Tennessee Federal Court Axes ADA Anxiety Discrimination Claim And Grants Summary Judgment To Employer Against The EEOC
Seyfarth Synopsis: In an EEOC disability discrimination lawsuit alleging that an employer failed to accommodate and then wrongfully terminated a laundry technician with anxiety, the U.S. District Court for the Middle District of Tennessee granted the employer’s motion for summary judgment, holding the EEOC did not establish that the employee was disabled for purposes of the Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”).
This ruling provides insight for employers relative to defending ADA lawsuits where the alleged disability may be questionable.
The New Class Action Risk: Gift Cards Without Braille
There has been a very recent wave of class action lawsuits against restaurants, retail merchants, and other businesses claiming discrimination against the visually impaired and blind for failure to print braille information upon gift cards. We provide a quick update below.
These new lawsuits are based upon the Americans with Disabilities Act (ADA), which prohibits disability discrimination. All employers are certainly familiar with Title I of the ADA, which prohibits disability discrimination in employment. Aside from Title I of the ADA, Title III of the ADA seeks “full and equal enjoyment of the goods and services . . . of any place of public accommodation” for people with disabilities and requires private businesses that serve as places of public accommodation to remove “access barriers” that limit disabled individuals.
When the ADA was first signed into law in 1990, the lawsuits claiming ADA violations largely focused on physical access barriers to businesses, such as not providing a wheelchair ramp or an elevator. A few years ago, the concept of “access barriers” expanded to include websites. For instance, thousands of lawsuits were filed by blind persons alleging that websites were not accessible to them.
It appears we are at the beginning of a new wave with gift card lawsuits. Over the past two weeks, several lawsuits have been filed against retailers, restaurants, and other merchants for failing to provide gift cards that are accessible to the visually impaired. At least eleven major chain stores in the Eastern District of New York and at least another eight in the Southern District of New York have been sued for not providing braille gift cards. Like the web accessibility lawsuits, these new lawsuits are filed against businesses by a handful of “serial plaintiffs” usually represented by the same small group of law firms.
The unavailability of braille gift cards is an easy target for the plaintiffs’ bar. Most businesses do not offer braille gift cards. With the plaintiffs’ bar’s tendency towards serial Title III litigation, there will likely be more gift card accessibility lawsuits.
In light of the recent lawsuits, businesses need to be mindful of whether their gift cards can pose a problem for the visually impaired. There may be legal defenses to these lawsuits, but as of yet there is little judicial precedent related to ADA gift card claims. As a practical matter, having a braille gift card option for purchase or making all gift cards braille friendly should alleviate the potential risks of class action litigation.
New Twist in ADA Claims: 60+ Class Actions Filed Over Gift Cards Without Braille
On October 24, 2019, Gottlieb & Associates, a plaintiff's firm well-known for bringing scores of website accessibility cases, filed over 60 class actions in the Southern and Eastern Districts of New York against retailers and fast food restaurants. These nearly identical 23-page complaints allege violations of the Americans with Disabilities Act (ADA) and similar state laws based on retailers' failure to emboss the issuer of the card as well as the denomination of the card in Braille on their gift cards. The exact manner in which plaintiffs sought out the gift cards is vague, likely by design. Plaintiffs each allege that they "contacted" defendants and were told that defendants did not offer gift cards with Braille, and that, after this contact with defendants, plaintiffs "could not locate Braille store gift cards offered by the defendant[s] for sale to purchase the same because they are not offered by the defendant[s]."
On these facts plaintiffs allege that defendants, whose stores are considered places of public accommodation under the ADA and New York law, failed to provide sight-impaired individuals with equal access to the privileges and services offered by these establishments. Specifically, the defendants did not make available "appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disability."
The lawsuits assert liability for violations of three separate statutes – the ADA, New York State Human Rights Law (NYSHRL), and New York City Human Rights Law (NYCHRL). Because the New York state law claims are governed by the same standards as the ADA, a successful defense under the ADA should apply to the state law claims predicated on the same facts. Rodal v. Anesthesia Group of Onondaga, P.C., 369 F. 3d 113, 117 fn. 1 (2nd Cir. 2004); see also Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 fn. 3 (2d Cir. 2006) (NYSHRL claim "survives or fails on the same basis as [an] ADA claim.")
A threshold question in these cases is whether the ADA and state laws even apply. While there are no published decisions directly on point (unsurprising, given this novel interpretation of the ADA), there is authority that suggests that the ADA does not stretch so far as to cover the conduct complained of in these suits. The ADA's auxiliary aid requirement, which requires places of public accommodation to offer "brailled materials and displays" in certain circumstances, has been interpreted by the Department of Justice to be a flexible standard, allowing retailers discretion to "choose among various alternatives as long as the result is effective communication." (28 C.F.R. § Pt. 36, App. C. emphasis added).
In addition to the potential legal deficiencies of these suits, they also pose a bevy of practical conundrums. These suits assume, among other things, that all gift cards are issued in pre-set denominations. Although some retailers carry gift cards in pre-set denominations, there are just as many, if not more, that only offer gift cards in the increments requested by customers at the point of sale. Moreover, these suits fail to consider that many restaurants and retailers offer their gift cards for sale over the internet on websites that are ADA compliant.
It does not escape notice that these new suits make ample use of the photocopier despite one New York federal judge recently dismissing a Gottlieb website case and concluding that "those who live by the photocopier shall die by the photocopier." Mendez v. Apple Inc., No. 18 CIV. 7550 (LAP), 2019 WL 2611168, at *4 (S.D.N.Y. Mar. 28, 2019).
Given the cash cow that website accessibility claims have been for the plaintiff's bar, aided by the lack of any clear standards for compliance, this new wave of access suits underscores that novel iterations of ADA claims will continue.
Ensuring an Accessible Kiosk Experience
Restaurants are increasingly reliant on self-service technology to improve the customer experience. From handheld or desktop tablets used to collect payment to kiosks used for self-service ordering, technology allows restaurants to provide a variety of options to customers to enhance their visit. However, it is incumbent upon restaurants to provide an accessible and equal experience for all their customers when utilizing these new technologies.
ADA Website Litigation Likely to Increase
There has been considerable confusion amongst business owners as to the requirements of the Americans with Disabilities Act (ADA) as it relates to websites. The ADA requires, among other things, that places of "public accommodation" remove barriers to access for people with disabilities. This law has long been understood to apply to brick-and-mortar establishments, such as restaurants, retail stores, and hotels, but recent court decisions have held that the ADA applies to the websites and mobile applications of businesses offering goods and services online.
The Department of Justice (DOJ), which is responsible for establishing regulations pursuant to the ADA, has thus far failed to issue any guidance, regulations, or technical standards for online platforms, resulting in uncertainty for many business owners. Many have looked to the case of Robles v. Domino's Pizza, LLC for potential guidance. Robles was filed by a blind man who claimed that he could not access the Domino's website and mobile app with his screen-reading software. The District Court dismissed the case on the basis that, although the ADA applied to the website and app, the DOJ's failure to provide guidance as to the ADA's application to websites violated Domino's due process rights. The Ninth Circuit reversed this ruling, and on October 7, 2019, the U.S. Supreme Court denied a petition by Domino's Pizza asking the Court to review the Ninth Circuit's decision.
The Supreme Court's refusal to review the Ninth Circuit decision maintains the uncertainty in what will no doubt be an expanding field of litigation. Business owners should expect to see an increase in ADA website litigation, and should take steps to ensure that their websites and mobile apps are accessible to disabled users.
Haro Bicycle faces class-action lawsuit over its website
Haro Bicycle Corp. is one of thousands of companies dealing with lawsuits over their websites' compliance with the Americans With Disabilities Act.
A Brooklyn, New York-man who is legally blind is the lead plaintiff in a class action lawsuit filed last week against Haro in the U.S. District Court for the Southern District of New York. The man, Valentin Reid, says Haro is violating the ADA because one of its websites, ridedelsol.com, is not accessible to the blind.
Reid is the lead plaintiff on at least four other similar suits filed in the court last week, and legal experts say thousands of such suits have been filed in recent years. One source counted over 2,200 such suits filed in 2018, a 177% increase over the year prior. Haro is likely not the first bike-related company to be sued over website ADA compliance, but the suit is the first against a bike company that BRAIN has found through online court filing searches.
Don’t Stress - Anxiety May Not Always Be A Disability Under the ADA (US)
On October 22, 2019, a Tennessee federal district court dismissed a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) under the Americans with Disabilities Act (“ADA”) against West Meade Place LLP (“WMP”), a skilled nursing facility, after finding on summary judgment that the EEOC failed to establish that former WMP employee Carma Kean was disabled, as that term is defined under the ADA.
In EEOC v. West Meade Place LLP, the EEOC, acting on behalf of Ms. Kean, alleged that she had anxiety and that during “flare-ups” of this condition, she was unable to work. The EEOC alleged that WMP violated the ADA because it failed to accommodate Ms. Kean’s condition by providing her with requested time off work, and also engaged in disability discrimination when it terminated Ms. Kean’s employment.
In order to establish a prima facie case of a failure to accommodate or other disability discrimination claim, a plaintiff must first establish that the employee is or was disabled at the time of their employment. The ADA defines a disability to be either: 1) a physical or mental impairment that substantially limits one or more major life activities; or 2) having a record of such an impairment; or 3) being regarded as having such an impairment.
The EEOC argued that Ms. Kean’s anxiety rose to the level of a disability under the first definition by relying in large part on a physician’s note Ms. Kean provided to WMP that stated Ms. Kean “could not work” during her anxiety flare-ups. However, during the physician’s deposition, he failed to provide any medical basis for his diagnosis that Ms. Kean had anxiety – instead, he appeared to rely merely on Ms. Kean’s own representation that she had previously been diagnosed with anxiety by another physician. The physician also could not support his assessment that Ms. Kean could not work during flare-ups; when asked why he stated that she could not work, he responded that Ms. Kean had asked him to say that. The physician indicated he felt he could not “say no” to her request. When asked to define the symptoms of anxiety, the physician generally identified “nervousness” and “apprehension.” The court noted that the physician did not testify that anxiety generally, or specifically in Ms. Kean’s case, created any substantial limitations to a major life activity. Because of this, the Court found that the physician’s note was insufficient to support the EEOC’s claim that Ms. Kean’s anxiety constituted a disability under the ADA.
Further damaging the EEOC’s case was Ms. Kean’s own testimony, in which she failed to identify any major life activities that were substantially limited by her anxiety. Instead, she testified that she did not have any such limitations, and had only one day when she could not work due to her condition. The EEOC asserted that the fact that Ms. Kean was prescribed medication for anxiety indicated that the condition was a disability. However, the court rejected this argument, indicating that this also did not establish that her condition caused a substantial limitation to a major life activity. In essence, the court appeared to draw a distinction between more commonplace or “garden variety” anxiety that can be uncomfortable, but not substantially limiting to major life activities, and more severe, potentially debilitating mental disorders.
The EEOC also argued that WMP terminated Ms. Kean’s employment because it regarded her as being disabled due to her anxiety. To establish its “regarded as” ADA claim, the EEOC was required to prove that WMP took action against Ms. Kean based on a perceived impairment. The court noted that neither the employer’s knowledge that plaintiff sought leave under the Family & Medical Leave Act nor plaintiff’s own report to her employer that she had anxiety were enough to establish that WMP believed Ms. Kean was impaired. In fact, the court highlighted a supervisor’s testimony stating that she, too, had anxiety, but that it was not, in fact, an impairment to her.
The ADA’s broad, inclusive definition of the term “disability” – particularly after the ADA Amendments Act’s passage in 2008 – make it understandable that employers are often overinclusive in categorizing employees as disabled under the ADA, particularly when dealing with employees’ mental health or other conditions, the severity of which is not easily assessable. Although this case does not necessarily provide a bright line test to for employers to use, it does reinforce the principle that not all mental health diagnoses qualify as a disability. When working with employees who request accommodations due to conditions that are not self-evident, employers should require the employees to provide medical documentation that substantiates the severity of their condition, including what if any substantial limitations to a major life activity are caused by the condition, before concluding that the condition rises to the level of a disability under the ADA.
Federal judge says CTA bus driver fired after 9 years on medical leave has work to do in ADA lawsuit
A former Chicago Transit Authority bus driver who spent nine years mostly on approved medical leave before he eventually was fired will have to do a better job in a third attempt to sue the CTA, a federal judge recently ruled.
Even if former bus driver Quentin Platt does file another, better amended complaint, it may have been too late all along to file any lawsuit, U.S. District Court Judge Mary M. Rowland, on the bench in Illinois' Northern District, said in her 13-page opinion and order.
"Platt's second amended complaint does not allege enough facts for the court to determine whether his claims have been timely asserted," Rowland said in her opinion and order issued Oct. 22.
Employer May Need to Consider More Than Employee’s Requested Accommodation
A recent case highlights both that employers may not simply refer employees to the employee handbook in response to a request for accommodation and that they may need to consider accommodations beyond simply the one requested by a disabled employee.
In Garrison v. Dolgencorp, LLC, a “key holder” employee, who was required to be present at either the opening or closing of the store, requested a leave of absence for her medical condition from her manager by several text messages and in person. The manager responded that she should “read the employee handbook” and that leave was not available. After yet another request for medical leave was denied, the employee quit and sued under the Americans with Disabilities Act.
The U.S. Court of Appeals for the Eighth Circuit found that a jury could find that the employer had violated the ADA by failing to provide a reasonable accommodation. Although the employee did not specifically request an “accommodation,” no “magic words” were needed. Rather, she had put the employer on notice that she needed an accommodation by informing her manager of her medical condition, her doctors’ visits, and by repeatedly requesting leave.
Once the employer knew of the employee’s need, it was required to engage in the interactive process to identify a reasonable accommodation. The Eighth Circuit specifically noted that referring the employee to the employee handbook was not enough. Moreover, had the employer engaged in the interactive process, it might have identified a reasonable accommodation; “After all, [the employer] was only obligated to provide a reasonableaccommodation, not the particular one [the employee] requested.”
Disability Risk Creates ‘Catch-22' for Workers in Bias Cases (1)
A railroad didn’t violate federal law when it refused to hire an obese applicant because of the risk of possible health issues. And another employer could fire a worker before a trip to Africa where she potentially could catch Ebola.
These two recent federal appeals court rulings add to growing precedent that says future disabilities aren’t covered by federal anti-discrimination law.
This interpretation clashes with the advocacy of the U.S. Equal Employment Opportunity Commission, which has brought at least one case arguing a worker doesn’t need to have a current physiological disorder to be protected under the Americans with Disabilities Act. At least five appeals courts have confronted this issue and ruled for the employers, providing latitude in hiring and firing of workers for potential disabilities.
The U.S. Court of Appeals for the Seventh Circuit was the latest to rule on the issue Oct. 29, with a decision in favor of Burlington Northern Santa Fe Railway Co. BNSF refused to hire applicant Ronald Shell because of the risk of obesity-related medical problems, including sleep apnea, diabetes, and heart disease. Shell originally charged that obesity alone should be considered a protected disorder, an argument several appeals courts—including the Seventh—have rejected. The EEOC has advocated for that position, aligning with medical- and science-based groups that say obese individuals need protections.
In the BNSF case, the EEOC argued that not hiring a worker because of fears that his obesity would lead to future disabilities should be considered disparate treatment based on “perceived impairment” covered under the ADA’s “regarded as” provision. That means a qualified individual could only be excluded from the position if he posed a direct threat to health or safety.
The agency’s Office of Legal Counsel said in a statement that its “position is that the statute’s protections can apply if the individual is discriminated against based on this type of employer fear of a future impairment, even absent a prior or present impairment.”
The holding in the Seventh Circuit is problematic and results in “a classic ADA Catch-22” that allows the employer to argue the person doesn’t have a disability and yet base its decision on that very concern, said Robert Dinerstein, a law professor at the Disability Rights Law Clinic at American University.
The Eleventh Circuit also recently came to this conclusion, in a case brought by the EEOC against STME LLC, a company that owned a Tampa, Fla.-based Massage Envy location in Florida. The appeals court in September ruled that the agency couldn’t press claims on behalf of massage therapist Kimberly Lowe who was fired for refusing to cancel a trip to Ghana because her employer feared she would contract the rare but deadly Ebola virus. Likewise, the court ruled that the ADA doesn’t protect against discrimination based on the perception of a potential future disability.
In the Massage Envy case, the EEOC said its position is that the statute should apply to the worker because of an ADA provision prohibiting discrimination based on an individual’s association with an individual with a disability. That includes situations such as an employer taking adverse action against someone who did volunteer work for people with AIDS and the action was motivated by that relationship.
The EEOC’s Office of Legal Counsel provided a statement via email and said the same should apply case “to protect an individual from job discrimination arising from ill-informed employer fears about the employee’s associates.”
The two rulings joined similar holdings in the Eighth, Ninth, and Tenth circuits.