Failure-to-accommodate plaintiffs need not prove an adverse action
Reversing and remanding for a new trial, the Tenth Circuit sitting en banc has found error in a district court's jury instruction requiring an employee to establish that she suffered an adverse action in order prevail on her failure-to-accommodate disability discrimination claim. The appeals court examined the text of the ADA, its own precedent, failure-to-accommodate decisions of other circuit courts, and EEOC guidance in determining that a failure-to-accommodate plaintiff is not required to make an adverse action showing. The district court improperly read the ADA's reference to "terms, conditions, and privileges" language in the ADA as synonymous with "adverse action" and erroneously imposed this requirement. (Exby-Stolley v Board of County Commissioners, Weld County Colorado, 10thCir, October 28, 2020, Holmes, J.)
Northwest Wireless to Pay $175,000 to Settle EEOC Disability Discrimination Lawsuit
Northwest Wireless Enterprises, LLC, an exclusive T-Mobile retailer, will pay $175,000 to a former employee to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
According to the EEOC’s lawsuit, a sales associate at Northwest Wireless’s Spanaway, Wash., store had a congenital hearing impairment. The employee learned that her store manager told other co-workers that he was tired of repeating himself to her and that he wanted to fire her. She filed an internal discrimination complaint and eventually complained to the CEO/owner of Northwest Wireless, providing written statements from co-workers corroborating the manager's derisive comments. Despite her internal discrimination complaint and her above-average sales performance, Northwest Wireless fired her without warning a month after her complaint.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from discriminating based on disability and retaliation for complaining about it. The EEOC filed suit seeking relief on her behalf in July 2019 after first attempting to reach a pre-litigation settlement through its conciliation process. (EEOC et al. v. Northwest Wireless Enterprises, LLC, No. 3:19-cv-05696-BHS-MLP in U.S. District Court for the Western District of Washington). The employee intervened in the EEOC’s lawsuit after it was filed, bringing additional claims under federal and state law
Under the two-and-one-half year consent decree settling the suit, approved by the court, Northwest Wireless Enterprises, LLC will pay the former employee $175,000 in lost wages, compensatory damages and other relief, and work with the Center for Continuing Education and Rehabilitation at the Northwest ADA Center (operated by the University of Washington) to make its internal policies and procedures more effective under the ADA.
“This individual needed her supervisor and co-workers to speak face to face with her so she could read their lips, or, occasionally, repeat themselves because of her hearing impairment,” said Nancy Sienko, director of the EEOC’s Seattle Field Office. “This simple accommodation of her disability would have allowed her to continue to perform her job duties and remain employed.”
EEOC Senior Trial Attorney Damien Lee added, “The EEOC's suit should remind employers of the need to adequately train managers and employees on their rights and responsibilities under the ADA. We are encouraged that Northwest Wireless committed to improving its ADA policies and internal complaint procedures to ensure that employees with disabilities are adequately protected in the future.”
EEOC Sues Outokumpu Stainless USA for Disability Discrimination
Outokumpu Stainless USA, LLC, a stainless steel manufacturer headquartered near Mobile, Ala., which employs more than 900 persons at its Calvert, Ala., facility, violated federal law by refusing to hire an applicant because of his use of medication prescribed by his doctor for anxiety and panic attacks, the U.S Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.
According to the EEOC’s lawsuit, the applicant was offered an entry operator position at Outokumpu’s Calvert facility contingent upon passing a physical examination and drug screening by a third-party company that conducts pre-employment health screenings for employers. According to the EEOC, when the applicant informed the examiner he takes prescription medication due to anxiety and a history of panic attacks, Outokumpu withdrew the conditional offer of employment due to possible side effects of the medication.
Failing to hire an individual because of a disability, perceived disability, or record of disability, and applying policies or standards that screen out persons with disabilities, violate the Americans with Disabilities Act (ADA). The EEOC filed suit (EEOC v. Outokumpu Stainless USA, LLC, Case No. 1:20-cv-00521) in U.S. District Court for the Southern District of Alabama after first attempting to reach a pre-litigation settlement through its conciliation process. The agency’s lawsuit seeks monetary damages for the applicant, including back pay, compensatory and punitive damages, and injunctive relief.
“Rejecting qualified applicants based on assumptions or stereotypes costs society, particularly in terms of the lost talent that these individuals can contribute,” said Bradley Anderson, district director of the EEOC’s Birmingham District Office. “This applicant was robbed of a chance to prove his abilities, and was an unnecessary loss for everyone.”
Marsha Rucker, regional attorney for the EEOC's Birmingham District Office, added, “The ADA was enacted precisely to prevent circumstances like this -- when employers act based on stereotypes or fears rather than on accurate assessments of a person’s present abilities and need for accommodation, if any. Employers who disregard the requirements of the ADA not only lose out on hiring valuable employees, they open themselves up to lawsuits such as this one.”
One of the six national priorities identified by the Commission’s Strategic Enforcement Plan is to address eliminating barriers in recruitment and hiring.
10th Circuit: ADA Accommodation Claims Do Not Need Adverse Employment Actions To Succeed
To prove that an employer failed to accommodate an employee’s disability in violation of the Americans With Disabilities Act, an employee alleging disability bias does not need to show that the employer fired them or took a similar adverse employment action, the 10th Circuit Court of Appeals opined Wednesday. The issue in Exby-Stolley v. Bd. of Cty. Comm’rs – whether an adverse employment action is required to maintain an ADA claim – has split the appeals courts across the country and may require final resolution by the Supreme Court. For now, though, employers in Colorado, Kansas, New Mexico, and other nearby states will need to be extra cautious when it comes to ADA compliance efforts due to this decision.
Lower Court Finds No Adverse Employment Action Occurred
Laurie Exby-Stolley was a health inspector for the Board of County Commissioners of Weld County in Colorado. Her job required her to inspect restaurants and bars, interview employees, and observe safety practices. While on the job, she broke her right arm, requiring prolonged treatment. Because she had to use makeshift devices to perform her tasks, it took her longer to complete inspections and she did not complete the number required of her position. The parties disagreed about the efforts the county made to accommodate her impairments and whether she had been told to resign or voluntarily resigned.
Exby-Stolley sued, alleging that the county violated the Americans With Disabilities Act (ADA) by failing to reasonably accommodate her disability, failing to engage in the ADA-required interactive process to find an accommodation, and terminating her because her physical restrictions did not allow her to perform all the duties that her original job description included. The jury found that Exby-Stolley had not proven that she suffered an adverse employment action and handed a victory to the county.
Exby-Stolley appealed and a three-judge panel of the 10th Circuit affirmed the judgment in the employer’s favor, agreeing that an adverse employment action is an element of a failure-to-accommodate claim. Following the decision, at Exby-Stolley’s request, the appeals court agreed to a rehearing before the entire 10th Circuit, known as an en banc review
Failure To Offer A Reasonable Accommodation Is Unlawful Discrimination
In Wednesday’s en banc opinion, the 10th Circuit rejected the three-judge panel’s majority ruling that employees alleging disability bias must show an adverse employment action when they sue employers for failing to accommodate their disability. In its decision, the 10th Circuit considered the text of the ADA, 10th Circuit precedent, opinions from outside the 10th Circuit, views of the Equal Employment Opportunity Commission, and the ADA’s general remedial purposes.
The court explained that the phrase “adverse employment action” does not appear in the ADA. It rejected the county’s endeavor to incorporate an adverse-employment-action requirement into an ADA failure-to-accommodate claim, stating that the county was failing to differentiate between disparate treatment and failure-to-accommodate claims. Disparate treatment claims assert that an employer took adverse employment actions because of an individual’s disability. On the other hand, the court said, failure-to-accommodate claims assert that the employer failed to take reasonable steps to accommodate an employee’s disability.
According to the court, the former requires a showing of an adverse employment action and the latter does not. This is because, based on the text of the ADA, Congress has already determined that a failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination.
In its opinion, the court stated that 10th Circuit has expressly described in prior cases what an employee must show to successfully proceed with an ADA claim of failure to accommodate. The court explained that, in those cases, the 10th Circuit’s explanation did not include an adverse employment action as a requirement of a prima facie case. Thus, the court held that an adverse employment action is not a required element of an ADA failure-to-accommodate claim.
Further, the 10th Circuit agreed with Exby-Stolley that the decisions by other circuit courts of appeal confirmed that an adverse employment action is not an element of a failure-to-accommodate claim. The court was not persuaded by the county’s argument that the 1st, 2nd, 7th, 8th, 9th, and District of Columbia circuits have all stated that an adverse employment action is a requisite element of an ADA failure-to-accommodate claim. The court stated: “In sum, from this survey of the decisions of our sister circuits, the critical takeaway is this: none of our sister circuits has regularly incorporated an adverse-employment-action requirement into an ADA failure-to-accommodate claim.”
Implications For Employers Facing ADA Claims
The 10th Circuit’s decision demonstrates the proper elements plaintiffs are required to satisfy when they allege that their employer discriminated against them because of their disability – at least in the 10th Circuit (encompassing cases from Colorado, Kansas, New Mexico, and other nearby states). An employer’s failure to reasonably accommodate — by itself — may result in liability.
As always, you should continue to engage in good faith in the ADA-interactive process: communicate with the employee, explore possible accommodations, and determine whether the proposed accommodation poses an undue hardship. You also should document every step of the interactive process from the initial request through the selection and implementation of the accommodation (or denial of the request for an accommodation).
Because there is a circuit split and courts from across the country disagree on the correct legal standard, we may eventually see Supreme Court intervention to resolve the matter.
Fourth Circuit Says Employee Who Accepted Voluntary Transfer Cannot Maintain ADA Claims
Under the Americans with Disabilities Act, if an employee with a disability requests accommodation, the employer must work with that person to determine if there are reasonable measures that can be taken that allow the employee to perform the essential functions of her job despite the medical issues. Once the employer proposes and the employee accepts an accommodation, the legal question of its sufficiency generally ends. This concept was ratified in a recent decision by the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia).
In Laird v. Fairfax County, the plaintiff was a county employee who developed multiple sclerosis and was unable to continue in her previous job. After discussing alternatives with her, the county agreed to create a new position at the same level of pay that allowed her to work from home. The plaintiff accepted the transfer but later sued, claiming failure to accommodate and retaliation under the ADA because she believed that the new position did not carry the same level of responsibility or opportunity for advancement.
The district court dismissed the claim, and the Fourth Circuit panel unanimously affirmed this dismissal. Although the legal standards for claims of discrimination and retaliation are somewhat different, the court noted that both claims require the plaintiff to demonstrate some form of adverse action resulting from the employer’s alleged activities. In this case, the plaintiff could not demonstrate that her voluntary acceptance of a lateral transfer met this requirement. The Fourth Circuit noted that the plaintiff did not claim in her appeal that she was constructively forced to accept the transfer due to intolerable conditions in her old position.
Employers should fully document employee accommodation discussions, including the employee’s consent to any measures offered. Evidence of voluntary assent to such accommodations can help defeat a later claim of discrimination or retaliation.
Web Design Agency Works With Businesses to Improve Website Accessibility for Disabled People
Raleigh web design agency, TheeDigital, has launched an ADA Compliance Monitor, a fully automated monitoring service that ensures a website is accessible and in compliance with guidelines laid out in the Americans with Disabilities Act. In the same way a brick and mortar business has to provide accommodations and accessibility features to people with disabilities, ecommerce websites and business websites must also be usable and accessible.
In accordance with the Web Content Accessibility Guidelines (WCAG), website accessibility refers to the site, tools, and technology, making sure they are designed and developed in a way that people with disabilities can use them. This includes:
- Visual, such as color blindness, low-vision, and blindness;
- Physical, so that even those who can't use a mouse or type can still navigate;
- Auditory, so if you have audio content, it's necessary to provide a similar experience;
For businesses who aren't sure if their website is compliant or don't know what the guidelines are, TheeDigital is offering a free ADA website audit with a complimentary report. Businesses can use the information to fix the issues on their own or can sign up for fully automated compliance remediation that solves issues and brings the website to WCAG 2.1 AA standards at over 90 percent effectiveness without changing the appearance of the website itself. Once it's fixed, the ADA Compliance Monitor kicks in to scan and fix any website changes as well as do a comprehensive scan once a quarter.
"Accessible websites are more than just a digital marketing trend, they are an opportunity for businesses to reach a broader audience and also prevent legal action for not having an ADA-compliant website. With ADA Compliance Monitor, business owners can feel confident that their site is meeting the needs of their entire audience." - Richard Horvath
"In addition to serving the disabled community and business owners both, we are also donating any profits made in 2020 from the service to the American Cancer Society."
To learn more about the ADA Compliance Monitor or set up a free audit, call 919-341-8901
Greenspoon Marder Hospitality, Alcohol & Leisure Blog: Online Alcohol Sales and the ADA - A Potential Pitfall
Online wine sales are skyrocketing and certainly more and more beverage alcohol entrepreneurs are jumping into this e-commerce space. One needs only to type a single word to explain this rising tide, and that word is, unfortunately, “pandemic.” That aside, the opportunities presented in the cyber-sphere for drinks sellers is significant but fraught with peril. There are many Beverage Law concerns involved such as supplier, platform and retailer relations and more importantly state laws on issues of tax, licensing and whether direct to consumer (DtC) is even permitted in a given state are a few significant issues that must be carefully analyzed and complied with if an entrepreneur is to run a successful online alcohol selling platform. Note that Beverage Law concerns are complex and varied and must be addressed but that is not the central topic of this post.
One little realized area of concern for many online sellers, including beverage alcohol sellers, is referred to “accessibility policy.”
In 1990 President Bush (Bush 1) signed the American’s with Disabilities Act (ADA) into law. A principle area of concern at that time was ensuring that disabled American’s, and rightly so, had reasonable access to public places. Put another way physical barriers to places of public accommodation were found in violation of the ADA. Over the years many a reasonable lawsuit was brought to enforce the Act.
Today, many lawsuits under the ADA are brought by plaintiff’s against owners of websites arguing that they are in violation of the ADA in that they qualify as places of public accommodation and that under certain circumstances deny the right of equal access to disabled individuals.
Online alcohol beverage sales platforms whether retailer or third party managed are exposed to a claim under the ADA.
Plaintiffs lawyers often times representing a single person may bring multiple lawsuits against many websites at once. Further, there is an attorney’s fees provision in the statute that permits plaintiff’s counsel to receive an award of fees if victorious. Many, if not most of these actions are settled out of court with the defendant coming out of pocket to settle. Obviously, the lesson here is to ensure that any website, including alcohol beverage sellers platforms are compliant.
Compliance of course is not an easy task. It seems that there is no well-established set of guidelines to follow. W3.org appears to be good organization to rely on for internet and website guidance. That organization has also created a draft document to assist websites with ADA compliance. See: https://www.w3.org/WAI/standards-guidelines/wcag/#versions.
Online alcohol sales present great opportunity today. Be sure you are in compliance with the ADA to avoid any unnecessary pecuniary loss.
Employees May Be “Out of Sight” While Teleworking, but the ADA Should Not Be “Out of Mind”
A look at what this new “teleworking world” mean for employees who previously needed, and relied on, accommodations to perform the essential functions of his or her job and how employers should approach new requests for accommodations in a remote environment.