he needed to “mix it up” while performing tasks involving lifting, bending, standing and climbing, a federal appeals court ruled ( Cady v. Remington Arms Co. , 2016 BL 401578, 6th Cir., No. 16-5035, unpublished 12/2/16 ).
The Dec. 2 unpublished opinion addresses the sometimes cloudy issue of when a worker with a disability has provided his employer with enough information to trigger the duty under the Americans with Disabilities Act to engage the employee in an interactive dialogue to try to identify a work adjustment that will enable the employee to continue in his job. It’s an issue that can trip up employers, leading to lost worker productivity, legal claims and potential liability for money and other damages.
Training managers on how to recognize when an employee is requesting or may be implying a need for a reasonable accommodation is vital for employers. It should be coupled with training on the ADA’s restrictions on the types of medical inquiries that may be made of an employee, a pair of management attorneys and a training consultant recently told Bloomberg BNA.
Judge denies treasurer; jurors to hear bias claim
Arkansas Online
When a federal jury convenes Jan. 9 for a retrial of a defamation lawsuit against Jim Harris, chief of staff for state Treasurer Dennis Milligan, it will also hear a related disability discrimination claim against Milligan, a judge said Monday.
The first trial of a lawsuit brought against Harris and Milligan by a former treasurer's office employee, David Singer, ended Aug. 12 with Chief U.S. District Judge Brian Miller declaring a mistrial, after Harris was removed from the courtroom by paramedics.
The nature of Harris' ailment has never been publicly revealed, but one of Singer's attorneys, Luther Sutter, effectively argued for a mistrial, saying jurors who knew that Harris was carted out of the courtroom on a gurney might be overly sympathetic to him when deliberating.
As will be the case with a second jury, the first jury was to decide whether Harris defamed Singer by writing in an interoffice memo to the deputy chief of staff that Singer had "mental problems," and whether Milligan fired Singer because he believed, based on viewing the memo, that Singer suffered from a mental disability. Singer contends that Milligan violated the Americans with Disabilities Act, which prohibits terminating someone on the basis of a disability, real or perceived.
Anderson Cooper smears the disabled
Blasting News
Anderson Cooper's hit piece on disability rights reads like something off a conspiracy site
Is Your Website Accessible? Is It Required to Be?
JD Supra
By Christine Fuqua Gay
The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by public entities and places of public accommodation, including, but not limited to, restaurants, hotels and shopping centers. For many years, plaintiffs have sued places of public accommodation, claiming, for example, that a restaurant is inaccessible because it allegedly does not have the required number of wheelchair accessible parking spaces or entrance ramps. Now, some ADA plaintiffs' claims have moved away from restaurants' physical spaces and into the virtual space of restaurants' websites.
The ADA, which was signed into law on July 26, 1990, predates the internet as it exists today. As a result, the ADA itself does not expressly address whether websites are required to be accessible. Likewise, although they were recently updated by the Department of Justice (DOJ), federal regulations implementing the ADA do not specifically address website accessibility or provide any particular guidance regarding websites.
Claims related to website accessibility often center around screen readers. To navigate the internet, some visually impaired individuals use screen readers, which read aloud web content. When websites are not coded to interact with these screen readers, they do not work properly and, as a result, they simply say aloud "image" or "blank," rather than what actually appears on the computer screen. A visually impaired plaintiff can claim that a website that cannot be read by a screen reader is inaccessible, and as a result, the plaintiff is unable to buy a product, read a menu or obtain information about the business in the same manner as a sighted person.
Despite the lack of legally enforceable guidelines, website accessibility lawsuits and threats of lawsuits have become big business for the plaintiffs' bar. In 2015 and 2016 alone, close to 250 lawsuits have been filed in federal court, with the vast majority of those lawsuits filed in Florida, Pennsylvania, New York and California. For example, Miami resident Juan Carlos Gil, who is legally blind, has sued more than 30 businesses this year, claiming that their websites violate the ADA. To date, however, only one California state trial court has definitively ruled that a private company violated the ADA when its website was not accessible to a disabled individual. Davis v. BMI/BNB Travelware Co., CIVDS1504682, 2016 WL 2935482 (Cal. Super. San Bernadino Cnty. Mar. 21, 2016) (order granting plaintiff's summary judgment motion).
Notwithstanding the ADA's silence regarding websites, the DOJ has taken the position that the ADA applies to websites of public entities and places of public accommodations. Specifically, DOJ relies on the fact that discrimination includes not providing an "auxiliary aid or service," including "accessible electronic and information technology" that could assist an individual with disabilities, unless providing the aid or service would fundamentally alter the good or service provided, or result in an undue burden. Prior to the election, the DOJ indicated that it plans to issue a Notice of Proposed Rulemaking addressing website accessibility. It is unclear whether the inauguration of President-Elect Donald Trump will change these plans.
Despite the fact that there are no legally binding guidelines requiring websites of public accommodations to be accessible, plaintiffs and the DOJ have been pushing companies to develop accessible websites through settlement agreements after filing lawsuits or by conducting compliance reviews. Frequently, plaintiffs and the DOJ require businesses to follow the Web Content Accessibility Guidelines (WCAG), notwithstanding that the WCAG can be costly to implement. While the regulatory landscape remains unclear, it is expected that the number of lawsuits filed will continue to rise. As a result, businesses may want to review their websites to determine any parts that may be incompatible with a screen reader.
Alabama Prison System on Trial
Weld for Birmingham (blog)
On Monday, a U.S. District Court began hearing arguments in a lawsuit over the allegedly inadequate mental health care provided to inmates of the Alabama Department of Corrections.
The case is part of a larger suit, Braggs, et al. v. Jefferson Dunn, et al., which also contends that ADOC has failed to provide “constitutionally adequate medical care and failed to comply with the Americans with Disabilities Act. The suit was filed in 2014 by the Southern Poverty Law Center, the Alabama Disabilities Advocacy Program, the national law firm Baker Donelson, and the Birmingham law firm Zarzaur, Mujumdar, and Deborsse on behalf of over 40 inmates in the Alabama prison system.
In March 2016, the plaintiffs reached a settlement with ADOC in the matter of how state prisons comply with the Americans with Disabilities Act. ADOC agreed to take steps to provide ADA-compliant cells, ensure that individuals with disabilities could access programs, implement a better system to identify and track prisoners with disabilities, and create a grievance and appeals process for future ADA claims.