Civil Rights Division Publishes New ADA Technical Assistance for State and Local Governments
The Justice Blog
In the United States, more than 55 million Americans—18% of our population—have disabilities. This number includes many people who became disabled while serving in the military. And, by the year 2030, approximately 71.5 million baby boomers will be over age 65 and may need services and surroundings that meet their age-related physical needs. And they, like all Americans, want to fully and meaningfully participate in all their state and local government has to offer. The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against people with disabilities. Under Title II of the ADA, people with disabilities are entitled to all of the rights, privileges, advantages and opportunities that others have when participating in civic activities.
Lexology
In the case of EEOC v. United Airlines, Inc., United agreed to pay more than $1 million to settle a lawsuit regarding reasonable accommodation issues for disabled employees. (N.D. Ill., June 11, 2015). The lawsuit focused on to what extent an employer is required to assign a disabled employee to a vacant position as a form of reasonable accommodation. United permitted the reassignment of a disabled employee, but stated that reassignment must be on a competitive basis. That is, in order for the disabled employee to move into the vacancy, the employee must apply for it and be considered with any other employee. According to United’s transfer policy, the “disabled employee [must] be the best qualified individual, or tied in qualifications with the best qualified individual, to receive priority consideration for placement in a vacant position needed as an accommodation.”
Update on employee telecommuting
Lexology
Employers increasingly deal with an electronically-mobile workforce. Policies addressing bring-your-own-device, (BYOD), mobile office and flexible work schedules are becoming more common in employee handbooks. One related issue is employee telecommuting. It can be a win-win if an employer and employee agree that telecommuting is viable in a given situation. It is not so simple if an employee wants to telecommute, but the employer does not agree for business or strategic reasons.
Fourth Circuit affirms EEOC’s resounding summary judgment defeat in ADA case
Lexology
In a case we have previously blogged about several times due to spoliation sanctions imposed on the EEOC – most recently here - the U.S. Court of Appeals for the Fourth Circuit affirmed a ruling out of the Middle District of North Carolina and upheld the summary judgment dismissal of an ADA lawsuit brought by the EEOC. In EEOC v. Womble Carlyle Sandridge & Rice, LLP, No. 14-1958 (4th Cir. June 26, 2015), the district court held that the individual the EEOC brought suit on behalf of, Charlesetta Jennings, was not a “qualified individual” under the Americans With Disabilities Act (“ADA”). Accordingly, it granted summary judgment to the employer. The EEOC appealed the decision to the Fourth Circuit and it affirmed.
The ruling is instructive for any employer facing ADA litigation brought by the Commission.
Labor Law: Disability-related questions for job applicants
Richmond Times-Dispatch
For most discrimination laws, illegal conduct in the hiring process generally occurs only when an employer takes action based upon the response from an applicant in the application stage. For example, a manager asks an applicant during an interview: “Are you pregnant?” Merely asking this question (while not advisable) is not itself illegal. It would be illegal for the employer to deny the applicant employment based on a positive answer.
The same is not true under the Americans with Disabilities Act. Under the ADA, merely asking a disability-related question during the pre-offer stage is itself a violation of the law, regardless of the response and regardless of whether the employer takes action based on an affirmative, or negative, answer. I frequently review applications that contain these improper inquiries, creating an inadvertent legal violation that employers might not realize.