ADA in the News February 19, 2019

Comcast didn't violate ADA in denying transfer, judge says

HR Dive

Comcast did not fail to accommodate an employee's disability by declining to reassign her, a federal district court judge has ruled (Turcotte v. Comcast Cable Communications Management, LLC, No. 17-cv-150 (N.H. Feb. 14, 2019)). The judge granted Comcast summary judgment on all counts after the former employee alleged it violated the Americans with Disabilities Act (ADA).
After Brenda Turcotte's position was automated, she was transferred to a dispatch job. Her performance suffered because, according to her complaint, the high volume of inbound calls exacerbated her anxiety and panic attacks. She eventually took leave and requested reassignment but, according to the court, largely sought positions with requirements similar to those of the dispatch job. She also struggled to provide medical documentation to support her requests, failed to follow protocol for applying for jobs internally and eventually took an intern position with a finite end date, ultimately ending her employment with Comcast.
The judge granted summary judgment to Comcast on all of Turcotte's claims, specifically noting that because she was requesting a transfer that would have had her performing the same job functions, "it defies logic to argue that those jobs would have been a reasonable accommodation. If she could perform this function, Comcast would have no obligation to accommodate her at all."

Dive Insight:

Turcotte illustrates the weight that courts place on the ADA's interactive process. Managers need to be trained to dedicate extra time and effort to employees with disabilities when determining accommodations, David K. Fram, the director of ADA and Equal Employment Opportunity services for the National Employment Law Institute, told HR Dive in a previous interview. Based on the court's order, Comcast's efforts to accommodate Turcotte appear to have been exemplary; managers and HR representatives set aside time to train, retrain, counsel and conduct internal job searches with Turcotte.

What's more, the interactive process seems to have faltered when Turcotte failed to respond to requests for information from the company and failed to notify the company of her intentions. The ADA doesn't mandate a specific interactive process, but courts certainly tend to favor employers that carry out the interactive process well. An employer causing the breakdown of the process, for example, can serve as evidence of disability discrimination. Similarly, evidence that a breakdown was an employee's fault can help an employer defend later claims.

To ensure managers get the interactive process right, employers can start by training them to recognize the need for an accommodation, Haynes and Boone, LLP, Partner Adam Sencenbaugh previously told HR Dive. As the judge noted in Turcotte, an employee need not use special language — like "accommodation," for example — to communicate a need. Managers must realize when an employee needs help because of an impairment and guide the process from there.

Why Mattel's Inclusion Of Barbie Dolls With Disabilities Isn't Enough

Forbes

On Monday, February 4th, Mattel announced that its Barbie Fashionistas line will come out with two dolls with disabilities in June of this year. Along with dolls who have braided hair texture and a more realistic body type, there will also be Barbies in a wheelchair and with a removable prosthetic leg.

“A wheelchair or doll in a wheelchair was one of the most requested items through our consumer ... hotline. It's important to us to listen to our consumers," Kim Culmone, Mattel’s vice president of Barbie Design told Teen Vogue.

This is a big milestone in the toy company’s efforts to diversify its Barbie line and portray an accurate representation of the children who play with the dolls. Mattel has long heard criticism that the Barbie dolls set unrealistic expectations of a woman’s body and promotes sexist career choices.

Before celebrating Mattel’s latest announcement, however, there is a need to question why it has taken 60 years for the company to successfully include disabilities in the doll’s line. “Successfully” is the key word here because this isn’t Mattel’s first attempt to produce a Barbie doll with a disability.

Disability Lawsuit Targets San Diego Over Dockless Scooters

KPBS

As the San Diego City Council begins debating regulations for motorized scooters this week, the city is also preparing to respond to a lawsuit claiming the new devices have caused discrimination against people with disabilities.

The lawsuit, which was filed in a federal district court last month and seeks to be a class action, claims both the city and scooter rental companies Lime, Bird and Razor have failed to prevent people from riding or parking scooters on sidewalks. Scooters have blocked people with disabilities from accessing the public right-of-way, the plaintiffs claim, and have turned sidewalks into a "vehicle highway" where pedestrians are at risk of injury.

"People with disabilities who wish to travel in the City using the City's walkways are being forced to either put their physical safety at risk or just stay home," the complaint reads. "This is not a choice that they should have to make."

The lawsuit seeks a court order prohibiting scooters from being parked or operated on sidewalks, crosswalks, curb ramps and other walkways.

A Spate of Lawsuits Is Targeting Art Schools for Failing to Comply With Disability Act Standards

artnet News

Just a few weeks after more than 75 New York art galleries were hit with a wave of lawsuits alleging that their websites are not compliant with the 1990 Americans With Disabilities Act, a group of art and design colleges across the country have now been targeted.

The new round of lawsuits accuses five schools—the School of the Art Institute of Chicago, the College for Creative Studies in Detroit, the Ringling College of Art and Design in Florida, the Art Academy of Cincinnati, and the Stephens Institute in San Francisco—of failing to make their websites accessible to the hearing impaired.

The plaintiff is the same in all five cases: Philip Sullivan. Jr., a New York City resident who is deaf. “He brings this civil rights lawsuit against Defendant for failing to design, construct, and/or own or operate a website that is fully accessible to, and independently usable by, deaf and hard-of-hearing people,” according to Sullivan’s lawsuit, filed in the US District Court for the Southern District of New York. Sullivan’s attorney did not respond to a request for comment.

Gaps remain in phone accessibility for people with disabilities

Futurity: Research News

Mobile phones are increasingly more accessible for people with disabilities, but there are still some significant gaps in service, according to a new study.

United States: Driving Blindfolded: EEOC Withdraws Guidance On Wellness Programs

Mondaq News Alerts

Effective January 1, 2019, the EEOC withdrew its prior guidance on the level of incentives employers may offer their employees to convince those workers to participate in employer-sponsored wellness programs, including weight loss, stress management, and other similar employee health programs. Despite withdrawing its regulations, the EEOC did not issue any new rules—leaving employers without clear guidance on how they may structure wellness programs to comply with federal requirements moving forward.

Pursuant to a court order, the EEOC recently withdrew its prior guidance on the level of incentives that employers can offer employees to convince them to take part in employer-sponsored wellness programs. Unfortunately, the EEOC did not substitute any new regulations when withdrawing the old ones. As a result, employers find themselves in limbo, without clear guidance on how to structure wellness programs that actually drive changes in employee health choices while at the same complying with federal law.

Employee fired after accumulating over 190 'AWOL' hours advances failure-to-accommodate claim
Finding fact issues as to whether there was a causal connection between an employee's request for alternate work hours and the limitation that rendered her disabled—a knee condition—and that a reasonable jury could find her employer, not the employee, failed to engage in the interactive process, a federal court in the District of Columbia denied summary judgment on the ADA failure-to-accommodate claim of a former administrative law judge who was fired after she missed 90 minutes of work daily for over a year. Her other claims, however, including for disability and race discrimination, retaliation, and failure to pay minimum wage all failed. (McNair v District of Columbia, DDC, February 8, 2019, Mehta, A.)

United States: [Podcast]: Can My Employees Bring Animals To Work?