Plant manager's alleged comments about driver's arthritic knees may suggest pretext in 'regarded-as' lawsuit
Though a truck driver and his plant manager offered differing versions of what was said about the driver's arthritic knees during his termination meeting, a triable issue existed as to whether the decision not to recall him following seasonal layoffs was an attempt to insulate the company from further liability because his medical impairment put him at a higher risk for injury. Denying the employer's motion for summary judgment on his "regarded-as disabled" claims brought under the ADA and the Pennsylvania Human Rights Act, a federal magistrate judge in Pennsylvania rejected the assertion that the driver was required to show that his impairment substantially limited a major life activity since the ADA Amendments Act of 2008 (ADAAA) removed that requirement. ( Wilders v Quikrete Companies, Inc, WDPa, March 12, 2019, Mitchell, R.)
The Americans with Disabilities Act Prohibits Hostile Work Environments, Second Circuit Rules
The National Law Review
On March 6, 2019, the U.S. Court of Appeals for the Second Circuit decided Fox v. Costco Wholesale Corporation, eliminating any uncertainty concerning whether an employee can assert a hostile work environment claim under the Americans with Disabilities Act (ADA). The court’s ruling is clear: “hostile work environment claims are cognizable under the ADA.”
Settlement Agreement: Hawaii Department of Public Safety
City settles another ADA lawsuit
Colorado Springs Independent
The City of Colorado Springs has settled a class action lawsuit by committing to installing over 15,000 accessible curb ramps throughout the city in the next 14 years, the plaintiffs, Paul Spotts and Sharon King, stated in a news release.
Curb ramps provide people with mobility impairments a safe way to get on and off sidewalks as they travel through the pedestrian right of way.
"Federal and state disability access laws were enacted decades ago to provide persons with disabilities an equal opportunity to fully participate in civic life," said plaintiffs' counsel and co-founder of the Civil Rights Education and Enforcement Center Tim Fox. "Today, we stand together with the City of Colorado Springs to fulfill the promise of those laws."
The city also settled an Americans with Disabilities Act lawsuit last September, brought by Christopher and Nikole Sweeney, by paying $19,000.
Protocall Communications, Inc. to Pay $31,000 to Settle EEOC Disability Discrimination Lawsuit
According to the EEOC's lawsuit, Protocall officials at its Laurel, Md., headquarters asked the employee with dyslexia if she had a learning disability. When she said she did, the director of human resources told her there was no point in continuing the training and denied the employee's request to be allowed to take the script home to practice it and instead fired her, refusing to provide a reasonable accommodation to a telemarketer trainee.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and requires employers to provide a reasonable accommodation to individuals with disabilities. The EEOC filed suit (EEOC v. Protocall Communications, Inc., Civil Action No. 8:18-cv-02535-TDC) in U.S. District Court for the District of Maryland, Baltimore Division, after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.
In addition to the $31,000 in monetary relief to the employee, the two-year consent decree resolving the suit provides substantial equitable relief, including prohibiting Protocall from denying reasonable accommodations or violating the ADA. The company will distribute its policies and procedures prohibiting disability discrimination and addressing reasonable accommodations to all employees and newly-hired employees. Protocall will train all managers, supervisors and human resources personnel on the ADA and its reasonable accommodation requirements. The company will report to the EEOC on how it handled any internal complaints of discrimination. Protocall will post a notice about the settlement and post notices required by EEOC regulations.
Mid South Extrusion to Pay $70,000 to Settle EEOC Disability Discrimination Lawsuit
According to the EEOC's lawsuit, Mid South fired Jeffrey Wyant because he has a lung impairment. The suit alleged that in June 2015, Wyant began having breathing problems at work and saw several doctors, as a result of which he learned that he had health issues, including reduced breathing capacity in his lungs. In response, Mid South became concerned with Wyant's breathing issues and decided that working in a plastics manufacturing facility would be harmful to his health. Immediately after a coughing incident he had at work in September 2015, Mid South fired him. The EEOC determined that Wyant was terminated on the basis of disability, about one year after being hired.
Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (Civil Action No. 3:17-cv-01229-TAD-KLH) in U.S. District Court for the Western District of Louisiana, Monroe Division, after first attempting to reach a pre-litigation settlement through its conciliation process. Mid South denied liability. The parties agreed to resolve the dispute by entering into a two-year consent decree.
On March 22, 2019, U.S. District Judge Terry A. Doughty signed and entered the decree. In addition to the monetary award for Wyant, the decree provides for significant non-monetary relief, including an injunction prohibiting any future discrimination. Mid South is also bound under the decree to develop an effective policy to protect applicants and/or employees from any form of disability discrimination in the future, including making an intensive individualized assessment in consultation with the employee, and, if need be, his or her treating physicians, to determine if the employee can perform the essential functions of the job and to determine if he or she is a safety threat.
Additionally, the decree requires that Mid South provide training about its policies and the ADA's requirements. Mid South will report to the EEOC on its compliance with the decree and post an "EEO Is the Law" poster for the employees and/or applicants to be aware of their rights.
EEOC Sues Goodwill Industries for Failure to Provide Disability Accommodations
According to the EEOC's lawsuit, the employee, as a result of his cognitive disability, had trouble navigating certain interactions with other employees and members of the public and needed additional training or job coaching to properly understand the rules he was required to follow. Instead, the EEOC said, his supervisor gave him written warnings, which the employee was unable to read or understand. When the employee said that he needed someone to explain the warnings to him, the supervisor disregarded the request. As a result, the employee continued to experience the same difficulties and was ultimately fired, the agency charged.
Under the Americans with Disabilities Act (ADA), when an employer is aware that an employee with a disability needs an accommodation in order to perform the essential functions of his job, it must provide an accommodation, unless doing so would be an undue hardship. An accommodation may include job coaching, additional training, modifications to the employer's standard operating procedures, or other measures that would allow the employee to do his job successfully. The employer is required to engage in an interactive process with the employee to determine if there is a way to accommodate the employee's disability.
Blue Cross/Blue Shield of Texas to Pay $75,000 to Settle EEOC Disability Discrimination Lawsuit
According to EEOC's lawsuit, Sheryl Meador, who is deaf, applied through an online process for an open claims examiner position. After submitting her resume, Meador was invited to complete a 35-minute assessment exam that included an audio portion. The audio portion was inaccessible to Meador, because it contained no captions or other visible accommodations for applicants with hearing impairments. Because of her disability, Meador was unable to complete the audio portion of the exam, and thus, she was unable to complete the application process.
According to the EEOC's suit, filed in U.S. District Court for the Northern District of Texas (Civil Action No.3:17-CV-02626-D), Meador contacted BCBS and informed the company's recruiting coordinator of her disability and requested a reasonable accommodation for the audio portion of the assessment exam. However, before Meador could obtain a reasonable accommodation, the company stopped communicating with her. Meador made repeated attempts to follow up with the company's human resources staff to no avail. As a result, she was not able to complete the application process and was denied hire.
The EEOC charged in its suit that BCBS's failure or refusal to hire Meador, a qualified individual with a disability, violated the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employers to make reasonable accommodations to employees' and applicants' disabilities. The EEOC brought its suit after first attempting to reach a pre-litigation settlement through its conciliation process.
"Like so many other people with or without disabilities, Ms. Meador just wanted the opportunity to work," said EEOC Trial Attorney Heather Nodler. "She was well-qualified for this position, irrespective of the nature of her disability. Unfortunately, however, the application process became a needless roadblock to her employment."
Best practices for tackling absence, disability management
HR Dive
A large conference room at the Society for Human Resource Management's (SHRM) Employment Law and Legislative Conference grew stuffy and crowded yesterday morning as HR professionals snagged every last table, chair or open spot of carpet to catch a session on absence and disability management.
It's perhaps no surprise the session attracted an army of HR pros — recent research revealed 60% of employers earned a grade of C, D or F at managing employee absence and disability. As attendees responded to the speaker, Ogletree Deakins Office Managing Shareholder Gregory J. Hare, with comments and questions, they put the research's findings in context: absence and disability management is tough because each employee brings forth a unique request, and some abuse the system. That's why a posse of attendees flocked around Hare after the presentation to seek his advice about the situations frustrating them at work and why others later joked that FMLA, an acronym for the Family and Medical Leave Act, really stands for the Friday and Monday Leave Act.
City councilman calls for revision of agreement with Bird scooters
KOMU 8
City officials granted Bird a contract to operate in Columbia upwards of five months ago, but the company is struggling to keep one of it's promises: to ensure that scooters aren't left in places that create accessibility barriers.
"The biggest complaint is that the scooters are parked on the path of travel and in the middle of the sidewalk," said Michael Edwards, the Missouri Coordinator at the Great Plains ADA office. "For someone using a wheelchair it's very hard for them to go around and try to move that."
Indianapolis man denied entry to concert because of service dog
EastTexasMatters.com
An Indianapolis man is calling for change after he was turned away from attending a concert because of his service animal.
The bar doesn't allow animals; however, the law says the man and his dog should have been let in. According to the Americans with Disabilities Act, anywhere the general public is allowed, so are service animals.
Gates Chili Central spends $609000 in 7-year fight over disabled girl's service dog
Rochester Democrat and Chronicle
The ongoing battle between the Gates Chili Central School District and the U.S. Department of Justice over a service dog for a special needs child has so far racked up more than $600,000 in legal fees.
The feds got involved because they allege the district's actions run afoul of the Americans with Disabilities Act.
Harassment - It's Not Just About Sex
Lexology
Harassment claims continue to dominate the legal news, but the Second Circuit recently reminded us that workplace harassment extends far beyond sex and gender.
The Circuit recently joined several sister circuits recognizing that a plaintiff can pursue a claim for harassment based on disability under the Americans with Disabilities Act (“ADA”), clearing up any doubt regarding the Circuit’s position on the matter. Fox v. Costco Wholesale Corp., No. 17-0936-cv (2nd Cir. March 6, 2019). The Circuit also made such claim easier to prove, finding that a plaintiff is not required to set forth the exact number of times actionable comments or conduct occur to demonstrate that the alleged harassment was “severe and pervasive.”
Make affordable housing accessible
Colorado Springs Independent
As the Independent recently covered in their in-depth series exploring the region’s affordable housing challenges, finding affordable housing these days in El Paso County is growing increasingly difficult. Now imagine how hard it is for individuals with disabilities, including senior citizens, to secure housing that’s both affordable and accessible.
The ADA defines an individual with a disability “as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.” Individuals with disabilities account for more than 20 percent of the population. It’s the largest minority group in the United States, and it is the only minority group that any of us can join at any time. So we cannot have a legitimate, comprehensive conversation about affordable housing without also talking about accessible housing.
Advocate For Those With Disabilities Urges Business To Embrace Diversity
WGLT News
One of the few women with disabilities to compete in the Miss America pageant said the conversation about people like her is changing in the United States.
Nicole Kelly was born with just one hand and said the internet has allowed geographically separated communities of people with disabilities to be created. But, the former Miss Iowa said that alone is not adequate.
"That connection is only highlighting the rights for which we still fight and the places we have to go. Statistically people with disabilities have about a 70 percent unemployment rate, and that's a really large percentage," said Kelly.
Kelly said the focus is turning to how to get people active and companies not only ADA compliant but ADA friendly.
NYC Agrees To Make All Sidewalk Curbs Accessible To The Disabled
Gothamist
In a landmark victory for disability rights advocates, the de Blasio administration has agreed to survey and ensure that all of the city’s roughly 162,000 sidewalk curbs are accessible for New Yorkers with mobility and vision-impairment issues.
A U.S. District Court judge on Tuesday issued preliminary approval of a settlement that resolves two class action lawsuits brought by disability rights activists, the first going back as far as 1994.
Susan Dooha, the executive director of the Center for Independence of the Disabled, the lead plaintiff in the most recent case from 2014, called the agreement with the city “long overdue.” Her organization sued the city for violating the Americans with Disabilities Act after finding that more than 75 percent of the 1,066 curbs in Lower Manhattan had barriers that presented safety hazards for those with mobility and vision issues. More than a quarter had no curb cut whatsoever.
Advocates, businesses say ADA causes trouble for disabled in digital world
UPI.com
As more tasks of daily life migrate online, more advocates are getting serious about holding businesses responsible for making their websites accessible to Americans with disabilities -- an issue industries say is not made clear by a 29-year-old federal law.
Recently, U.S. courts have seen an uptick in lawsuits filed by disabled Americans -- and they're winning. The suits are part of a sustained effort to force companies and organizations to come into compliance with U.S. disability law -- even though it's not clear exactly what that entails.
This is why presidential campaigns shouldn't overlook ADA accessibility
The Gazette: Eastern Iowa Breaking News and Headlines
When Harry Olmstead arrived last week to a campaign stop in Iowa City, he was disappointed to find the basement venue, where 2020 presidential hopeful Andrew Yang was speaking, accessible only by stairs.
Olmstead, who uses a wheelchair, said he returned home when he could not access the Iowa City Yacht Club’s basement, where Yang participated in a March 13 Political Party Live podcast recording.
An advocate for a more accessible community, Olmstead said his experience was not unique. With several downtown businesses accessible only by stairs, he often tries to reach out to campaign and event organizers beforehand to ask about accessibility.
It’s a barrier Olmstead and other Iowans hope to address as the caucus season begins. They argue that a candidate stopping in Iowa should do everything in their power to make sure all can attend.
“So I’ve been kind of a saddle sore for a lot of candidates,” Olmstead said. “A candidate needs to instruct their campaign staff, particularly their campaign manager, to get the word out to areas they will be going to and let them know that if they’re going to have a meet and greet or a fundraiser, it needs to be accessible so people with disabilities can also go.”
PTSD sufferer's FMLA suit reinstated
Business Insurance
A former financial services worker who claimed her supervisor helped trigger her post-traumatic stress disorder won reinstatement of a Family Medical Leave Act retaliation charge, although a federal appeals court upheld dismissal of a disability discrimination charge.
Cindy Tinsley was hired by Nashville, Tennessee-based Caterpillar Financial Services Corp. in 1997 and promoted to a business system analyst position in October 2013, according to Wednesday’s ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Cindy Tinsley v. Caterpillar Financial Services Corp.
Is Obesity A Disability Under The ADA?
JD Supra
As with so many ADA questions, “it depends.” However, a pair of cases pending before the 7th Circuit Federal Court of Appeals (covering Illinois, Indiana, and Wisconsin) could provide further guidance.
The 7th circuit has not definitively ruled on whether obesity alone is a “disability.” Federal appellate courts for the 2nd, 6th, and 8th circuits (covering NY, CT, and VT; KY, MI, OH, and TN; and AR, IA, MN, MO, ND, NE, and SD respectively) have all concluded obesity is not a disability unless it is linked to some other disabling condition. In the first of two pending appeals, the trial court reached the same conclusion, ruling that “severe obesity” alone is not a disability under the ADA. (Note, Michigan state law prohibits discrimination based on body weight and a handful of municipalities have passed similar measures.)
But, employers should proceed with caution. Obese employees have defeated motions for summary judgment by arguing their employers regarded them as disabled, and any adverse action taken on the basis of that perception violated the ADA. This is precisely what happened in the second case pending before the 7th circuit.
The plaintiff, who weighed 331 pounds and had a BMI of 47.5, was excluded from his position based on a policy forbidding anyone with a BMI over 40 from working in a safety sensitive role – a policy the employer argued was necessary because those with a BMI over 40 have a substantially higher risk of developing medical conditions which can cause sudden incapacitation or impairment.
The court denied summary judgment concluding it was unlawful to act on the belief that potential future disabilities pose a present safety risk.
Best practices:
- Remember the ADA’s statutory definition of “disability” includes those who have an impairment that substantially limits major life activities and those who are “regarded as having such an impairment.”
- Ensure that all job qualifications – including those designed to ensure safety – are necessary and narrowly tailored to the requirements of the particular job at issue.
- Focus on the duties of the position. Can the applicant or employee perform the essential functions of the job safely? If not, could he with a reasonable accommodation? If the accommodation at issue is not particularly onerous, it may make sense to provide it despite uncertainty about whether the individual truly has a disability. An individual who cannot perform the essential functions of a position with or without reasonable accommodation is not a “qualified individual” and cannot sustain an action under the ADA.
- When in doubt, treat the individual, at least preliminarily, as if he has a disability. Don’t assume there are no medical conditions beyond excess body weight. Engage in an interactive process to determine whether the individual has a disability, and don’t take a final adverse action until the individual has had an opportunity to provide relevant facts, including evidence of a disability.
Ten Steps To Comply With The ADA's Interactive Process
JD Supra
Many employers would appreciate a clear road map when traveling the often winding roads of reasonable accommodations under the Americans with Disabilities Act (ADA). However, there are no rigid routes for the interactive process. After an employee requests an accommodation, the employer must engage in a good faith and flexible dialogue that addresses the employee’s specific medical limitation, request, job position, and work environment, among other factors. That said, employers can find guidance in at least ten hard and fast rules on the reasonable accommodation process:
- An employer’s statutory duty to provide reasonable accommodations may begin before the employment relationship even forms. If an applicant requests reasonable accommodations to enable participation in the hiring or interview process, an employer must provide an accommodation unless doing so poses an undue hardship.
- Generally, an employer’s duty to engage in the interactive process is triggered whenever it learns that an employee needs an accommodation. Courts give employees wide latitude in how they make this known. The employee need not make the request in writing, identify a specific accommodation, or use specific terms such as “disability,” “ADA,” or “reasonable accommodation.”
- To start the interactive process, the employer should gather information from the employee, including the specific nature of the limitation, the specific difficulty or issue that the employee is experiencing at work, and what sort of accommodation the employee is seeking.
- An employer may require that the employee provide documentation from the medical provider most familiar with the employee’s disability in order to confirm the employee’s specific limitations and need for accommodation.
- Once the employer receives this medical documentation, it should ensure that any subsequent requests for updated records are reasonable and do not create an undue burden on the employee. For example, rather than requesting updates on a weekly basis, an employer may seek updated medical information at a time that coincides with an employee’s next scheduled appointment if the doctor’s assessment may change at that time.
- Employers should keep all information collected from employees about their disabilities and need for accommodations confidential. All medical documents should be maintained in a standalone file separate from the employee’s personnel file.
- The employer should also be collecting information on its end as it reviews the information submitted by the employee. For example, the employer should be reviewing the essential functions of the employee’s position and the employee’s ability to perform those functions, and determining which reasonable accommodations, if any, would enable the employee to perform his or her job. An employer need not provide an immediate response to an employee’s request for accommodation, but it must address the request promptly and keep the employee informed of any updates in the process to ensure there is open communication. Document all communication throughout the interactive process.
- The goal of the interactive process should be to allow the employee to perform his or her existing job through a reasonable accommodation. However, even if this outcome is unfeasible, the interactive process is not over. Employers should then consider if they can accommodate the employee through reassignment to a different vacant position for which the employee is qualified or through a temporary leave of absence.
- An employee is entitled to a reasonable and effective accommodation – not necessarily the accommodation of his or her choice.
- If an employer is able to reasonably accommodate an employee, it is advisable to keep the interactive process open even after the accommodation is implemented. The employer should reach out to the employee to ensure that the accommodation was provided as discussed and that it is indeed effective in enabling the employee to perform his or her job.
Lawsuits: Domino's, Playboy websites aren't accessible to blind users
Detroit Free Press
In thousands of cases that are testing the limits of the law and cyberspace, businesses are increasingly facing lawsuits that contend their websites aren't accessible to people who are blind and are in violation of federal disability mandates.
"Blind people want access like everybody else does," said Michael Powell of Warren, who has been visually impaired since birth. "We have screen-reading software, and it doesn't cost a lot of money to make a website accessible."
Sacramento airport lawsuit: Don't leave disabled behind in emergency evacuation
Sacramento Bee
In what disabled rights advocates call a “groundbreaking” deal, Sacramento International Airport officials have agreed to make changes to Terminal B to accommodate disabled people – including rewriting the airport’s emergency evacuations plan so that disabled people are not left behind if disaster strikes.
Airport officials also have agreed to conduct training of airport employees on how to identity and assist disabled people in cases of emergency, including terminal evacuations.
The agreement ends a 6-year-old lawsuit brought by the California Foundation for Independent Living Centers and Ruthee Goldkorn, an airport user. Disability Rights Advocates represented the plaintiffs.
Job Applicants and the ADA
Lexology
Does the Americans With Disabilities Act (ADA) apply to job applicants as well as employees? Yes, indeed!
One employer, an international customer service support provider for electronic devices in Nashville, Tennessee, just learned this lesson as it paid up $50K in a settlement with the Equal Employment Opportunity Commission (EEOC) for rejecting a paraplegic job applicant.
Here’s how the scenario rolled out according to the EEOC’s lawsuit: the company sought to hire a bunch of customer care representatives; the plaintiff applied for this position online and was qualified for the position. Excited about the plaintiff’s application—she was allegedly qualified for the position after all—the company called the plaintiff to discuss her availability for the position…and learned the plaintiff was paralyzed from the waist down.
The Time Crunch on Standardized Tests Is Unnecessary
The Atlantic
The allegedly fraudster parents in the cheating scandal exploited extra-time accommodations. Could slowing down tests for everyone make them fairer?