ADA in the news

Lap band surgery didn't render teacher 'regarded as' disabled under the ADA, 5th Cir. rules

Dive Brief:

• A teacher’s lap band surgery didn’t render her protected by the Americans with Disabilities Act’s (ADA) "regarded as" disabled prong, the 5th U.S. Circuit Court of Appeals held (Lyons v. Katy Independent School District, No. 19-20293 (5th Cir. June 29, 2020)).
• The plaintiff had alleged she was reassigned based on her perceived disability — impairments related to her procedure. A federal district court granted summary judgment for the employer, concluding that because the impairment lasted less than two months, it was exempt under the prong’s "transitory and minor" exception.
• On appeal, the 5th Circuit upheld the lower court’s order, stating that "any impairment as a result of [her] lap band surgery was objectively transitory and minor by her own admission, because the actual or expected duration of any impairment related to the lap band procedure was less than six months."

Dive Insight:

The ADA provides nondiscrimination protection to individuals with an actual disability; with a record of a disability; and regarded as having a disability.

That third prong, however, contains an exception for impairments that are "transitory and minor" in nature. Specifically, "[a] transitory impairment is an impairment with an actual or expected duration of 6 months or less."

Notably, the Lyons court said it didn’t need to address whether the law requires that impairments be both transitory and minor to qualify because the plaintiff’s obviously had both of those characteristics. Other courts have had to address that question, however. The 3rd Circuit just weeks ago opined that the law requires an impairment be both transitory and minor to lose the protection of the ADA’s regarded as prong, reviving a truck driver’s suit for reconsideration.

Despite courts enforcing this exception, employers may want to note that Congress made it easier for workers to establish "regarded as" coverage with the 2008 ADA Amendments Act, as explained in the appendix to its regulations. It also, however, made clear that individuals entitled to protection only under the "regarded as" prong of the definition of disability are not entitled to accommodations.

Appeals court rejects ADA jury verdict for Costco worker

Dive Brief:

• A jury incorrectly awarded a former Costco employee $775,000 in a disability accommodation lawsuit, the 11th U.S. Circuit Court of Appeals held (D'Onofrio v. Costco Wholesale Corporation, No. 19-10663 (July 6, 2020)).
• The employee, a deaf individual who worked successfully for Costco for years and communicated by reading lips, requested the company provide deaf culture training after she began having trouble with a new manager. The employer conducted the training and also implemented a video relay service. She sued, alleging it failed to accommodate her disability, in violation of state law. Among other things, she said, the training resulted in her being assigned three individuals with whom she was supposed to primarily communicate.
• A jury ruled in her favor, awarding her $750,000 for emotional pain and mental anguish, and $25,000 in punitive damages. The trial court, however, rejected the verdict and the 11th Circuit agreed. "We cannot hold that an employer fails to reasonably accommodate a deaf employee when it provides her with on-demand access to live sign-language interpreters at two, convenient locations within her place of work; when it goes further to provide on-site person interpreters for larger, group meetings; when it arranges a thorough training session on deaf culture, pursuant to the plaintiff's request; and when the plaintiff's general manager — the supervisor who was the sole subject of her sole complaint — resolves to improve his relationship with the plaintiff by attending multiple, one-on-one training sessions," it said. In fact, it concluded, the plaintiff "cannot point to 'a specific instance in which she needed an accommodation and was denied one,'" it said, citing earlier circuit precedent.

Dive Insight:

The Americans with Disabilities Act (ADA) and similar state laws require that an employer provide a reasonable accommodation if needed to enable an employee with a disability to perform their essential job functions.

Generally, it's up to the employee to put the employer on notice that they're having difficulty performing their job because of an impairment, the U.S. Equal Employment Opportunity Commission has said in guidance. That then triggers the interactive process, an informal back-and-forth discussion that the law favors.

Employees are not entitled to their accommodation of choice, only an effective, reasonable one, courts say. Once an accommodation is supplied, employment experts recommend that HR or a manager check in at regular intervals to ensure the change is working well for the employee. Communication is key, when it comes to the interactive process; "keep that door open so you can go back and change it if it's not working out," Lara C. de Leon, now a partner at Constangy, told attendees at a 2019 conference.

Additionally, thorough documentation of both the interactive process and all accommodation attempts can serve an employer well should an issue reach litigation, employment attorneys say.

A Guide for Employers on Proper Temperature Screening

As Iowa continues to restart its economy, many businesses are considering how to safely reopen their workplaces.

One question employers may face is whether to implement a temperature screening procedure in an effort to protect employees and minimize the risk of spreading COVID-19. Many health and legal implications must be considered in the adoption of such measures.

The Legality of Screening Employees’ Temperatures

The Equal Employment Opportunity Commission (EEOC) has made it clear in guidance documents that employers are allowed to monitor employees’ temperatures during the coronavirus pandemic. Under the Americans with Disabilities Act (ADA), mandatory medical examinations—including temperature taking—are only allowed if they are job related and consistent with the employer’s business needs. Considering recommendations by the Centers for Disease Control and Prevention (CDC) and the current circumstances of the pandemic, the EEOC is allowing employers to take steps to determine whether employees entering the workplace have COVID-19. The EEOC has acknowledged that these steps may include both temperature screening measures and asking about symptoms if an employee reports they feel ill or calls in sick. However, requiring any type of antibody test before employees re-enter the workplace remains prohibited under the EEOC’s interpretation of the ADA.

Bedford Giant Eagle among stores named in lawsuits

A lawsuit brought by a Bedford-area woman is one of dozens filed in the western half of the commonweath against Giant Eagle regarding its face mask polic — a policy that the plaintiffs say violates the Americans with Disabilities Act and alleges that the chain treats customers with disabilities “like ‘lepers’ rather than ‘guests.’ ”

The lawsuit, on behalf of Vicki Parker, whose address was not identified, was filed by Pittsburgh attorneys Thomas B. Anderson of Thomson, Rhodes & Cowie P.C. of Pittsburgh.

It asserts that Parker, suffers from several health conditions, including chronic obstructive pulmonary disease (COPD), congestive heart failure and anxiety, that keep her from wearing a face mask.

Suit filed against DeSantis for not having sign-language interpreters at COVID briefings

While Gov. Ron DeSantis holds frequent news briefings to update the public on COVID-19, Disability Rights Florida and the National Association of the Deaf say he has failed to provide the same updates for deaf and hard-of-hearing residents.

Why Now Is The Time To Make Your Website ADA-Compliant

Accessibility prioritization benefits everyone.

With the ever-evolving challenges related to the Covid-19 pandemic, web accessibility is essential in our new physically distant but socially connected way of life. Communities all over the world are unsure how much longer they’ll have to wait until the coronavirus dissipates, children return to school and employees go back to work. But for the millions of people who are blind, deaf or motor-disabled, one thing hasn’t changed: The internet serves as the only means with which disabled people purchase food, prescriptions and supplies, as well as communicate with the world around them.

For business owners, all the social distancing and working from home has provided the perfect invitation for us to focus on the details of our business that may have been overlooked or not prioritized. One recent study analyzed 10 million webpages and found that most e-commerce sites are not compliant with what is referred to as "Web Content Accessibility Guidelines" (WCAG). Although there isn't a legal prescription for web accessibility for private companies in the U.S., WCAG is frequently referenced by courts when adjudicating compliance litigation. Alarmingly, 98% of websites failed compliance standards for their menus alone, and many sites were not navigable by a keyboard, nor did they incorporate code that could communicate with screen readers and other assistive tools. This is a big deal, and we must do a better job of ensuring equal access to all people.

For tech leaders and citizens of humanity, there is no question that accommodating those who are disabled is the right thing to do. It’s our responsibility. Discrimination of any kind is unacceptable. However, it makes good business sense as well to be more accommodating, particularly when internet use is at an all-time high. Business owners certainly want as many people as possible to be able to access their website, purchase goods and otherwise do business with them.

It is estimated that more than 1 billion people — 15% of the world’s population — have disabilities. That’s 25% of American adults, or 61 million people, who spend over $200 billion annually. Globally, an estimate of the disability market is nearly $7 trillion. Missing out on such a large segment of the population due to poor website accessibility is simply foolish.

Maine man with cancer sues CMP, saying its smart meter fees are discriminatory

Bowdoinham resident Ed Friedman filed a disability discrimination lawsuit against Central Maine Power (CMP) Tuesday in Portland’s U.S. District Court, arguing the company's smart meter fees discriminate against him. 

Friedman has lymphoplasmacytic lymphoma, an uncurable form of cancer.

The suit, brought under the Americans with Disabilities Act (ADA), Fair Housing Act (FHA) and Rehabilitation Act of 1973 (Rehab Act) alleges smart meter opt out fees are discriminatory to those disabled customers whose condition may be exacerbated by emitted radiation from the meters.

Mindset Matters: The Evolution Of Disability In Corporate Life And The Next American Frontier

With the anniversary of the Americans with Disabilities Act (ADA) approaching it becomes imperative that as a society we begin to reframe this piece of legislation and examine it in a newfound way. Corporate culture should take the lead in advancing this opportunity because it is through shrewd leadership that will not only reveal the sheer power of the ADA but offers a new vision that lies in front of us to strive toward a just and equitable nation.  By expanding the meaning of the ADA beyond the bounds of legal parlance corporate culture has a tool to see the enormity of possibilities where imagination and creativity can become part of the arsenal that brings us to the next wave of growth and prosperity. The disability community can use the slogan “Nothing About Us Without Us” to show the world of business that they should no longer be marginalized, but rather part of the larger conversations in corporate life from human capital issues to product development. The disability community must play a fundamental role in the growth of business for the 21st century.

In the nascent description of The Americans with Disabilities Act through the lens of business, it will be the next wave of entrepreneurs and venture capitalists that may have even more profound roles than activists and those in the halls of Congress. It is the language of business that impacts the minutia of our daily lives. Whether it is the products and services we buy to make our lives better or the media we consume that shapes the way we think, business provides an ongoing narrative to the circadian rhythm of our lives. It is so commonplace, that we often don’t even recognize the power it exerts. Entrepreneurs with disabilities can no longer sit idle, they must get into the arena and explore not only how to use a great idea to start a business, but help set the stage for other entrepreneurs with disabilities to not only contribute to the economy but develop a pathway for potential employment and job security for those that may not have been given the opportunity. 

While the ADA can serve to galvanize creative entrepreneurs with disabilities to start their journey to become founders and business owners, it is just as important for venture capitalists to think about the Americans with Disabilities as a tool to envision a new market sector that is rife with opportunity in a whole host of ways. Venture capitalists play a unique role in the evolution of the ADA as a business document. Perhaps venture capitalists can be appreciated like the patron families of the Italian Renaissance such as the Medici’s. It is their role to provide support to these young entrepreneurs and create a foundation that enhances their opportunity for success but also develops a pipeline where there is further potential for growth and the ability to foster a business ecosystem for those with disabilities where they can thrive. 

However, as venture capitalists should play a role in cultivating entrepreneurs with disabilities, companies from numerous sectors ranging from technology, healthcare, to consumer products should be open to potential investing in outside companies as well as thinking about the role of the intrapreneur. It is the character of the intrapreneur that offers another road for innovative, passionate, go-getters with disabilities to help redefine their role in the business milieu and show their value in the future of business. However, for this to come to fruition takes a joint effort. Corporate leaders have to be aware that one, this is a real possibility, and two create the opportunity for there to be the mechanism for real communication to take the next steps. It is here where diversity and inclusion leadership and Employee Resource Groups (ERG) become an essential role in this process. Much like the accelerator programs that pepper the landscape of the technology industry, diversity and inclusion leaders to C-level executives have to rethink the actual use of disability ERG groups and explore their true potential beyond just their role to foster a diverse, inclusive workplace aligned with the organizations they serve. Rather, the ADA should galvanize companies to go deeper and think about how they can mine for talent and serve the organization to better innovate, create, and ultimately generate more revenue.   

While we experience the ravages of the coronavirus pandemic, commemorating the upcoming anniversary of the Americans with Disabilities Act serves as more of a reminder that we as a nation must find ways to come together and be on the frontier of innovation to offer the potential for a better tomorrow. Persons with disabilities understand struggle and hardship. It is through their eyes that we can find ways to continue to have resolve, determination and as Winston Churchill understood the notion that “Success is not final; failure is not fatal: it is the courage to continue that counts.”