Settlement Agreement: Union Parish Detention Center
M&A Diligence Checklist: Don't Forget Website and App Accessibility
Lexology
Website accessibility/Americans with Disabilities Act (ADA) lawsuits, including class action claims, continue to flourish in state and federal courts.
The lawsuits target website and app owners and operators of all sizes, large and small, across industries including: retail, banking & finance, health/medical, travel, hospitality, restaurants, auto and education. A typical complaint alleges that because a particular website is not designed to work well with electronic screen reader technology, it discriminates against blind potential-users in violation of the ADA, Rehabilitation Act and/or equivalent state anti-discrimination laws.
United States: If You Snooze, You (May) Lose Under The FMLA And ADA, Says The Seventh Circuit
Mondaq News Alerts
In the recent case of Guzman v. Brown County, No. 16-3599 (March 7, 2018), the Seventh Circuit Court of Appeals affirmed a district court's grant of summary judgment to an employer on claims brought under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). The holding in the case is important because the Seventh Circuit confirmed a long-standing legal principle in an employer's favor and clarified that constructive notice (i.e., the employee does not provide actual notice, but the employer nevertheless should have known) of a serious health condition requiring FMLA leave is a narrow exception to the notice requirement under the FMLA. Specifically, the Guzman court held that employment decisions made before notice of a potential serious health condition are shielded from claims of discrimination, interference, or retaliation. The Guzman court also made clear that constructive notice of a serious health condition is limited to narrow situations involving "stark and abrupt change[s]" in an employee's behavior. In other words, ambiguous attendance issues by an employee most likely cannot serve as constructive notice of a serious health condition.
A flood of lawsuits demand websites accommodate the disabled
CBS News
Hundreds of companies are facing federal class actions filed in recent months alleging that their websites don't comply with the Americans With Disabilities Act(ADA) because people with physical challenges have difficulties using them. Among those being sued are Nike (NKE), Burger King, Hershey (HSY), Lord & Taylor and Pandora (P).
Under Title III of the ADA, it's illegal to discriminate against disabled persons "in the full and equal enjoyment of public accommodations." Applying that standard to websites is tricky because the 1990 ADA predated the Internet as a mass medium. U.S. Department of Justice officials announced in 2010 that they would provide guidance regarding the standards that websites would have to meet.
Lexology
Sometimes what you don’t know can help you. In Guzman v. Brown County, a 911 Dispatcher who was fired after being late repeatedly had her FMLA interference and retaliation claims sent to dreamland by the Seventh Circuit Court of Appeals. The Appeals court held that the moribund claim should stay that way because the Dispatcher could not show that she suffered from sleep apnea at the time of her termination or that the supervisor who made the decision to terminate her employment knew of her claimed history of apnea when he reached that conclusion. The Court also declined to resurrect her ADA claims for the same reasons.
Guzman started working as a dispatcher at the County’s 911 call center in 2002. In 2006 she was diagnosed with sleep apnea and treated for it. In 2008 she had gastric bypass surgery, which appeared to alleviate her sleep apnea. Shortly afterwards, she threw away her CPAP machine. In the second half of 2012 and early 2013 she was late for work on four occasions. After the fourth incident Guzman received a written warning that if she were late again, she could be fired.
Guzman was unable to comply and was, within days, late again. Her supervisor decided to fire her. Although she brought a doctor’s note to the meeting at which she was terminated, it said only that she “most probably” had sleep apnea and that she “needs to be re-tested and treated.” In the Seventh Circuit’s view, it was not clear from that note that Guzman even suffered from sleep apnea at the time she was fired. What was clear was that she was not receiving inpatient care for sleep apnea or receiving continuing treatment for it. Consequently, she did not show she had a serious health condition qualifying her for FMLA leave.
The court also put to rest the dispatcher’s argument that the County had notice of her FMLA claim at the time of her termination meeting.It was undisputed that the decision to fire had already been made by a supervisor who had no notice of her sleep apnea before the meeting at which she presented the note from her physician. For these reasons the Court declined to breathe life into her FMLA interference or retaliation claim. Her ADA discrimination and accommodation claims fared no better. The court did not need to reach the question of whether Guzman had a disability because the evidence was uncontroverted that her supervisor did not know that she had sleep apnea prior to deciding to fire her. As a result she could not prove that she suffered an adverse employment action because she was disabled or because of a requested accommodation.
MTA Faces Lawsuit Over Lack Of Elevator For Disabled Subway Riders In The Bronx
CBS New York
The U.S. attorney’s office has joined a lawsuit over the lack of an elevator for disabled riders.
As a man with disabilities, it’s hard for Daniel Porro to get up and down the steps at the Middletown Road subway station in the Bronx.
City of Detroit Lakes, Wadena involved in possible 'drive-by' ADA lawsuits
Perham Focus
The cities of Perham, Wadena and Detroit Lakes could be the latest victims in what some believe is a 'drive-by' lawsuit; in other words, lawsuits in which an attorney and/or their clients grab onto a certain type of case and seek to apply it up and down the road they travel. In this instance, the city of Wadena is being sued over allegations of handicap accessibility at the Wadena Municipal Liquor Store. The city of Detroit Lakes is being sued for similar allegations by the same plaintiff. The Perham Focus had learned that the same plaintiff has now slapped a similar lawsuit against a quick-serve restaurant in Perham, which has chosen to remain anonymous.
The plaintiff in the case is Aaron Dalton of Burnsville, Minn., who has been involved in numerous Americans with Disabilities Act compliance cases in recent years. Dalton claimed that he stopped by the Wadena store last summer and was unable to gain access with his motorized wheelchair. Dalton is seeking "nominal damages" and a judge's order to bring the liquor store into compliance with federal law.