ADA, 508 & WCAG Compliance: What Do You Need to Know?
Business 2 Community
From website accessibility standards for the blind to considering the effects of flashing graphics on those prone to migranes, your business can’t afford to ignore website compliance concerns.
Yikes, even thinking about the word “compliance” sounds like an unpleasant topic, but as a business owner, you need to make sure every aspect of your business is as accessible as it can be for your audience. Considering your website’s approachability and practicality is no different.
Certain types of compliance might depend on your industry, but here’s a quick review of what you need to know to make sure you’re covered when it comes to fair access.
The Cheesecake Factory to Pay $15,000 To Settle EEOC Disability Discrimination Suit
According to the EEOCs suit, The Cheesecake Factory's Seattle restaurant failed to provide an effective accommodation for Oleg Ivanov, who is deaf and was a newly-hired dishwasher, then subsequently fired him for issues associated with his disability. The agency's investigation found that The Cheesecake Factory denied Ivanov's requests for orientation training with either closed captioned video or an American Sign Language (ASL) interpreter.
The EEOC alleged in its suit that the company's refusal to accommodate Ivanov violated the Americans with Disabilities Act of 1990 (ADA), which requires employers to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense. It is also illegal to punish an employee with a disability for requesting a reasonable accommodation. After first attempting to reach a pre-litigation settlement through the agency's conciliation process, the EEOC filed the lawsuit (EEOC v. The Cheesecake Factory, Inc. and The Cheesecake Factory Restaurants, Inc., 2:16-CV-1942-JLR.) in U.S. District Court for the Western District of Washington.
As part of a two-year consent decree, The Cheesecake Factory will pay $15,000 to Ivanov for back pay and compensatory damages, and has agreed to provide closed captioning for the training and orientation videos that are required viewing for new hires. The company will also provide more detailed descriptions to managers and employees on how the company is to provide reasonable accommodations to people with disabilities in the future.
EEOC Sues West Meade Place, LLP For Disability Discrimination
According to the EEOC's suit, West Meade hired the employee as a laundry technician in February 2015. When the employee requested leave as a reasonable accommodation for her anxiety disorder in November 2015, management told her she could not take leave, as the Family and Medical Leave Act did not apply to her.
West Meade then required the employee to obtain and return to management a note from her doctor, clearing her to return to work without any restrictions, less than 36 hours after the employee requested a reasonable accommodation for her disability. When the employee could not quickly obtain a doctor's note, West Meade discharged her, the EEOC said.
Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (EEOC v. West Meade Place LLP d/b/a The HealthCare Center at West Meade Place, Civil Action No. 3:18-cv-00101) in U.S. District Court for the Middle District of Tennessee, Nashville Division, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks injunctive relief prohibiting West Meade from discriminating against employees based on their disabilities in the future, as well as back pay and compensatory and punitive damages for the discrimination victim.
"Management officials have a responsibility under federal law to consider all reasonable requests to accommodate employees' disabilities," said Katharine W. Kores, district director of the EEOC's Memphis District Office, which has jurisdiction over Arkansas, Tennessee and portions of Mississippi. "When an employer refuses to do so, the EEOC is here to put things right."
Kentucky Fried Chicken Franchise to Pay $30,000 To Settle EEOC Disability Discrimination Suit
The EEOC filed suit in 2017, charging that Hester Foods' owner violated federal law by firing restaurant manager Cynthia Dunson in July 2015 when he found out that she was taking medications prescribed by her doctor for her bipolar disorder. The restaurant owner referred to Dunson's medications in obscene terms, the EEOC said, and made her destroy her medications by flushing them down a toilet at the restaurant. When Dunson later told the owner that she planned to continue taking the medications per her doctor's orders, the owner told her not to return to work and fired her.
Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (Civil Action No. 3:17-cv-000340-DHB-BKE) in U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process.
In addition to providing monetary damages to Dunson, the consent decree settling the lawsuit requires Hester Foods to create and disseminate a handbook containing policies that prohibit discrimination. The decree also requires that the company provide annual equal employment opportunity training to its managers, supervisors, and employees. The two-year decree further requires the company to post a notice to its employees about the lawsuit and to provide periodic reporting to EEOC about disability discrimination complaints.
"Federal laws protect employees whose disabilities require them to take medications and employers must make accommodation for those requirements," said Bernice Williams-Kimbrough, director of the EEOC's Atlanta District Office.
Antonette Sewell, regional attorney for the Atlanta District Office, added, "Employers are not allowed to force workers with disabilities to choose between their jobs and their health. Reasonable accommodation includes allowing workers to rely on their physicians, not on the opinions of the company managers."
Vantage Drilling Sued by EEOC For Disability Discrimination
The EEOC's lawsuit charges that Vantage employee David Poston was terminated after he suffered a heart attack while working on the "Titanium Explorer," one of Vantage's drilling rigs. The heart attack resulted in an impairment to Poston's cardiovascular system which necessitated that he take short-term disability leave. Poston was targeted for termination while he was on leave, the EEOC said, and then discharged immediately upon being released to return to work.
Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (Civil Action No. 4:18-cv-00254) against Vantage Drilling Company, Vantage Energy Services, Inc., Vantage Drilling International, f/k/a Offshore Group Investment Ltd., and Vantage International Management Company Pte. Ltd. in U.S. District Court for the Southern District of Texas, Houston Division, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks an injunction prohibiting such actions in the future, as well as back pay with pre-judgment interest, compensatory damages and punitive damages, in amounts to be determined at trial.
"Targeting an employee for an adverse action because he has been forced to take disability leave due to a debilitating medical condition violates the ADA," said Rayford O. Irvin, district director of the EEOC's Houston District Office. "This sort of illegal treatment deprives such people of the equal opportunities in the workplace that every American should enjoy."
Rudy Sustaita, the EEOC's regional attorney in Houston, explained, "An employee who has suffered a heart attack has enough to deal with without having to face unlawful discrimination and unemployment. The EEOC is here to fight for the rights of people like David Poston."
The EEOC's senior trial attorney in charge of the case, Connie Gatlin, added, "Vantage's thoughtless actions in this case violate both the letter and the spirit of the ADA, which is intended to increase job opportunities and protections for people with disabilities."
EEOC Files Disability Discrimination Lawsuit Against Heritage Home Group
According to the EEOC's complaint, Heritage Home hired Michael Woods to work as a machine operator at its Hickory Chair Company manufacturing plant in Hickory, N.C., in October 2015. Woods, a diabetic, developed an infection in one of his toes in March 2016. Woods underwent an operation to have the toe amputated, and was subsequently diagnosed with peripheral neuropathy in both feet. The EEOC said that around April 8, 2016, Woods, who was out of work on short-term disability leave, informed Heritage Home of his anticipated return to work the first week of June, since he needed the additional leave to recover fully. In a letter dated April 29, 2016, Heritage Home informed Woods that it was terminating his employment because he would not be able to return to work until then.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodations to qualified individuals with a disability unless doing so would be an undue hardship. The EEOC filed suit in the U.S. District Court for the Western District of North Carolina, Statesville Division (EEOC v. Heritage Home Group, LLC, Civil Action No. 5:18-cv-00018) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay, compensatory damages and punitive damages, as well as injunctive relief.
"The obligation to accommodate an employee with a disability so that he or she can retain the job is a fundamental aspect of the ADA," said Lynette A. Barnes, regional attorney for the EEOC's Charlotte District Office. "Employers must be careful to give employees a fair chance to make a full recovery from disability-related conditions and return to productive work when the company can do so without undue hardship."
Disabled customer alleges Alhambra liquor store violated ADA
Northern California Record
A disabled customer is suing the business operators of an Alhambra liquor store, alleging failure to uphold Americans with Disabilities Act (ADA) regulations, negligence, unfair competition and violation of the Unruh Civil Rights Act.
Jose Mendez, who requires use of a wheelchair, filed a complaint Jan. 22 in U.S. District Court for the Central District of California against Mega Liquor No. 8 and Does 1-10, alleging failure to provide full and safe equal access to its facilities.
According to the complaint, on April 25, 2017 and again June 15, 2017, Mendez attempted to enter the Mega Liquor store, 2020 W. Valley Blvd., Alhambra. The suit says during each visit Mendez encountered a number of barriers that interfered with his ability to use and enjoy the goods, services, privileges, and accommodations of the store.
The plaintiff alleges the defendants failed to comply with federal and state standards for the parking space designated for persons with disabilities, and failed to adequately maintain the parking space designated for persons with disabilities.
Mendez seeks trial by jury, statutory general and treble damages of no less than $4,000, preliminary and permanent injunction, attorney fees, litigation expenses, costs of suit and all further relief the court deems just. He is represented by attorney Jason Yoon of So.Cal. Equal Access Group in Los Angeles.
U.S. District Court for the Central District of California case number 18-cv-532
A Fowl Plea for Emotional Support: 'Can I Bring My Peacock to Work?'
Workforce Management
The ADA makes no reasonable accommodation allowance for 'emotional support animals' of any species and of any size. Period.
Company bans emotional support peacock: ADA violation?
Hr Morning
A United Airlines passenger recently made headlines when she tried to bring her pet peacock on board, which she said she needed for emotional support. For a slew of health and safety reasons, United did not allow the animal on the plane.
While the airline was well within its rights to deny her request, it begs the question: Do you have to let your employees bring their emotional support [insert animal here] to work? Does it violate the ADA if you don’t?
Employment attorney Jon Hyman weighed in on this, breaking down what exactly the ADA says about support animals.
Does the MHRA Require an Employer to Engage in an Interactive Process to Determine an Appropriate Reasonable Accommodation?
Lexology
The Minnesota Court of Appeals recently held that the Minnesota Human Rights Act (MHRA) does not require an employer to engage in an interactive process with an employee to determine whether an appropriate reasonable accommodation is necessary.
In McBee v. Team Industries, Inc., the plaintiff, a machine operator, received medical attention for back and neck pain, including numbness in her hand and arms. No. 03-CV-15-1470 (Minn. Ct. App. Jan. 16, 2018). Her doctor placed her on a lifting restriction and she subsequently notified her employer of the restriction. The employer terminated her due to concerns related to her medical restrictions. The plaintiff brought suit alleging disability discrimination and reprisal in violation of the MHRA.
In deciding the case, the Minnesota Court of Appeals first analyzed whether the plaintiff was a qualified individual with a disability. Because she could not perform the essential functions of her job – the ability to lift ten pounds – the court determined that she was not qualified. The court also held that the plaintiff was unable to be accommodated because “an employer is not required to reallocate or eliminate essential functions of a job to accommodate an employee with a disability.”
Notably, the court also held that, unlike the American with Disabilities Act (ADA), the MHRA “does not require an employer to engage in an interactive process to determine an appropriate reasonable accommodation.” The court noted that this holding runs contrary to Eighth Circuit case law holding the MHRA require an interactive process, similar to the ADA. However, the court explained that the Eighth Circuit cited “federal law for this ruling based on language in the ADA, not language in the MHRA.” And the plain statutory language of the MHRA, unlike ADA regulations, makes no mention of a required interactive process.
Takeaway: The MHRA, which applies to all employers who employ at least 1 employee in Minnesota, does not require the employer to engage in an interactive process to determine an appropriate reasonable accommodation for a disabled employee. The ADA however, which applies to employers with 15 or more employees, may still be applicable to certain companies and does require an interactive process.
ADA complaint against IPS will continue
Indiana Lawyer
A federal lawsuit alleging Indianapolis Public Schools failed to accommodate a former employee’s disability will proceed in the U.S. District Court for the Southern District of Indiana after a judge partially denied IPS’ motion to dismiss.
Interplay of FMLA and ADA Precludes Employers from Automatically Terminating Employees at End of FMLA Leave
Lexology
Q: Can my company fire an employee once the person has exhausted his or her FMLA leave entitlement?
A: Many employers are surprised to learn that they may not necessarily terminate an employee if he or she does not return to work at the end of FMLA leave. Under the Family Medical Leave Act (FMLA), an employee is eligible for up to 12 weeks of unpaid job-protected leave. Upon returning from FMLA leave, except in a few limited situations, an employee is guaranteed the right to return to the same position or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment that the employee held before the leave commenced. Under FMLA regulations, however, an employee does not have a right to return to work if he or she is unable to perform the essential duties of the position.
But what if the employee asks for more time off after the FMLA leave period has expired?
Once an employee has exhausted his or her FMLA leave, the Americans With Disabilities Act (ADA) requires employers to consider whether an extension of leave is warranted as a reasonable accommodation of a disability. An extended leave may be a reasonable accommodation if it is for a finite period of time to receive treatment or to recover from a disability. Employers must consider each situation on a case-by-case basis, engaging in the interactive process with the employee to determine whether the employee has a disability within the meaning of the ADA, and whether an extended leave would be a reasonable accommodation to enable the employee to perform the essential functions of the job once he or she returns to work. Employers also must determine whether there are any applicable state laws or worker’s compensation laws that are implicated.
In addition to considering the application of the ADA to each employee’s situation, employers should ensure that their employee handbooks do not contain return to work policies that violate the law. Language that calls for automatic termination after the employee has been absent for a certain period of time may give rise to liability for failure to consider the impact of the ADA.
Sharing an Employee's EEOC Charge With Other Employees May Violate the ADA
Lexology
The right to communicate with the Equal Employment Opportunity Commission (EEOC) is protected by federal law. In fact, the EEOC’s Strategic Enforcement Plan identifies “preserving access to the legal system” as one of its six enforcement priorities. Recently, one employer learned that a letter from its in-house attorney to its workforce may be viewed as violating federal law by chilling employees’ willingness to file discrimination claims.
In September of 2015, the EEOC filed a lawsuit in federal court in Connecticut against Day & Zimmermann NPS, Inc. (DZNPS), a provider of staffing services to the power industry. The suit alleged that DZNPS violated the Americans with Disabilities Act (ADA) when it sent a letter from its in-house counsel to nearly 150 employees, informing them that one of their former coworkers had filed a disability discrimination charge with the EEOC. The letter divulged the name of the employee, the specific allegations in the charge (including the nature of the disability alleged), and the actual accommodations sought by the individual.
Contempt motion filed over handling of ADA accommodations for LSAT
ABA Journal
Almost four years after the Law School Admission Council entered a consent decree involving allegations that it flagged LSAT scores of individuals with disabilities who sought extended time accommodations, a California agency has filed a contempt motion against the LSAC.
Allegations in the contempt motion include take-it-or-leave-it offers with less time to take the test than requested, along with a short response period; wrongfully reporting those offers as requests “granted in full”; and altering internal documents to replace requested time with time that the LSAC counteroffered.
Also, the organization allegedly characterized extra-time requests denied for lack of documentation as “no decision,” according to the October 2017 motion filed by the California Department of Fair Employment and Housing. A hearing is scheduled for Feb. 23 in the U.S. District Court for the Northern District of California.
Fired for being pregnant: Another kind of discrimination women face at work
wtkr.com
In June, Whitney Tomlinson felt nauseated at work. She was pregnant at the time and was experiencing the condition commonly, and misleadingly, known as morning sickness. Hormone-induced nausea doesn’t know what time of day it is.
Tomlinson, a 30-year-old single mother and packer at a Walmart Distribution Center in Atlanta, told her supervisor that she wasn’t feeling well. In response, he explained that in order for him to give her a break, she would need a note from her doctor. So off to her doctor she went.
The doctor didn’t identify any worrisome pregnancy complications but did suggest that Tomlinson avoid heavy lifting while at work and wrote a note suggesting as much. Tomlinson didn’t think this would be much of a problem, as she often got help with heavy lifting, including before becoming pregnant.
Upon her return to work that afternoon, Tomlinson handed her supervisor the note. He read it and then told her to take it to human resources. She would be getting a break, yes, but it wasn’t the one she had hoped for. It also wasn’t legal, according to a new complaint filed on Tomlinson’s behalf with the Equal Employment Opportunity Commission.