ADA in the News November 12, 2020

Statement of Interest: Betancourt-Colon v. City of San Juan

Tenth Circuit Reverses Itself: Adverse Action Not Required To State ADA Failure-To-Accommodate Claim

Sitting en banc, the Tenth Circuit Court of Appeals recently ruled that an adverse employment action is not a required element of a failure-to-accommodate claim brought under the Americans with Disabilities Act (“ADA”). In Exby-Stolley v. Bd. of Cty. Comm’rs, No. 16-01412 (10th Cir. Oct. 28, 2020) (“Exby-Stolley II”), the majority of the court ruled that a plaintiff bringing a failure-to-accommodate claim does not have to show he or she experienced a significant change in employment status such as firing, failing to promote, reassignment with different responsibilities, or a change in benefits over and above the alleged failure to accommodate her disability. The ruling reversed a prior decision by a panel of the court.

Despite the lengthy majority and dissenting opinions generated in the case (some 135 pages in total), last week’s ruling is unlikely to have a major impact on ADA litigation. That’s because the vast majority of ADA claims arise when an employee is fired because he is unable to perform the essential functions of the job, yet the employee contends a reasonable accommodation would have been possible. In all those cases, the employee has been discharged—a clear adverse employment action.

The rule in Exby-Stolley II comes into play in the rare ADA case where an employer refuses to provide a requested, reasonable accommodation and simply leaves it at that, perhaps because the employer is fine with the disabled employee’s limited or diminished work performance. Exby-Stolley II confirms that an employer in that situation may be exposed to liability under the ADA because the failure to accommodate is itself discriminatory. To use the court’s language, the failure to provide a reasonable accommodation—even absent some other adverse action—prevents a disabled individual from “fully participating in society” or achieving her “full professional potential.”

Utica settles lawsuit regarding accommodations at City Hall for disabled

The City of Utica will renovate City Hall to better accommodate people in wheelchairs after settling a recent lawsuit, according to an announcement by city officials.

The Utica officials said that resident Travis Woods, who uses a wheelchair, was unable to access the restrooms, service counters, dropboxes and other features at Utica City Hall last year, so he said he contacted an attorney because the lack of access is in violation of the Americans with Disabilities Act (ADA).

The attorney, from Bizer & DeReus, of New Orleans, wrote a letter to Utica’s ADA coordinator demanding changes to City Hall — but city officials noted that Utica does not have an ADA coordinator.

Officials said the demand letter was ignored and Woods and his attorney filed a lawsuit against the city in September 2019.

Officials said the lawsuit was settled in August with the city agreeing to make the necessary renovations to City Hall. As part of the settlement, the city will also pay Woods $20,000 in damages, officials said.

“Every time a wheelchair user like myself encounters architectural barriers, it feels like a giant ‘you’re not welcome’ sign,” Woods said in a statement following the settlement. “The City Hall should never make any members of its community feel unwelcomed or excluded.”

Sacramento Car Dealership Sued by EEOC for Disability Discrimination

Used car dealers Victory Automotive Group, Inc. and Cappo Management XXIX, Inc. violated federal law the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today when they fired a title clerk at Harrold Ford, one of their Sacramento dealerships shortly after learning she was undergoing testing for cancer.

According to the EEOC’s lawsuit, the joint employers terminated the employee because they regarded her as disabled. After missing several days of work due to a sudden illness, the employee informed her supervisor of her hospitalization and testing for cancer, and her plan to return to work a few days later. Soon after, she received a termination letter which stated that her termination was not performance-related and advised her to “focus on her health.”

Such alleged conduct violates the Americans with Disabilities Act (ADA) which prohibits employers from firing a qualified employee due to an actual or perceived impairment. The EEOC filed suit (EEOC v. Cappo Management XXIX, Inc. et. al., 2:20-cv-02245-MCE-KJN) in U.S. District Court for the Eastern District of California after first attempting to reach a pre-litigation settlement through its voluntary conciliation process. The EEOC seeks monetary damages as well as having the defendants provide training on anti-discrimination laws, posting of notices at the work site, and other injunctive relief.

“This employee worked successfully for several months but was terminated when her employer learned she was being tested for cancer,” said EEOC San Francisco Senior Trial Attorney James Baker. “It is illegal for employers to reflexively fire employees after learning of a medical condition.”

William Tamayo, the EEOC’s San Francisco District director, explained, “Congress enacted the ADA to prevent disability discrimination so that employees can continue to be productive members of the workforce.”

Kansas man and daughter file ADA complaint against Freeman Health System

A Pittsburg man and his daughter have filed a complaint with the ADA against Joplin’s Freeman Hospital after an incident in August.

Bob McLachlan’s daughter, Shannon, has his medical power of attorney. So when he went in for a surgery at Freeman Hospital West in August, she came down from Idaho to be there. Shannon has a disability and has a service dog to help her. Bob was expecting his daughter to see him in his room after his surgery, but found out, she’d been asked to leave. “I had just come out from anesthesia, but I knew well enough that this was a public access area, and by Federal regulation, her dog is allowed in public access areas.

House Passes Bill With Broader Requirements For Accommodating Pregnant Workers

Currently, it is illegal for employers to discriminate against women because they are pregnant under the Pregnancy Discrimination Act (“PDA”). However, the PDA does not affirmatively require employers to provide reasonable accommodations to all pregnant employees. Courts interpreting the PDA have held that a pregnant employee who can show that her employer denied her an accommodation, while accommodating others with similar limitations, could make out a claim of discrimination if the employer’s explanation for refusing to accommodate the employee was shown to be pretextual.

This case law, as well as guidance from the Equal Employment Opportunity Commission (“EEOC”), provides a framework for analyzing these types of pregnancy discrimination claims. But many questions still remain regarding the extent of pregnant workers’ rights to a reasonable accommodation in certain circumstances, including when their pregnancy-related limitation does not rise to the level of a disability under the Americans with Disabilities Act (“ADA”).

The PWFA seeks to fill in some of these gaps. If enacted, the PWFA would provide an affirmative right to an accommodation for all pregnant workers, regardless of whether their pregnancy-related limitation rises to the level of a disability, who work for employers with more than 15 employees. More specifically, employers would be required to provide accommodations related to pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship.

Employers and employees would be required to engage in the “interactive process” required by the ADA to agree on a reasonable accommodation. The PWFA would further prohibit employers from taking an adverse action against employees because of their need for an accommodation or from retaliating against an employee that has engaged in protected activity.

If passed, employers may need to adjust their current employment practices and policies to ensure compliance with the PWFA. Employers should also be aware of state and local laws that may already provide for similar protections for pregnant workers.

County settles lawsuit with deaf woman for $150,000

BAKERSFIELD, Calif. (KGET) — The county has reached a settlement with a deaf woman who said she was refused an American sign language interpreter following her arrest in 2017.

A federal judge dismissed the lawsuit last month after attorneys for plaintiff Jennifer Mello and the county said the case had been settled. Terms of the settlement were not disclosed in public court documents, and attorneys from both sides could not immediately be reached Monday morning.

On the evening of Nov. 30, 2017, deputies arrived at Mello’s apartment for reasons not stated in the complaint. Mello told the deputies she was deaf, and requested an interpreter or to communicate with them through writing, but deputies refused and arrested her, the suit said.

Mello was booked, X-rayed and given a clothing search and body check, all without an interpreter to communicate with her, according to the suit. She remained in custody until Dec. 5, where she appeared in court, again without an interpreter, and was released.

The suit, filed in 2018, alleged civil rights violations, as well as violations of the Americans with Disabilities Act and the Rehabilitation Act.

Is Your Business Adequately Providing Accommodations in the Wake of the Pandemic?

The COVID-19 pandemic has disrupted many aspects of our daily lives, including how we socialize and interact with others in public. By now, we are all very familiar with the Centers for Disease Control and Prevention (CDC) recommendations to mitigate the risk of exposure to and spread of COVID-19 by avoiding handshakes and hugs, social distancing, wearing a mask, limiting contact with surfaces and washing your hands as often as possible (or using sanitizer when soap and water are unavailable). These new social norms have not only impacted how we interact with family and friends, they have also impacted how we shop for goods and inquire about services offered by businesses.

In fact, due to these changes, many businesses have pivoted and are now heavily relying on websites and mobile applications for customers to purchase goods and services. And the businesses that have reopened their doors to customers have also adjusted the in-person shopping experience to account for the new social norms. Regardless of whether your business is focusing on online sales, app purchases or in-person services, you must not ignore the need to accommodate customers (and employees) with disabilities while complying with the CDC's guidance. Not only is it legally required that your businesses are accessible, but it is good for business to provide accessible shopping experiences given the number of Americans living with a disability, which the CDC estimates is 61 million adults. The CDC also reports that 13.7 percent of these individuals have difficulty walking or climbing stairs, 6.8 percent have difficulty running errands alone, 5.9 percent have difficulty hearing and 4.6 percent have difficulty seeing even with glasses (or are blind).

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities and requires accessibility in places of public accommodation. While the ADA does not define "places of public accommodation," it provides examples including hotels, restaurants, theaters, hospitals, and insurance offices. Ultimately, if your business is open to the public and you have customers on your premises, your business may be considered a place of public accommodation that must comply with Title III. Even if you do not have a "physical location" that is open for customers, your mobile applications and websites might be considered places of public accommodation. Litigation has increased in the last several years to determine whether (and if so, how) Title III applies to businesses' mobile applications and websites. Federal circuit courts are currently split on when apps and websites should be considered "places of public accommodation." To date, the Third, Sixth, Ninth and Eleventh Circuit Courts of Appeals have held that goods and services provided by a public accommodation through a website may fall within the ADA if they have a sufficient nexus to a physical location. Whereas the First, Second and Seventh Circuit have found that a website can be a place of public accommodation independent of any connection to a physical space. It is important to research the law in your respective jurisdiction(s) to discern whether your websites or applications might be covered by Title III.

Regardless, given the CDC recommendations and the increased reliability on mobile applications and websites to purchase products, now is the time for businesses to consider ways to make their premises and technology accessible to their customers and employees who may be living with a disability or other impairment. For example, you may want to consider how to increase accessibility for your mobile applications and websites; how to follow the CDC social distancing guidelines while maintaining accessibility to those with disabilities; whether to modify physical barriers (e.g., parking lots, service counters, bathroom stalls); how to ensure accessible common use circulation paths for employees and how to provide accessible means of ingress and egress to the building. Consult a Title III ADA expert to ensure that your business adequately accommodates disabled individuals.

Attorney behind ADA lawsuits disciplined

An attorney behind 270 lawsuits under the Americans With Disabilities Act (ADA) has been publicly reprimanded by the Minnesota Supreme Court.  

The Top 9 Things Retailers Need to Know About Service Animals

Pandemic Pups. Covid Pets. Whatever name you choose, the story is the same. Quarantine and work-from-home have led thousands to become new dog owners. And, they are getting used to having their dogs with them all the time. Many of these new (and old) dog owners are going to want to bring their canine pals with them to stores, restaurants, and other venues that normally ban pets.

These fake service dogs present problems and pitfalls to the responsible business owner. Does she put up with a misbehaving and possibly dangerous animal or does she risk liability under the Americans with Disabilities Act (ADA) for denying access to a legitimate service dog/handler team? This article will answer some of the questions that business owners may have with respect to service dogs and the federal laws regulations addressing access for legitimate service dogs and their handlers.

What laws apply? 

For retail businesses and restaurants, the most relevant federal laws are Titles I and III of the ADA, which prohibit discrimination against people with disabilities in terms of employment and access to public accommodations and commercial facilities.[1] States may also have laws that are applicable to service dogs.

What is a service dog?

In the past, identifying legitimate service dogs, such as guide dogs, was uncomplicated. In the last few decades, dogs have been trained to assist with a wide range of disabilities, many of which are “invisible disabilities.” They can alert handlers to imminent issues with diabetes or the presence of allergens; they can assist a handler during a seizure; and they can help with psychiatric or neurological disabilities, including panic disorders and PTSD. The list is growing as we learn more about the capabilities of dogs.

Under the ADA, a service animal is defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[2] The service dog must be trained to perform a specific task that is “directly related to the individual’s disability.”[3] Providing comfort, emotional support, or companionship are not work or tasks under the law. Thus, just because having the dog near or petting it provide a sense of well-being and calm does not make him a service dog. However, service dogs can be trained to sense the signs of an oncoming panic or anxiety attack and to take actions to avoid or lessen the severity and impact of the attack, including by preventing self-harm.

Do local bans on dangerous dog breeds apply to service dogs? 

No. The federal regulations do not contain any breed restrictions and are deemed to trump any local laws or regulations.[4] Similarly, weight and size restrictions do not apply to service dogs.

Where can a service dog go? 

Almost anywhere. In general, service dogs are permitted to accompany their handlers in all areas of a place of public accommodation where members of the public may go. This means they may go in stores, restaurants, hotels, fitness facilities, hospitals, and more. Service dogs may be excluded where their presence would “fundamentally alter” the nature of the services provided to the public.[5] For example, a service dog would not be permitted in an operating room that requires sterility. Similarly, they are not allowed in swimming pools at hotels or gyms because of hygiene concerns. They are allowed on the pool deck, however.

What if I have an employee or patron who is allergic to or afraid of dogs? 

Allergies or fear of dogs on the part of employees or patrons are not valid reasons for denying a service dog/handler team access to a business.[6]

Does a service dog have to wear a vest or tag identifying it as a service dog? 

There is no legal requirement that a service dog wear any special vest, patch, or harness. In most cases, the service dog should be leashed or tethered to its handler. Most service dog handlers will use a vest with patches identifying the dog as a service dog. These vests and patches are readily available on line, however, and fake service dogs will likely have them as well.

Is there a certificate or license indicating that the dog is a service dog? 

There is no required certification or licensing requirement for service dogs under the ADA and asking for such documents is not permitted under the Act.[7] Neither are there legally required ID cards for service dogs, even though they are freely available on the internet for a fee. Importantly, the prevalence of “ID cards” or certificates by fake service dog owners has caused many businesses to incorrectly believe that such identification exists and to refuse service to a disabled person who cannot provide the requested documents, putting the business at risk of fines or other legal action for violating the rights of the disabled customer.

How can a business owner determine if a dog is a legitimate service dog?

Legitimate service dogs will be well-behaved; they will not be lunging at people or real service dogs, barking uncontrollably, or trying to eat food off the table in a restaurant. And, they are unlikely to be riding in a shopping cart. A legitimate service dog handler would be mortified if her dog were acting in such a manner.

If the handler’s disability is not readily apparent, there are only two questions you may ask to determine if the dog is a legitimate service dog.

  • Is the animal required because of a disability?
  • What work or task has the animal been trained to perform?[8]

You may not ask what the disability is. Nor may you ask the dog’s handler to demonstrate the work or tasks. If the handler’s disability is readily apparent, you may not ask the two questions.[9]

When can I ask a someone with a service dog to leave my establishment? 

This is a bit of a trick question. While there are circumstances when you can ask to have the dog removed, you cannot remove the owner without providing the owner an opportunity to obtain the goods, services, or accommodations without the animal.[10] You can ask for a dog to be removed if the animal is misbehaving and the owner is not addressing the issue.[11]

Benefits of Web Accessibility in UX Design

Your website or app is the digital representation of your business. This is where people will access your content, products, and services online. The digital world is a great way to expand your business’ reach.

Unfortunately, there’s a high possibility that one out of five Americans are unable to enjoy your products and/or services. That’s 10% of total online spending that you’re missing out on. If you wish to ensure that you are always able to provide equal access and opportunity to all customers, you need to invest time, money, and effort in web accessibility.    

What is web accessibility?

Web accessibility is grounded in the idea of universal design. This means that digital products and services are designed in such a way that they are useful and usable for everyone, regardless of their abilities. For example, web page accessibility ensures that a person with a hearing impairment must be able to access all the content on your website, including video content.

The Americans with Disabilities Act

The Americans with Disabilities Act, or ADA for short, is a civil rights law that was enacted in 1990. This law was created to protect people with disabilities against discrimination. It ensures that these individuals can access and enjoy the same goods and services provided to the general public.

Section 508

Section 508 of the Rehabilitation Act states that all Federal government agencies in the U.S. must develop, procure, maintain, and use Electronic and Information Technology (EIT) that is accessible to all, including people with disabilities. For example, any software utilized by a federal agency must be compatible with adaptive equipment, allowing employees and members of the public with disabilities to use them.

World Wide Web Consortium

The World Wide Web Consortium, also known as W3C, is an international community of organizations belonging to different IT industries. It was created by Tim Berners-Lee, the creator of the World Wide Web, in 1994. The purpose of this community is to improve the World Wide Web. This includes creating standards for web accessibility, ensuring that all web browsers provide equal access to everyone.

Voluntary Product Accessibility Template

The Voluntary Product Accessibility Template, also known as VPAT, is a self-disclosing document used by vendors of Information and Communication Technology (ICT). This document evaluates the accessibility of the product according to the standards set in Section 508 of the U.S. Rehabilitation Act of 1973. Vendors use it to inform buyers on how their product complies with the requirements of Section 508.

Applying web accessibility to UX design

W3C created web accessibility guidelines in order to help developers create web content that is accessible to all. Some of these guidelines are listed below:

Enable keyboard navigation for web design

Not everyone can navigate a website using a mouse. To ensure equal access to your website, you should incorporate keyboard access in the design. This means that any user can use his keyboard to interact with the various functionalities of your website. For example, using the Tab button to navigate the menu bar.

Prioritize text clarity

The text on your website must be easy to read for your content to be accessible to all. One way to ensure text clarity, is to make sure that your text and its background are easily distinguishable. The web accessibility guidelines provide a recommended minimum contrast ratio that you can follow. You should also make sure that your text size is adjustable, allowing readers to choose the size of their text for easier reading.

Don’t rely exclusively on color

Not everyone can distinguish colors easily. In fact, almost 10% of the population is color blind. While color is a great way of providing information on your website (i.e. red for error), some people may find it difficult to perceive this information. To ensure accessibility, you should provide other cues that users can rely on to interpret information such as meaningful labels (e.g. exclamation points for error messages) and text.

Order content in HTML for screen readers

Screen readers present content to its user in a linear fashion. This means that you should always keep in mind how screen readers will be “reading” your content when you’re structuring your website or writing your source code. The reading order of your content should match the meaning intended by the author to avoid confusing the user.

Explanatory link text

Screen readers usually inform their users when it comes across a text with a link by stating “link” before reading the text. For example, if the word “products” has a link, it will say “link products.” To make it easy for users to distinguish one link from another, you should make sure that you use explanatory link text on your website. Doing so allows users to skim your content, going from one link to another, without becoming confused or feeling frustrated.

Use a 44×44 pixel clickable area for touch controls

According to the web accessibility guidelines, the clickable area for touch controls and pointer interaction must be at least 44 × 44 CSS pixels. This allows all individuals to be able to easily activate targets such as buttons or anchor links, even those with limited dexterity or small screen size.

Do not forget to follow the accessibility checklist

Ensuring accessibility for all is not easy. There is a lot of ground to cover and guidelines to follow. Images, text elements, color, video, audio, site structure, navigation, etc. Because of this, it can be easy to overlook one or more accessibility issues. To ensure your compliance, use an accessibility checklist based on the WCAG standards provided by the W3C.

Accessibility and usability

According to the official ISO 9241-11, usability is defined as “the extent to which a product can be used by specified users to achieve specified goals with effectiveness, efficiency and satisfaction in a specified context of use.” In other words, your website or digital product must be easy to use and enable your users to accomplish their goal.

Accessibility, on the other hand, is just one of several factors that impact the usability of a digital product or website. When you design a website with accessibility in mind, you are ensuring that anyone can visit the website, navigate it, interact with it, and understand its content regardless if they have a disability.

Usability guidelines

The U.S. Department of Health & Human Services created the Web Design and Usability Guidelines that serves as a source of all the best practices in usability for website and application design. These guidelines consist of 18 chapters. The topics discussed within include software, navigation, hardware, lists, links, and test appearances.

Usability testing

Usability testing is a method that aids developers and organizations in evaluating ease of use. It requires you to allow actual users or customers to try out the website or application while you observe their behavior and take note of their feedback. Usability testing removes biases that you may get from developers, designers, and project managers. It also highlights any issues or problems that will need to be fixed before the website or product can be launched.

How accessible web design can lead to better user experience

Web accessibility and UX go hand in hand. By creating a website that is accessible to everyone, you provide a better user experience to all. This is because accessibility benefits everyone. For example, creating captions for a video on your website allows people with hearing difficulties to consume the content. It also enables anyone who needs to watch the video on mute to get the same information.

Another good example is high-contrast text. While this will help people who have a visual impairment read text more easily, it also benefits users with perfect eyesight. Not only is the text easier to read for them under normal circumstances, it also enables them to still access the same content when looking at your website under bright sunlight.

What is accessibility guide and accessibility statement

Accessibility guide and accessibility statement illustrate your company’s clear commitment to ensuring that everyone enjoys the same access and opportunities on your website. An accessibility guide provides users with information on how to use adaptive equipment on your website. It also provides them with alternative, temporary solutions if you have yet to achieve 100% web accessibility. an accessibility statement shows the public the policies and goals you have created as well as the actions you have taken to ensure web accessibility.


Great user experience is usability, accessibility, and aesthetics. Making your website look good is easy. Making sure that your website has all the elements it requires to make it accessible and easy to use for all–not so easy However, it’s an investment worth making because we all know what great user experience provides, namely, competitive advantage, customer acquisition and retention, and increased savings, all of which result in a successful business.

Accessibility For All: Ada Compliance Is Good For Business And Humankind

I magine this scenario: you walk up to a new pizza shop, ready to satisfy your hunger with a slice; only to find that there’s an obstacle course you have to overcome in order to even place your order. Do you attempt the course, or simply find another pizzeria that is easier to access? As marketers, we would never want potential customers to leave our clients’ websites to go off to the competition, just because they do a better job of providing the much-needed resources and provisions to conduct business. Instead, we would consider ways to optimize the service design of getting that slice. Of course, there would be the handicap-accessible ramp to get in the door. If the store is really forward thinking, they might have a kiosk with audio cues to assist with their order. At the very least, and if all else fails, there would most likely be an employee available to help the customer place their order.

This kind of scenario happens on a daily basis in our digital world where customers are left to their own devices to navigate the virtual spaces that we create for them. Except that the obstacles may come through as features or functionality that are unusable to an end user simply because the site was not designed with accessibility in mind, rendering the interface incompatible with the user’s assistive device. Or perhaps the obstacle is an inability to get through content for users that rely on their keyboard versus a mouse to navigate a site; so instead of providing a linear flow of content, it’s more like a game of whack-a-mole with the cursor keys.

Whatever the case, these scenarios show missed opportunities to connect with potential new users—or a whole new segment of users—and other people that have interests like you and me. That’s basically what’s going on throughout the Web, because so many brands have yet to catch up to the Web Content Accessibility Guidelines (WCAG), for digital inclusion and accessibility for all users.

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