Eighth Circuit: Failure to Accommodate, in and of Itself, Violates ADA
The National Law Review
Despite the lack of a clear causal connection between an employer’s failure to grant an employee’s request for additional training and its decision to terminate her employment, an Arkansas federal district court recently denied the employer’s summary judgment motion on the plaintiff’s failure to accommodate claim under the Americans with Disabilities Act. In denying summary judgment, the Court held that, “a failure to accommodate is, in and of itself, a form of discrimination under the ADA.” Orr v. City of Rogers (W.D. Ark. Feb. 3, 2017).
In Orr, Plaintiff requested additional training after initially undergoing certain medical procedures. According to the plaintiff, the employer offered her only “generic trainings,” as opposed to training on software and protocol changes that occurred while she was out on leave. The employer subsequently terminated the plaintiff’s employment following seven work infractions during a two-month period. After finding the employer had legitimate, non-discriminatory reasons for terminating Plaintiff’s employment, the Court examined whether the failure to accommodate claim survives the dismissal motion. The District Court recognized that courts disagree on whether a plaintiff must show an adverse employment action to have an actionable failure to accommodate claim, and observed that the Eight Circuit has held a failure to accommodate can be an adverse employment action. The district court ultimately held that the plaintiff need not show her employer’s failure to accommodate her training request resulted in her termination. Thus, the plaintiff could “seek damages for the failure to accommodate itself,” even if only nominal damages. Because the employer did not explain why it failed to accommodate the plaintiff’s request and questions of material fact existed regarding whether the employer engaged in the interactive process, the plaintiff’s failure to accommodate claim survived summary judgment.
This decision serves as a reminder to employers of the importance of engaging in the interactive process with employees seeking an accommodation. Documenting the steps the company takes to engage in the process can go a long way to defending a failure to accommodate claim.
Lexology
Under the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), colleges and universities have a general duty to provide reasonable accommodations to employees and students with a qualifying disability. Unlike in the K-12 setting where schools are required to affirmatively address a student’s potential need for accommodations, in higher education, the ADA and Section 504 generally require a student to self-identify his or her disability, request accommodations, and then participate in an interactive process with the institution to determine whether and to what extent accommodations will be provided.
JD Supra
Complying with the Americans with Disabilities Act is not an easy task. Even if an employer does the document dance correctly, determining whether an accommodation is reasonable can be a tough call. Reasonable people can differ, after all.
This is especially true when an employee is seeking accommodation for a mental health condition. These conditions are often under-diagnosed or untreated. Symptoms can present themselves as different behaviors that don't seem to be consistent; they can even disappear for days at a time while the underlying condition remains. They also carry social stigmas and are often unfairly stereotyped. In short, mental health conditions can be nightmares for those who experience them, and the managers and HR professionals who try to accommodate them.
Florida lawmaker files bill to curb ADA lawsuit abuse
Fox 4
They call themselves advocates for the disabled but serial ADA lawsuit filers have now inspired a Florida lawmaker to take action. Florida Representative Tom Leek (R- Daytona Beach) recently filed a bill that gives businesses the opportunity to fight ADA lawsuits become they're served with papers.
Let's Talk: The Interactive Process Between Employer and Employee
JD Supra
An employer who is asked for a job accommodation by an employee with a disability is required to take part in what is called the interactive process under both the federal Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD).
So, what is an interactive process? Plain and simple, the interactive process is when the employer and employee communicate with each other to try to figure out how the employee can perform his or her job successfully when a disability is making it hard to do so.
How does an employer know when the interactive process begins? Generally, the employee has a duty to tell the employer that he or she is having problems performing his or her work duties as a result of a disability. At times, a disability may be so obvious that the employer can see that the employee is having problems performing his or her work duties, and in that case, the employer may commence communications toward an accommodation.
JD Supra
Employers can easily feel overwhelmed when it comes to enforcing employee attendance standards while providing reasonable accommodation to employees with chronic health conditions. Increasingly, however, court decisions such as Williams v. AT&T Mobility Services LLC are providing much-needed guidance regarding the scope of an employer’s duty to accommodate. The Williams case illustrates how carefully-designed policies, frequent communication, and a generous sprinkling of patience form key ingredients in the recipe for avoiding liability under the Americans with Disabilities Act (ADA).
JD Supra
The interplay between the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”) is an area of confusion for most employers. This confusion is understandable as both statutes serve distinct purposes but require a covered employer to grant medical leave to employees in certain circumstances. Employees may require a leave of absence for a myriad of reasons and in many scenarios the employer’s obligations differ greatly in each situation. The Third Circuit Court of Appeals recently decided a case that makes navigating the FMLA/ADA waters a bit trickier. In Capps v. Mondelez Global, LLC, No. 15-3839, 2017 U.S. App. LEXIS 1593 (Jan. 30, 2017), the Court held that under certain circumstances a request for FMLA may also qualify as a request for a reasonable accommodation under the ADA.
Blind trustee files suit against Cotati-Rohnert Park school district
Santa Rosa Press Democrat
A blind school board trustee is suing the Cotati-Rohnert Park school district for allegedly refusing to allow a special aide to assist him at meetings.
In the suit, Tim Nonn, who was elected to the school board in November, argued the district violated state and federal disability discrimination laws when it barred Janet Lowery, a retired special education teacher who volunteers as his reader and scribe, from sitting next to him at school board meetings.
The lawsuit was filed late Wednesday in U.S. District Court in San Francisco.
Woman alleges Smoothie King Franchises terminated her because disability
The Louisiana Record
A Jefferson Parish has filed a suit against her former employer seeking reinstatement to her position. She alleges she was wrongfully terminated because of her disability.
Kim H. Hennig filed a complaint on Feb. 6 in the U.S. District Court for the Eastern District of Louisiana against Smoothie King Franchises Inc. alleging that the former employer violated Title VII of the Civil Rights Act and the Americans with Disabilities Act.
According to the complaint, the plaintiff was diagnosed with Parkinson's disease in 2002 and takes medication to counteract short-term memory loss. The plaintiff alleges that in May 27, 2015, very shortly after she launched defendant's new product and one month prior to her second quarterly bonus, she was terminated from her employment. She alleges she has suffered a loss of pay, benefits, and prestige, mental and emotional distress. The plaintiff holds Smoothie King Franchises Inc. responsible because the defendant allegedly failed to provide reasonable accommodations, subjected her to discrimination and disparate treatment and terminated her because of her disability and sex.
The plaintiff requests a trial by jury and seeks compensatory and punitive damages, reinstatement, front pay, attorneys’ fees and costs and all other relief as the court deems just and proper. She is represented by Robert E. Couhig III and Claire E. Pontier of Couhig Partners LLC in New Orleans and William J. Kelly III of Kelly & Walker LLC in Denver, Colorado.
U.S. District Court for the Eastern District of Louisiana Case number 2:17-cv-01053
An armless man couldn't carry his bike up the stairs. He says it cost him his job.
Virginian-Pilot
Michael Trimble's astonishment oozed from the legal jargon of the court documents he filed last week.
His employers had just told him he was being fired because he refused to comply with simple requests about his bike. It would be nice, the Gresham, Oregon, man said, if he could carry it up a back flight of stairs to avoid coming through the lobby of the building or speeding through a landscaped pavilion out front. When he balked, they asked if he could simply push the bike across the pavilion, he said.
If he couldn't comply with these minor requests, his employer asked, according to the documents, how could he be trusted to deal with the more complicated requirements of his job?
"How can I push my bike?" he responded. "I don't have any arms."
Trimble is suing the Kroger supermarket chain and Elwood Staffing Services, the temp agency that placed him at Kroger's corporate offices in southeast Portland. He claims their discrimination and retaliation violated the Americans With Disabilities Act and resulted in his wrongful firing.
Missing Sidewalks: A look at accessibility in Lawton
KSWO
A Lawton board aimed at making Lawton more accessible for the physically disabled is striving to build more sidewalks in town. Those sidewalks can make a world of difference for people in wheelchairs.
When getting just about anywhere, most of us don't think about how we are going to get there. We just get in the car and go. But for people with physical disabilities, it's not that easy. If they don't have access to a car, getting to where they want to go can be extremely difficult.
Leave handicap parking spaces to those who truly need them
Beckley Register-Herald