ADA in the News November 25, 2020

The Fourth Circuit Rules Employers Are Not Required To Reassign Employees as an ADA Accommodation

On November 18, 2020, the Fourth Circuit upheld a summary judgment award in favor of Lowe’s Home Centers LLC (Lowe’s), holding that it did not violate the Americans with Disabilities Act (ADA) when a disabled, long-term employee was removed from his senior role and passed over for two similar vacant positions.

On November 18, 2020, the Fourth Circuit upheld a summary judgment award in favor of Lowe’s Home Centers LLC (Lowe’s), holding that it did not violate the Americans with Disabilities Act (ADA) when a disabled, long-term employee was removed from his senior role and passed over for two similar vacant positions. The Court’s decision contradicts Guidance from the U.S. Equal Employment Opportunity Commission (EEOC), as stated in the agency’s amicus brief filed on behalf of the employee.

The Americans with Disabilities Act

The ADA states that “no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees . . . .” 42 U.S.C. § 12112(a). A “qualified individual” is entitled to protection under the ADA if they are able to “perform the essential functions of the employment position” “with or without reasonable accommodation.” 42 U.S.C. § 12111(8). The ADA requires employers to provide “reasonable accommodations” to “qualified individuals,” which may include “job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).

Elledge v. Lowe’s

Elledge, a long-term employee of Lowe’s, filed suit for violation of the ADA, alleging Lowes (1) forced him out of his position despite being able to perform the essential functions of his job with reasonable accommodations and (2) refused to reassign him to another vacant director-level position. The district court granted summary judgment to Lowe’s, and Elledge appealed.

Elledge was a Market Director of Stores for nearly 10 years, overseeing a dozen stores. His job required him to walk the stores and drive to and from the stores. Elledge had knee problems and eventually underwent a series of knee surgeries. His condition led to difficulty traveling to and from the stores he oversaw, and Elledge’s doctor restricted his walking and working hours. Lowe’s abided by these restrictions and offered Elledge a motorized scooter to assist with store visits – which Elledge declined. Instead, Elledge arranged for subordinates to drive him to the different locations and did not adhere to the light-work accommodation. When Elledge’s restrictions became permanent, Lowe’s concluded Elledge could not remain in his current position and discussed other potential career opportunities at Lowe’s. Elledge refused the lower paying job presented and applied to two vacant director-level positions for which Lowe’s selected other employees. Elledge accepted a severance package and early retirement.

The EEOC’s Amicus Brief Argued the District Court Got it Wrong

The EEOC filed an amicus brief arguing the district court “misunderstood” and “ignored the plain language of the ADA” in concluding that the competitive hiring policy Lowe’s has for the vacant positions “effectively trumps the ADA duty to reassign” a qualified, disabled employee to a vacant equivalent position. Specifically, the EEOC argued that “reassignment” as a potential statutory accommodation does not mean “permission to compete for jobs with other employees.”

The Fourth Circuit Holding

The Fourth Circuit upheld the district court’s dismissal on summary judgment, rejecting the arguments of both Elledge and the EEOC.

With respect to the removal of Elledge from his original position, the Fourth Circuit found Elledge was, in fact, unable to perform the essential functions of his position even with reasonable accommodations, and thus, not a “qualified individual” under the ADA. In doing so, the Fourth Circuit reasoned that Elledge did not take advantage of the accommodations Lowe’s had provided but instead “created certain accommodations, rejected others, and pushed himself beyond the limits of his doctor’s orders.” The Fourth Circuit held that “[g]iven the essential functions of his job . . . no reasonable accommodation could, . . . , have sufficed.” Importantly, in so doing, the Court confirmed (i) that the employer’s determination as to what is an essential function merits “considerable deference”; and (ii) that, to the extent there is a variety of accommodation measures available, the employer – exercising “sound judgment” – has the “ultimate discretion” over which of these alternatives to employ.

With respect to the obligation of Lowe’s to reassign Elledge as an accommodation under the ADA, the Fourth Circuit rejected the notion that the United States Supreme Court case, U.S. Airways v. Barnett, required Lowe’s to appoint Elledge to one of the vacant positions rather than permit him the opportunity to apply within its competitive process, assuming no other reasonable accommodation. Rather, the Fourth Circuit, citing Barnett, stated that the ADA “does not require employers to construct preferential accommodations that maximize workplace opportunities for their disabled employees. It . . . requires . . . that preferential treatment be extended as necessary to provide them with the same opportunities as their non-disabled colleagues.” And, because Lowe’s consistently employed a “best-qualified hiring system,” its merit-based approach was “disability neutral” because “[i]t invite[d], reward[ed], and protect[ed] the formation of settled expectations regarding hiring decisions.”


The Fourth Circuit’s decision sheds light on how far an employer must go in reasonably accommodating a disabled employee and recognizes that while employers must provide adequate reasonable accommodations, it need not change the essential functions of a job or require other employees to share in those tasks. In addition, where there is more than one accommodation that would address the issue, it is the employer who makes the determination as to which will apply. Where, as here, the employee rejects a reasonable accommodation the employer is under no obligation to present or adhere to another – including reassignment. And finally, to the extent “reassignment to a vacant position” is the only accommodation that would address the issue, the disabled employee is entitled to a “disability neutral” equal opportunity similar to that provided to their non-disabled employees.

Smart Home Automation Technology Company Sued for Website ADA Violations

On Monday in the Southern District of New York, the plaintiff, a visually impaired and legally blind individual, filed a class-action complaint against Brilliant Home Technology, a smart home automation company, for allegedly violating the Americans with Disabilities Act (ADA) and the New York City Human Rights Law (NYCHRL) for its website, which the plaintiff and putative class were unable to fully access with their screen-reading software.

The complaint stated that “Congress enacted the ADA as a way of banning discrimination based on a disability. The ADA guarantees that people with disabilities…have the same opportunities as everyone else to participate in the mainstream of American life.” Accordingly, the plaintiff stated that these “opportunities include access to web content, by requiring business websites to include screen readers and other assistive technologies to ensure consumers with disabilities have the same access as everyone else.”

The plaintiff averred that when visiting Brilliant Home Technology’s website, the plaintiff was quickly aware of Brilliant Home Technology’s purported “failure to maintain and operate its website in a way to make it fully accessible for himself and for other blind or visually-impaired people.” The plaintiff claimed that screen-reading software technology allows the visually impaired to fully access a website, including the information, products, and other items contained on the website. However, the plaintiff stated, “for screen-reading software to function, the information on a website must be capable of being rendered into text. If the website content in not capable of being rendered into text, the blind or visually-impaired user is unable to access the same content available to sighted users.” Furthermore, W3C, an international website standards organization, published guidelines for website accessibility, the Web Content Accessibility Guidelines, which is designed to ensure that websites have guidelines to make them accessible. Despite the guidelines, the plaintiff alleged that the defendant has denied “full and equal access to its website,” thereby denying the goods and services it offers, in violation of the ADA.

Specifically, the plaintiff proffered that in October, he visited the defendant’s website using NonVisual Desktop Access, a popular screen-reading software. However, he was unable to browse or make a purchase from the website. The plaintiff contended that the defendant’s website failed to have the necessary features for accessibility and contained numerous barriers. For example, the plaintiff noted that “many features on the Website fail to accurately describe the contents of graphical images, fail to properly label title, fails to distinguish one page from another, contain multiple broken links, contain headings that do not describe the topic or purpose, and the keyboard user interfaces lack a mode of operation where the keyboard focus indicator is visible.”

The class includes all legally blind individuals in the U.S. who have attempted to access the defendant’s website, but were denied access. The subclass includes all legally blind individuals in New York City who have tried to access the defendant’s website but were denied access.

The plaintiff is represented by Marcus & Zelman, LLC.

Does the Gimlet Media Lawsuit Present a New Angle to Digital Accessibility?

Web accessibility lawsuits have been growing in numbers since 2018. In the past two years, we have seen quite a few large business houses being dragged to court because their online presence denied accessibility to people with disabilities. But can these lawsuits mean trouble for your business, even if they are from out of your state? Let us find out.

Does Hearing Loss Qualify As A Disability?

Does Hearing Loss Qualify As A Disability? The impact of hearing loss can be incredibly profound, both on an emotional level but also from a logistical point of view. Hearing impairment can affect your ability to perform the duties of your job, depending on your occupation, and in younger people, it can create barriers requiring additional equipment and attention for schooling.

One of the first things you might wonder about when you or someone you love suffers a sudden loss of hearing or is born with hearing impairment is whether or not the condition, for the purposes of SSDI or SSI, qualifies as a disability. If you’re not sure where to start when navigating this new terrain, let’s go over some basics about loss of hearing and discuss whether or not hearing problems can qualify as a disability.

Recent Trends in the Seventh Circuit

Over the past few months, the Seventh Circuit Court has been extremely active in issuing decisions regarding interpretations of labor and employment questions.  Given the increase in recent decisions, employers should be aware of the trends and outcomes that may impact their businesses.  Two of those cases dealt with disability discrimination under the Americans with Disabilities Act (ADA).  In each case, the Seventh Circuit Court reinforced the guidelines it uses to make that determination.

In Tonyan v. Dunham’s Athleisure Corporation, the Seventh Circuit Court reviewed whether an employee was properly terminated when she was unable to complete the essential functions of her job.  The employee worked as a store manager and suffered an injury leaving her unable to lift more than two (2) pounds.  As a store manager, she was required to perform various forms of physical labor, including unloading and shelving merchandise.  She argued that her termination was a result of discrimination based on her disability.  The employer demonstrated that the employee was unable to perform essential functions of her job.  In response the employer presented the job description and supporting documentation  showing that physical labor was a necessary part of the role of a store manager, and essential to Dunham’s business model.  The Seventh Circuit Court held in favor of the employer, citing that the employee could not complete the essential functions of her job.  The Court also stated “[w]e usually do not ‘second-guess’ the employer’s judgment in describing the essential requirements for the job.”

This case highlights the importance of, accurate and thorough job descriptions.  Having the documentation ready to demonstrate the job descriptions are accurate and the duties are necessary to perform the required remains an excellent defense when an issue of a disability accommodation is raised -.  In determining whether an accommodation is required, the employer must identify what the essential functions of a job are usually using a dialogue process with the employee.  Where the essential functions are well established, and the need for their performance documented, the Tonyan case reiterates the conclusion that Employers are not required to accommodate the inability of an employee to perform the essential functions of a job.

In Kurtzhals v. County of Dunn, the Seventh Circuit Court reviewed whether the county improperly placed an employee on temporary leave and targeted the employee resulting in employment discrimination.  In Kurtzhals, a Sergeant engaged in a verbal altercation with a fellow officer.   This fight escalated when the Sergeant threatened physical violence against the other officer. The County placed the employee on paid administrative leave as a result of his altercation with the other employee, per its policy regarding violence in the workplace.   The County also required the Sergeant to undergo a fitness-for-duty evaluation prior to returning to work.  The Sergeant alleged the County was discriminating against him by requiring the fitness-for-duty evaluation.  The employee was convinced this action was taken only because of his PTSD; however, the County focused on the employee’s inappropriate behavior and safety in the workplace when placing him on leave.  The County required the fitness-for-duty because the Sergeant violated the violence in the workplace policy and the fitness-for-duty evaluation was consistent with the policy purpose and protocol.

The County had a preexisting policy requiring that any employee out on administrative leave must undergo a fitness-for-duty review prior to returning to work.  Regardless of whether the employee felt targeted due to his PTSD the County was following its policy and applying it equally as it would with any other employee in a similar situation.  The Seventh Circuit Court held that the County’s decisions were consistent with a business necessity and were not discriminatory.

In both cases, the Seventh Circuit Court reviewed disability discrimination allegations.   In Tonyon, the employers’ detailed job description and supporting documentation was lead to the favorable result.  In Kurzhals, the well thought out policies and consistent practices in implementing those policies formed the employer’s defense.  In each case the documentation and policies were already in place prior to the incidents and each employer relied on the respective information in proving no discrimination occurred.

These cases highlight the need for employers to stay up-to-date on their documentation, including but not limited to: policies, handbooks, and job descriptions.  The Seventh Circuit Court has shown it is likely to rely on the documentation presented by the employers and rule in their favor based on existing policies and job descriptions.   These cases act as reminders that  employers should review their own internal documentation, procedures and policies to ensure it is accurate, up-to-date and consistently applied.  Having those bases covered continues to form the basis of a strong defense in discrimination cases.

Verbit Raises $60M for its AI-Powered Voice Transcription Tool Built for The Enterprise

In accordance with the Americans with Disabilities Act, universities are required to provide disabled students with transcriptions of classroom lectures, but more often than not, universities rely on able-bodied students to volunteer to take notes. However, Verbit has the power to change this and other industries that rely on verbatim transcriptions and recordings. Verbit is the AI-powered transcription and captioning platform that transcribes speech regardless of accent, domain-specific languages, background noises, echoes, and more. To ensure the accuracy and quality of transcriptions/captions, Verbit has a network of 22,000 human transcribers that validate the technology-produced dictations. Verbit has more than 400 enterprise customers and serves a variety of industries including education, legal, media, government, finance, and insurance.

Our Thanks Goes to Employers Who Hire Disabled Workers

This Thanksgiving, we're especially grateful for the 25 NTI employer partners who hire Americans with disabilities

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