Technical assistance about the ADA's Title II integration mandate and employment
Sharp Healthcare To Pay $90,000 To Settle EEOC Disability Discrimination Suit
Sharp Healthcare, one of the largest private employers in San Diego County will pay $90,000 and furnish remedial relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
Defense Strategy: Interactive Process Can Be Used To Defeat ADA Claims
Lexology
Most employers are well aware that the Americans with Disabilities Act (ADA) requires them to engage in an “interactive process” with employees or applicants who indicate they have a disability and may require some type of reasonable accommodation. However, engaging in that process can often be time-consuming, requiring repeated communications with employees or applicants, their medical providers, and possibly other medical providers.
Because of these hurdles, there is a tendency to want to streamline the process. However, a recent case in the 6th Circuit Court of Appeals demonstrates that following the interactive process can effectively shield an employer from liability; you should pay attention to the case and learn by example (Swank v. CareSource Management Group Co.).
Summary Judgment Affirmed for Defendant in Seventh Circuit ADA Suit
The National Law Review
In Wheatley v. Factory Card & Party Outlet, 826 F.3d 412 (7th Cir. 2016), the Seventh Circuit upheld the district court’s grant of summary judgment to the employer, Factory Card & Party Outlet (Factory Card) on a former-employee’s claim that she was wrongly terminated in violation of the Americans with Disabilities Act, 42 U.S.C. §12111(8) and 12112(a) because there was evidence that the employee was unable to perform the required functions of her position due to the necessity of a medical boot which did not permit her to walk or stand for a sufficient amount of time.
Lexology
In Parker v. Crete Carrier Corporation, et al, No. 16-1371 (October 12, 2016), the Eighth Circuit Court of Appeals held that a trucking company complied with the Americans with Disabilities Act (ADA) in requiring its drivers with body mass indexes (BMI) of 35 or above to undergo in-lab sleep studies to determine if they had sleep apnea, which could cause them to fall asleep at the wheel.
A Woman Says She Was Fired Over Her Breast Cancer Diagnosis
Yahoo News
A New Jersey woman is suing her former employer after she says they fired her a day after she revealed that she had been diagnosed with breast cancer.
Can a fired employee sue for discrimination based on obesity? It depends
Alaska Dispatch News
Q: I'm a small-business owner. I work directly with customers and rely on a full-time administrative employee to handle billing, filing, word processing and customer calls. When my long-term employee moved out of state last year after her husband lost his oil industry job, I placed an ad on Craigslist.
A stream of unqualified applicants and spam quickly overwhelmed me. I hired "Debi" because she had eight years of office experience, even though she seemed an unhappy person
I soon regretted choosing Debi but foolishly thought things would get better. Also, when I called my No. 2 candidate two weeks after hiring Debi, she'd already taken another job.
Long story short, things never got better. Debi was slow and she smoked and ate constantly. She weighs at least 300 pounds. I told her she couldn't smoke in the office, so she took breaks outside. Debi told me she only smoked twice a day for a "minute or two" but I kept a record showing it was four to eight minutes six to eight times a day. I docked Debi's pay, only to learn I couldn't because none of her smoke breaks were for more than 20 minutes.
When I told Debi she couldn't leave her desk except to use the restroom, she started smoking in there and the building's other tenants got angry. Three weeks ago, I fired Debi for low productivity.
Debi cried when I fired her and told me I was the reason she ate, that I never gave her a chance. She said I only fired her because she was fat.
Now I'm staring at a letter from her attorney, alleging I fired Debi for appearance reasons and that the Americans with Disabilities Act as Amended (ADAAA) protected obesity. I called him and said the problem was Debi worked too slowly. He told me I couldn't quantify that. I can't; I just know Debi's replacements works hard and fast. Does Debi have a case?
Companies Face Lawsuits Over Website Accessibility For Blind Users
Wall Street Journal
The disability lawsuits started hitting the Pittsburgh federal courthouse last July, all claiming corporations’ websites violated the law by not being accessible to the blind. The first round came against household names such as Foot Locker Inc., Toys “R” Us, Brooks Brothers Group Inc., and the National Basketball Association. Later suits targeted lesser-known retailers including Family Video Movie Club Inc. and Rue21 Inc.
Attorney: Don't reject applicants' requests or you could face legal trouble
Legal News Line
McDonald's has agreed to pay more than $56,000 to settle a discrimination lawsuit brought by the Equal Employment Opportunity Commission and create more accommodations for disabled applicants.
Digital Journal
Advocates for Individuals with Disabilities - Foundation ("AID.org") informs all individuals with disabilities who have experienced civil rights discrimination by businesses that violate the ADA in their parking lot that AID.org, at their expense and risk, will take on the fight for them. Just complete the simple form located at www.aid.org/membership-report-violation.html.
Lawyers fighting back over ADA lawsuits, want to force oversight
East Valley Tribune
The controversial AID Foundation is striking back at the state Attorney General’s Office, seeking an unusual court order to force the state agency into inspecting businesses periodically for violations of the Americans with Disabilities Act.
AARP Sues EEOC Over Wellness Program Rules
JD Supra (press release)
The American Association of Retired Persons (AARP), the nation’s largest consumer interest group for Americans over 50, is suing the Equal Employment Opportunity Commission (EEOC) over its new wellness program rules, which the AARP alleges violates rules protecting the confidentiality of medical information. The new rules were issued in May but do not take effect until 2017. The AARP is seeking a preliminary injunction to block the new rules. The case, filed October 24, in Federal District Court in Washington is AARP v. EEOC.
Kingman settles federal disabilities act lawsuit
Topeka Capital Journal
A city in south-central Kansas has settled a lawsuit involving a federal act on accessibility for the disabled.
The city of Kingman recently settled the case over the Americans with Disabilities Act and the Rehabilitation Act of 1973, The Hutchinson News reported (http://j.mp/2eYEDwu).
The settlement stems from a case filed in federal court in October 2015. In the settlement, the city denies violating the law but authorizes payment to two Kingman residents who use wheelchairs.
Under the settlement, the city will pay the two residents, David Lemen and Theodore Osborne, $1,500 each, and will pay their lawyer, David Calvert of Wichita, $10,000 for prosecuting the action and monitoring the city’s compliance with the agreement.
One More Medical Provider Settles ADA Lawsuit
Lexology
Well, another healthcare provider has settled an ADA suit filed by the EEOC. Don’t medical and healthcare folks know by now that protecting people with disabilities in hiring and employment is one of the six priorities set forth by the EEOC in its Strategic Enforcement Plan (“SEP”)?
And we know how the EEOC loves to target health care providers for violations of the ADA.
Employer Had Implied Knowledge of Employee's Need for ADA Reasonable Accommodation
JD Supra
Since the inception of the Americans with Disabilities Act, the Equal Employment Opportunity Commission has taken the position that employees can trigger the Act’s reasonable accommodation obligations without having to ask for an accommodation by name. If the employer has knowledge of the employee’s medical condition and a reasonable basis for understanding that the employee is seeking an accommodation, it can be found liable for failure to provide such accommodation. A decision earlier this month from the Eighth Circuit Court of Appeals illustrates how an implied request for accommodation can arise.
In Kowitz v. Trinity Health, the employee had recent neck surgery and had returned to work with certain medical restrictions. Her employer advised her that her CPR certification needed to be updated, and she responded that she could not complete the recertification process until her physical therapy was completed. The employer terminated her for failure to obtain the CPR recertification without exploring accommodations. She sued, claiming failure to provide a reasonable accommodation under the ADA.
The employer argued that the employee was not entitled to any accommodation because she had never asked for one. The district court agreed, dismissing the claim on summary judgment. In a 2-1 opinion, the Eighth Circuit reversed this decision, remanding the claim for jury trial. The majority opinion concluded that the employer was aware of the plaintiff’s medical condition. Her linking of her inability to complete the CPR certification to her need for physical therapy acted as a request for accommodation. Taking into account all of the facts available to the employer, the employee did not need to ask for an accommodation to trigger the defendant’s ADA obligations.
The dissenting judge stated that even in a situation where the employer is aware of the employee’s medical condition, she must request some type of assistance to invoke the ADA’s accommodation obligations. The majority opinion recognizes that in some situations, this request can be implied from the parties’ interactions. If an employer knows of an employee’s medical condition and suspects that work problems result from the condition, it should engage in the accommodation process regardless of whether the employee specifically requests assistance.
Sharp Healthcare Settles Disability Discrimination Lawsuit
Patch.com
San Diego-based Sharp Healthcare will pay $90,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission, the agency announced today.
According to the EEOC, Sandra Juarez applied for a surgical scrub technician position at the Sharp Memorial Outpatient Pavilion in 2012, and was offered the position contingent upon passing a medical examination.
Sharp rescinded the offer after the exam due to a perceived disability involving a minor ankle ailment that would not have affected her job performance, according to the EEOC. A few months later, she was hired into the same position at another medical facility.
As part of the settlement, Sharp will retain an external equal employment monitor; review and revise disability accommodation policies and practices to comply with the Americans with Disabilities Act; provide annual disability discrimination training for employees, supervisors and managers who are involved in the accommodation process; post an employee notice; and undertake record keeping and reporting to the EEOC.
The external equal employment monitor will review Sharp's policies and practices and assist the healthcare provider with ADA compliance.
"We have seen an increase in employers failing to comply with the Americans with Disabilities Act,'' said Anna Park, a regional attorney for the federal agency. "We encourage employers to ensure proper training regarding the hiring process to prevent disability discrimination and possible legal liability.''
Law firms file and settle dozens of ADA suits claiming websites aren’t accessible to the blind
ABA Journal
Since the beginning of 2015, more than 240 businesses have faced federal lawsuits claiming their websites are inaccessible to the blind in violation of the Americans With Disabilities Act.
The suits often settle quickly for between $10,000 and $75,000, with most of the money being used to cover attorney fees and expenses, the Wall Street Journal reports. The law firm Seyfarth Shaw had tallied the lawsuit numbers.
Telework Under The ADA & Other Nondiscrimination Laws
Mondaq News Alerts
A workforce that adheres to a traditional work style, or a consistent eight-hour workday in the same location – with no offsite work or interaction with business colleagues or customers – is increasingly becoming a relic in many settings. Whether at a coffee house, commuter train, airport lounge, or soccer field, transactions, communications, and decisions take place on a range of devices away from the brick-and-mortar jobsite.
While there may be many practical advantages for companies considering implementing flexible work, employers should be cognizant of whether telework will be a good fit for their company culture and the needs of their market or audience. In addition to these practical considerations, employers should also consider how agile work and employee requests to work from home implicate obligations under employment laws – specifically the Americans with Disabilities Act (ADA) and other non-discrimination laws.
In this first in a series of Littler Reports on Telework, we discuss the evolution of telework, practical considerations for employers, and certain legal implications — particularly involving employee requests to work remotely as an accommodation under the ADA.
Service Dog Case Draws Skepticism From Both Sides At The Supreme Court
WBHM
At the Supreme Court on Monday, the justices heard arguments in the case of a girl with disabilities, her service dog and the school that barred the dog from the premises.
Moving From Disability to Possibility
JAMA: The Journal of the American Medical Association
Man suing the city of Trinidad over lack of accessibility
FOX21News.com
A Colorado man is suing the city of Trinidad over a lack of accessibility.
He says the city is violating his civil rights and the Americans with Disabilities Act.