Settlement Agreement:
· Lone Star Steakhouse & Saloon
Disability and constructive discharge linked
Business Management Daily
Disabled employees who quit when their employer refuses to consider possible reasonable accommodations may have a constructive discharge claim under the ADA. It’s another reason to be sure to seriously consider every request for accommodations, using the ADA’s interactive process.
Recent case: Jenette worked as a teacher and had been diagnosed with major incontinence. Her condition impairs bowel function and means she must have ready access to a restroom at all times. She requested an accommodation of using anti-diarrhea medicine at work and being allowed to sometimes sit while teaching. For five years, the accommodation worked.
Then a new administrator arrived at school. Soon, Jenette was called into a meeting to discuss her condition. The new administrator told her she had to stand while teaching and refused to discuss any accommodation. He threatened to discipline her if she disobeyed the order. For the next year, Jenette was repeatedly called into meetings and warned that ignoring the order to stand would mean potential termination.
She eventually retired and then sued, alleging that her employer had refused to engage in the interactive accommodations process and had essentially given her no choice but to quit. Without access to a bathroom and being able to sit as a way to control her bowels, she argued, meant she was unable to work.
The court said her case could go to trial, ruling she had made out a claim of constructive discharge. A reasonable employee under similar circumstances would have no choice but to quit; refusing to even entertain an accommodation violates the ADA. (Busch v. Oswayo Valley School District, No. 1:15-CV-239, WD NY, 2016)
Final note: Always consider how your actions will look to a jury. It’s usually better to at least consider accommodations instead of doubling down on an initial refusal.
Does Mandatory Vaccination Violate Rights?
Daily Report
Title I of the Americans With Disabilities Act prohibits discrimination by employers on basis of disability. Under Title I, discrimination includes the failure to provide a "reasonable accommodation" for a disabled individual, unless such accommodation imposes "undue hardship" on the employee. The EEOC has advised that an employee "may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine." The EEOC also has asserted that a covered employer may not compel all of its employees to take the influenza vaccine, regardless of their medical conditions, but that such an employer may require employees to wear personal protective equipment (such as employer-provided non-latex gloves or gowns designed for individuals who use wheelchairs). The CDC has recommended exemptions with respect to persons with severe allergy to vaccine components (such as chicken eggs), persons with a history of severe reaction to an influenza vaccination, persons less than six months old and persons with a history of Guillain-Barré Syndrome.
Disability rights advocates shift strategies to ensure equal rights in the digital age
Inside Higher Ed
As higher education turns increasingly digital, disability rights advocates turn to legal measures -- and an attentive Justice Department -- to address the challenges facing students with disabilities.
EEOC Releases New Guidance on Retaliation Claims
The National Law Review
According to the Equal Employment Opportunity Commission (EEOC), in 2015, retaliation claims made up to 45 percent of all private-sector charges filed with the agency. In recognition of the growth in the number of these claims and the fact that the EEOC hasn’t updated its guidance on retaliation since 1998, it released a proposed enforcement guidance on retaliation claims in January.
Blind lawyer fights for rights of people facing disabilities
Chicago Daily Law Bulletin
Website Accessibility Regulations Delayed Until 2018 but Banks Should Not Table the Issue
Lexology
Long awaited Guidelines from the federal Department of Justice (DOJ) for website accessibility under the Americans with Disabilities Act (ADA) are now expected sometime in 2018. But, as discussed below, that does not mean that financial institutions transacting business with the public through websites and mobile applications should ignore web-based accessibility entirely until 2018. Law firms and the DOJ are attempting to enforce the ADA on website owners in the absence of mandatory regulatory guidelines.
Voting While Mobility Impaired
Harvard Law Record
When I didn’t vote in the 2012 presidential election, I made up a bunch of excuses to tell my friends and classmates when they asked me if I’d voted. I told them I wasn’t registered (I was), that I figured Massachusetts was going to go blue anyway (it did), and that I didn’t have time to wheel over to a voting area (I did). Why did I tell my friends such nonsense—or, better, why didn’t I just lie and said that I had voted, particularly when all of them gave me hell for not voting?
18 Percent Of Cancer-Afflicted Workers Face Work Discrimination
iTech Post
About 20,000 people a year diagnosed with cancer will face discrimination, with 35 percent of cancer patients said they feel guilty for taking time off for appointments and that they lose faith in their ability to do their job, while 14 percent give up work or are made redundant as a result.
US Employment Litigation Round-Up for October 2016
Lexology