Steel Painters Settles EEOC Disability Discrimination Suit
Steel Painters, LLC, an industrial sandblasting and painting services company based in Beaumont, Texas, has agreed to pay monetary damages and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced.
According to the EEOC's lawsuit, Steel Painters violated federal law when it fired an employee based on his record of disability - past opioid drug addiction - and the perception that he continued to have such a disability due to his use of medically prescribed methadone. The employee disclosed his methadone prescription to the facility that conducted his pre-employment drug test and to Steel Painters at hire. The testing facility verified the methadone use was legally prescribed by a medically supervised drug rehabilitation clinic. However, when Steel Painters learned the employee tested positive for methadone on his drug screen, it instructed the employee to have his prescribing physician complete a company-issued verification form.
The EEOC said that when the employee informed Steel Painters' administrative manager that he was unable to comply because of the clinic's patient confidentiality rules, she unlawfully fired him. The employee requested that the manager allow him to confirm the safety of his methadone use by calling his rehabilitation clinic directly or by having a company doctor evaluate him. The EEOC charged that Steel Painters' insistence that the medication's safety could only be verified by the prescribing physician filling out the company form was a pretext to hide the company's discriminatory bias towards people using methadone.
Such alleged conduct violates Americans with Disabilities Act (ADA). The EEOC filed its suit (Civil Action No. 1:18-cv-00303) in U.S. District Court for the Eastern District of Texas after first attempting to reach a pre-litigation settlement through its conciliation process.
The EEOC and Steel Painters agreed to voluntarily settle the case by consent decree before trial. The two-year decree, signed and entered by U.S. District Judge Marcia Crone on Feb. 25, provides for compensatory damages to the employee. The decree also requires the company to modify its prescription drug verification policy to provide alternative medical verification procedures. The decree also mandates that Steel Painters develop a policy that prohibits disability discrimination and train its managers on the ADA.
Inability to Work for Specific Supervisor ≠ Disability
Reiterating the long-standing principle under the Americans with Disabilities Act that an employee must be unable to work a broad class or range of jobs, the U.S. Court of Appeals for the Second Circuit found the employee, who could not work only for his supervisor, not to be disabled within the meaning of the ADA.
In Woolf v. Strada, an employee attributed his worsening migraines, which increased his risk for heart attack or stroke, to work-related stress that would be ameliorated by a transfer or reassignment to another supervisor. Following a six-month period during which he took paid intermittent leave, he was terminated for poor performance. He sued, arguing that the employer had failed to provide him with a reasonable accommodation of a transfer or a new supervisor.
Noting the well-established understanding that “an employee’s inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working,” the Second Circuit found that the employee was not disabled because he could still perform a broad range or class of jobs. Consequently, he was not entitled to the protections of the ADA.
This decision again confirms that employees who attribute stress-related health conditions to working for a particular supervisor are not entitled to a change in supervisors. We note, however, that a change in supervisory methods may be required as an accommodation, as discussed in our blog post, A New Boss Is Not a Reasonable Accommodation.
Protecting Your Company From Hijacking By Snowflakes: Second Circuit Holds That Stress-Causing Inability To Perform A Job Is Not A Disability Under The ADA
The Americans with Disabilities Act (“ADA”) protects workers with a qualifying disability from being discriminated against in employment. A worker suffering from a disability must be provided with a reasonable accommodation to perform the essential functions of his job. If not, then liability attaches. A threshold issue is whether a claimed disability is qualifying under the ADA. In Woolf v. Strada (No. 19-860-cv; February 6, 2020), the Second Circuit issued a per curiam opinion that should give considerable comfort to HR departments in dealing with this influx of young workers who find the stress of daily work too much to handle. The holding: “[E]mployees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a ‘disability.’”
Employee unable to work because of PTSD not qualified for ADA protection, 5th Cir. says
Dive Brief:
- A former San Antonio city employee failed to show he was qualified for his job as a journeyman cable splicer at the time he was fired, the 5th U.S. Circuit Court of Appeals said, upholding a lower court's summary judgment for the city (Sanchez v. City of San Antonio, No. 19-50500 (5th Cir. Feb. 21, 2020)).
- Gabriel Sanchez was fired after several workplace safety incidents, some of which he caused and some of which caused him an injury. He was diagnosed with post-traumatic stress disorder after the last accident and unable to return to work. After several months, the city fired him, citing a "pattern of poor judgment, unsafe acts & behavior and unwillingness to follow critical work instructions." Sanchez sued, alleging the employer violated the Americans with Disabilities Act (ADA) by firing him because of his disability.
- A district court granted the employer's request for summary judgment, finding that Sanchez failed to show he was qualified for the job because he had not yet been cleared for work, as required for an ADA claim. And, even if he were qualified, he failed to show that his firing was pretext for disability discrimination, the court said. On appeal, the 5th Circuit agreed, concluding that Sanchez was not qualified for the job because he could not show he was able to perform the essential functions of the job on the date he was fired.
Dive Insight:
The U.S. Equal Employment Opportunity Commission (EEOC) has explained that essential functions are the fundamental job duties that an employee must be able to perform. If an employee cannot perform the essential functions of a job, either with or without a reasonable accommodation, the worker is not qualified for the position and generally cannot invoke the protections offered by the ADA.
"Essential functions" vary from job to job. Earlier this year, for example, a former police officer with PTSD who wasn't cleared to return to work failed to show that he could perform the essential functions of his job. Regular attendance for supervisors can be an essential function, some courts have found. And yet another court determined that staying awake was an essential job function for a cable TV/internet technician with narcolepsy whose job involved monitoring outages.
Job descriptions can be an important element in determining the essential functions of a job and courts often rely on them, giving deference to the employers' determinations, experts say. EEOC also said in a guidance document that an employer's judgment and a written job description prepared before advertising or interviewing for a job will be considered evidence of essential functions by the federal agency.
As a result, employers may want to prioritize written, up-to-date job descriptions that spell out what is essential and what is not essential. Experts have said it's a good idea to tie job description reviews to annual performance reviews and that employers have employees sign off on them at that time.
“The ADA Does Not Protect Persons Who Have Erratic, Unexplained Absences, Even When Those Absences Are a Result of a Disability.”
So said the U.S. Court of Appeals for the Seventh Circuit, in finding that an employee was not qualified for her job based on attendance and performance reasons unrelated to her disability.
Background of the Case. In Stelter v. Wisconsin Physicians Service Ins. Corp., prior to sustaining a back injury at work, an employee was counseled for her attendance (for which she had repeatedly failed to provide notice) and performance issues. These issues continued following her return to work with no restrictions, and she was further counseled, placed on a performance improvement plan and then terminated. She sued, alleging discrimination and retaliation under the Americans with Disabilities Act.
The Court’s Decision. Stating that “the ADA does not shelter disabled individuals from adverse employment actions,” the Seventh Circuit found that the employee was not qualified for her job because of the documented attendance and performance issues, which predated her disability. It rejected the employee’s argument that the stated termination reasons were pretext for discrimination, and found that the employer honestly believed in the reasons. The Seventh Circuit went on to note that erratic absences for which no notice was provided – even if caused by a disability – are not protected by the ADA, asserting, “The fact is that in most cases, attendance . . . is a basic requirement of most jobs.”
Finally, the Seventh Circuit also rejected the employee’s claim that the employer had failed to provide reasonable accommodations because she failed to show that she had requested any accommodation. As the Seventh Circuit stated, “A plaintiff typically must request an accommodation for [her] disability to claim that [s]he was improperly denied an accommodation under the ADA.” (Emphasis in original).
Lessons for Employers. This case offers several points of significance to employers. First, an employee can be held accountable for providing proper notice of absences, even if the absences are due to a disability. Second, it is important to document performance and attendance issues, as such documentation will support an employer’s defense against discrimination claims. And third, an employer is not required to engage in an interactive discussion about reasonable accommodations unless an accommodation is requested or, under Equal Employment Opportunity Commission guidance, it is clear that the employee requires one.
EEOC Sues Yale Hospital Alleging Age/Disability Discrimination
The U.S. Equal Employment Opportunity Commission (EEOC) has sued Yale New Haven Hospital (YNHH) in federal court, charging that YNHH’s requirement that medical staff age 70 and older undergo cognitive testing violates federal anti-discrimination law.
The EEOC filed suit under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Title I of the Civil Rights Act, to correct unlawful employment practices on the basis of age, to redress interference with rights protected under the ADA, to stop medical examinations in violation of the ADEA and ADA, and to provide appropriate relief to aggrieved employees and individuals who were adversely affected by such practices.
In the pleadings, the EEOC alleges that YNHH has adopted and implemented what it calls a “Late Career Practitioner Policy” (“the Policy”). The Policy requires any individual age 70 and older (“age 70+”) who applies for, or seeks to renew, medical staff privileges at YNHH to take both an ophthalmologic and a neuropsychological medical examination. The EEOC further claims that individuals and employees younger than age 70 are not subject to this requirement.
The EEOC argues that by subjecting only age 70+ applicants to, and age 70+ employees of, YNHH to the Policy, YNHH violates the ADEA. The EEOC further argues that by subjecting its employees to the Policy, YNHH violates the ADA’s prohibition against subjecting employees to medical examinations that are not job-related and consistent with business necessity.
The EEOC alleges that because YNHH medical staff privileges are a condition of employment as a clinical faculty member of the Yale School of Medicine and other local employers, the Policy interferes with the enjoyment of rights protected by the ADA of Yale School of Medicine employees and other local medical employees.
The EEOC filed suit in U.S. District Court for the District of Connecticut (EEOC v. Yale New Haven Hospital, Civil Action No. 3:20-cv-00187). The EEOC seeks compensatory and punitive damages and injunctive relief, which includes the elimination of the Policy.
Mark D’Antonio, media relations for Yale New Haven Hospital, told OTW, “Yale New Haven Hospital’s late career practitioner policy is designed to protect our patients from potential harm while including safeguards to ensure that our physicians are treated fairly. The policy is modeled on similar standards in other industries and we are confident that no discrimination has occurred and will vigorously defend ourselves in this matter.”
YNHH is a 1,541-bed private, nonprofit teaching hospital located in New Haven, Connecticut. It is owned and operated by the Yale New Haven Health system. YNHH is the primary teaching hospital for Yale School of Medicine. “With two main campuses, Yale New Haven is the largest acute care provider in southern Connecticut and one of the Northeast's major referral centers.”
According to the EEOC press release, “The EEOC's New York District Office oversees New York, Northern New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire and Maine. The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.”
What fintech can — and can't — do for credit unions' ADA compliance woes
More credit unions are eager to improve the accessibility of their websites for those with disabilities but these upgrades aren’t always easy to accomplish.
Over the last few years, a number of credit unions have faced lawsuits claiming that their websites don’t meet the standards set out in the Americans with Disabilities Act and aren’t accessible for those who are blind, deaf or have another disability. This has forced the industry to rethink their digital offerings and whether they are easy to use for those with a disability.
But there are many factors to consider, such as finding the right fintech partner, when making these upgrades.
“I think the [credit union] industry thinks about [accessibility], I think it talks about it, but I’m not sure it knows what to do about it or how to use its collective purchasing power to make accessibility a priority,” said Mark Riccobono, president of the National Federation of the Blind.
Sixty-one million U.S. adults live with a disability, according to the Centers for Disease Control and Prevention. And a significant number of those with disabilities are underserved by financial institutions. Roughly 18% of those with a disability were unbanked in 2017, compared with less than 6% of individuals without a disability, according to a report from the National Disability Institute.
Those who are disabled and unbanked may lack access to the technology that would facilitate a banking relationship. Only 56% of households with a disability have access to the internet compared with 79% for nondisabled households, according to the report. Those with a disability were also more likely to use a teller and less likely to use online or mobile banking than their nondisabled peers.
The accessibility of a financial institution’s digital offerings could be a factor. Many credit unions have been hit with litigation that alleges their websites do not comply with the ADA. The lawsuits are derived from title three of the ADA, which prohibits discrimination for people with disabilities in places of accommodation.
A point of contention has been whether a financial institution's website counts as a place of public accommodation. Credit unions and other businesseshave argued that the ADA doesn’t apply to websites but other experts disagree.
“There is nothing by amendment or language in the Americans with Disabilities Act that specifically calls out websites or mobile apps or online banking or anything like that,” said Michele Landis, co-founder and chief revenue officer of Accessible360, a company that helps clients remediate their websites to improve accessibility. “But what we have is years upon years of case law. And that is why credit unions are paying attention to this.”
Some of these lawsuits have been dismissed for various reasons, such as the court finding that the plaintiff lacked standing to sue. But the litigation still raises important questions about whether credit unions are following the law and are being inclusive to all members.
As a result, many credit unions have turned to fintech companies and other partners to make their sites more accessible. But it’s a complicated process since CUs must consider a myriad of items when making their websites more inclusive.
Site presentation is a common place to start. Many institutions incorporate screen readers, adjustable font size and color layout for those with vision impairments. Mobile assistive technology, such as text-to-talk, assistive touch, voice control and screen magnification, are other standards that CUs should look to use.
In early 2018, Veridian Credit Union in Waterloo, Iowa, partnered with Siteimprove for a system that automatically scans its website each week for potential issues for screen readers. Siteimprove, which creates cloud-based products for websites, then sends the institution a report.
Prior to 2018, the $4.3 billion-asset credit union was conducting these scans manually.
“It was inefficient, and I don’t think we were catching as much as we should,” said Kristin Clark, Veridian’s manager of web development.
The Web Accessibility Initiative has put out standards, called the Web Content Accessibility Guidelines, that companies should meet. To earn the most stringent rating of Level AAA, companies must meet roughly 60 requirements. Most financial institutions, including Veridian, strive for the second highest rating, Level AA.
Meeting that level “allows the credit union to offer a consistent experience whether a user or visitor is using assisted technology and those who aren’t,” Clark said. The institution found that 15% of respondents to a quarterly member survey in 2019 identified as a person with a disability.
Once Veridian fixes an issue on a specific page, the CU re-runs the scan on the same page to confirm it has been addressed. The credit union also takes advantage of free plugins from Google Chrome to double check Siteimprove’s reports.
But using a scanning tool alone will leave a credit union vulnerable since it can only check about a quarter of the Web Accessibility Initiative’s accessibility criteria, according to Accessible360’s Landis.
"Relying on software to scan a website is just asking for trouble," said Eric Isham, founder and CEO of Omnicommander, a website designer that works with credit unions to improve accessibility. "Within the accessibility community, it is universally accepted that manual scans are the only way to ensure compliance. We utilize blind staff that use screen reader technology to be certain that the website is accessible."
Reports can return false positives and free tools used to crosscheck often return similar scores. In order for a credit union to fully cover its bases, Landis said that live-user audits, where a person or a team manually goes through a website, are a must.
“It’s the cost of doing business if you’re operating a credit union,” Landis said. “It’s well understood that digital accessibility is something that you need to pay attention to.”
Some CUs have a separate IT vendor that completes audits to make sure that all requirements from WCAG are incorporated since these guidelines are very specific, said Nicholas Santucci, an associate at Brownstein Hyatt Farber Schreck.
"The best practice is to have a manual element because if it's not fully compliant with WCAG guidelines, the credit union is the one that is liable, not the software company," Santucci added.
For credit unions looking to deploy new technology, Riccobono advises that they consider accessibility from the beginning.
“The reason that a lot of financial institutions have trouble keeping up with accessibility is because while they're working on accessibility, they’re continuing to onboard new products and services that aren’t accessible and that just doesn’t make sense,” he said. “There’s no way you’re going to build a 10-story building and then turn around later and say, ‘Oh shoot, we should’ve put in an elevator.”
Why Every Day Can Feel Like ‘Be Rude To People With Disabilities’ Day For Too Many Americans
Most Americans think they know a lot about people with disabilities, even if they admit to knowing very few. The truth is, a familiarity with guide dogs and white canes is about .01% of what there is to understand. Every person with a disability is unique. And if you have read a dozen or two comments circulating in the disability Twitterverse, you know that moments of respect, dignity and understanding can feel as though they are few and far between. The 30th anniversary of the ADA this year is an opportunity to educate leaders, managers, coworkers, customers and clients about basic disability etiquette. The goal: Weed out myths, change habits with facts and be sure your efforts at awareness are not lip service. Clearly state actions people can take after their awareness level is raised.
So, a few facts: 1 in 5 people or one. billion Americans has a disability. One in four people will experience a mental illness. Those numbers will grow exponentially by 2030. Guaranteed you will know or care for someone with a disability in the next decade. Still, even knowing these statistics it can be difficult to translate them into personal actions.
I tried an experiment in human behavior and was stunned at the results. I took one week to think about every time I interacted with someone with a disability. Was I acting fairly? Treating others with respect? Or did I just think I was? It was an eye-opening and humbling experience.
Here is the not-so-pretty truth, what I learned and what’s worth passing on to you:
Put Issues Into Words The solution is to speak and write about our anxiety and lack of awareness around the issue of disability in general. Conversations solve problems. Silence leads to fear and anxiety. Flagging our discriminatory actions and correcting them stops people from inadvertently bullying other people.