CCH
Issue:
For five years, Jerry, a factory worker with an intellectual disability, operated a cutting tool by hand until the plant replaced the tool with a more complex automated machine. Although Jerry has received training, his functional limitations prevent him from learning how to operate the new equipment, and there are no reasonable accommodations that will enable him to do his job. He asked Lonnie, his supervisor, if there is some other job he can do at the plant. Lonnie wants to know if he can skip all that and just fire Jerry.
Answer:
No, Lonnie cannot just fire Jerry. The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate applicants and employees with disabilities to enable them to enjoy equal employment opportunities unless doing so would be an undue hardship (i.e., a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability.
The employer should work with Jerry to determine whether he can be reassigned to a vacant position for which he is qualified. The vacant position must be equivalent in terms of pay and status to the original job, or as close as possible if no equivalent position exists. The position need not be a promotion, although the employee should be able to compete for any promotion for which he is eligible.
Employers should ask an employee with an intellectual disability, or the person acting on his or her behalf, what the employee needs to help him or her do the job. Also, extensive public and private resources are available to help employers identify reasonable accommodations.
Source: EEOC Guidance: "Revised Questions and Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act," https://www.eeoc.gov/laws/types/intellectual_disabilities.cfm, reported in Employment Practices Guide, ¶5374.
EEOC Files Suit against Big Lots Stores for Disability Discrimination and Retaliation
National retailer Big Lots Stores, Inc. violated federal law by condoning disability harassment and punishing an employee without disabilities for her association with a co-worker with disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed yesterday.
In its lawsuit, the EEOC charges that a retail employee with hearing and speech disabilities was subjected to harassment by her co-workers at Big Lots' Elkins, W.V., store. Co-workers often mocked the employee's hearing disability and manner of speech, and frequently used derogatory and highly offensive terms in reference to her and her disabilities. The EEOC asserts that numerous Big Lots officials were aware of the long-standing pattern of disability harassment taking place at their store but failed to take appropriate action to end the harassment and prevent it from recurring. Additionally, the EEOC charges that Big Lots refused to select the employee with disabilities for several vacant jobs that she sought at the store because of her disabilities and in retaliation for her reporting of the harassment to company officials and to the EEOC.
Further, the EEOC's lawsuit also charges that Big Lots subjected a department manager without disabilities at the Elkins store to discrimination and retaliation by changing her work schedule and withdrawing its permission for her to hold outside employment with the U.S. Postal Service, thereby forcing her to quit in order to save her Postal Service career. The EEOC says that Big Lots punished the department manager because of her long-term association with the harassment victim and in retaliation for her opposition to discrimination, such as her efforts to protect her co-worker from harassment by reporting the hostile work environment to Big Lots management officials and human resources. Big Lots officials also subjected both the harassed employee and the department manager to intimidation, threats, coercion, and interference with their exercise and enjoyment of rights protected by federal anti-discrimination law, according to EEOC's lawsuit.
Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA). The EEOC filed suit (EEOC v. Big Lots Stores, Inc. Case No. 2:17-cv-00073-JPB) in U.S. District Court for the Northern District of West Virginia after first attempting to reach a pre-litigation settlement through its administrative conciliation process. The agency's lawsuit seeks certain forms of injunctive relief, court-ordered job instatement and reinstatement, as well as payment of monetary remedies to the two employees, including past and future lost wages and benefits, compensatory damages and punitive damages.
High School Teacher Is Determined To Not Be Disabled After She Accepts Another Teaching Position
The National Law Review
Sharon Walker (“Walker”), a high school business teacher, brought suit against the Pulaski County Special School District (“PCSSD”) claiming that she had been discriminated against and retaliated against because of her disability in violation of the American with Disabilities Act (“ADA”). PCSSD filed a motion for summary judgment, and on May 1, 2017, it was granted by the U.S. District Court for the Eastern District of Arkansas.
Expert's 4-step process for managing employees with psychological disabilities
Hr Morning
When it comes to accommodating psychological disabilities, most employers will agree few situations are more challenging. With no one-size-fits-all answer, solutions are always employee specific, making psychological disabilities one of the toughest disabilities to manage.
As a result, Rachel Shaw, principal consultant of Shaw HRC Consulting, is sharing her uniform process that can help alleviate a lot of the headaches and compliance issues when seeking accommodations for employees with these disabilities.
When Is Reassignment to an Intermittent Position Required as an ADA Accommodation?
Lexology
The Americans with Disabilities Act (“ADA”) generally requires employers to provide reasonable accommodation to disabled employees so that they can perform the essential duties of their jobs. This is not news. But what if no feasible accommodation can be identified in an employee’s existing position? Employers are often uncertain about whether they must offer reassignment to an alternative light duty position when there is no present need for the work but the same light duty was offered to others in the past. Last month’s federal appellate decision in Audette v. Town of Plymouth offers reassuring guidance.
Lexology
The Eleventh Circuit, in Silva v. Baptist Health South Florida, Inc., recently addressed a healthcare provider’s obligation to provide effective communication, through appropriate auxiliary aids and services, to persons with disabilities pursuant to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (RA).[1] The lessons from this opinion are instructive to healthcare providers around the country who may find themselves in the shoes of the defendants.
Blocked Access: Website Accessibility Lawsuits on the Rise
Lexology
- Lawsuits alleging violations of the ADA for websites inaccessible to the blind are on the rise—with approximately 250 filed in the last year.
- The ADA prohibits discrimination against the disabled in “places of public accommodation” including some websites.
- ADA lawsuits can be costly to businesses and guidance on ADA compliance is still years away.
An increasing number of class action lawsuits have been filed over the past year against private companies by individuals alleging violations of the Americans with Disabilities Act (ADA) for failure to maintain websites that are accessible to the blind and visually impaired. In 2016 alone, approximately 250 lawsuits were filed by a handful of plaintiffs’ firms against companies in the retail, hospitality, and financial services industries alleging ADA violations related to website accessibility. Most of these suits have resulted in settlements that, in addition to the payment of some amount of financial remuneration to the plaintiffs, require companies to make their websites ADA compliant. The steady shift in our economy from traditional brick-and-mortar stores to online commerce has brought increased attention to website accessibility. Given the increasing number of website accessibility suits, it is important for any company that maintains a web presence that constitutes a “place of public accommodation” to understand the requirements of the ADA.
Walmart employees accuse company of penalizing them for taking sick days
HR Dive
The report comes just days after the retailer was accused of discriminating against pregnant workers and nursing mothers. Plaintiffs in that case, which could eventually include 50,000 female workers, claim Walmart refused to give pregnant workers the same accommodations as other disabled workers, as the law requires. If true, that could indicate some serious ADA and Pregnancy Discrimination Act compliance issues.
A Walmart spokesperson told the Times that the company understands workers' needs for occasional time off. In either case, the allegations are indicative of how much the issue of sick leave has grown in recent years. A previous report from the Times estimated that 1.5 million Americans go to work sick each week, most of whom lack paid sick leave benefits. Walmart rival Amazon reportedly paid German workers not to use their sick leave days.
Most Walmart employees are hourly, frontline, low-wage earners, who don't have the flexibility and privileges of salaried workers and who can least afford to take time off for family obligations. Employers must keep in mind the privileges some workers have over others when setting and enforcing workplace policies.
Walmart’s absence-control policy keeps track of employees' time off work and operates on a "three strikes" model, employees say. It's little wonder workers find this kind of "short leash" tracking intimidating. Employers would do well to avoid practices like these that create mistrust instead of fostering engagement.
Don't Force Employers to Provide Paid Parental Leave
National Review
Casino Employee's ADA Claims Dismissed Due to Current Drug Use
Lexology
A federal court in Nevada dismissed a casino employee’s American with Disabilities Act (“ADA”) claims — even though he had been treated for substance abuse in the past — because he admitted to current drug use which is not protected under the ADA. Scott v. Harrah’s LLC, No. 2:17-cv-01066-APG-VCF (D. Nev. May 9, 2017).
Blind Asian Man Kicked Out of Subway Because Of His Guide Dog
NextShark
A Subway sandwich outlet in New York has issued an apology after it received criticism for reportedly turning away a blind customer just because he brought his guide dog.
The customer, a local musician named Milton Kuna, told NBC NY that he was with his seeing-eye dog Nash when he visited the sandwich restaurant’s shop on North Main Street in New City, New York on Monday night. He claimed that he was turned away by the store’s staff who told him that dogs of any kind weren’t allowed.
ADA taking a toll on local businesses
Santa Ynez Valley News
Businesses have faced some tough issues lately with worker compensation and insurance costs skyrocketing, but business owners increasingly are grappling with Americans with Disabilities Act compliance — specifically trying to determine whether or not they've obeyed the law.