Lexology
If you’ve visited a shopping mall in America, you’ve probably seen the characteristic design of the Hollister Co. clothing stores. About 249 of the stores have a roofed porch-like entrance, with steps leading up onto the porch from the mall area and steps leading down from the elevated porch into the store interior. Flanking the porch on both sides are wheelchair accessible entrances with no steps that lead directly into the store’s interior. Advocacy groups — with the Justice Department’s (DOJ) support as amicus — sued Hollister and parent company Abercrombie & Fitch Co. claiming that the porch structure violates Title III of the Americans with Disabilities Act.
The plaintiffs won in district court where they argued that: (1) even though the stores fully comply with the requirements of the 1991 and 2010 Standards for Accessible Design (ADA Standards) for entrances, the existence of an elevated porch violate the “overarching aims” of the Title III of the ADA because people who cannot use the stairs cannot enjoy it; (2) the porch itself is a “space” and all spaces must be accessible; and (3) the accessible entrance must be the one used by the “majority of people.”
The Tenth Circuit Court of Appeals rejected all of these arguments. The court found that meeting the ADA Standards is sufficient to satisfy Title III of the ADA when the issue is one of design, rather than discriminatory practice. The DOJ had argued — based on the ADA’s broad guarantee of a “full and equal” experience — that the porch has to be accessible because it is part of the “Hollister experience.” The Tenth Circuit disagreed. The court also held that the ADA Standards do not require every space in a facility to be accessible. Further, court ruled that the “majority of people” rule from the 1991 ADA Standards was abandoned in the 2010 ADA Standards so that it no longer applies to the case at hand.
This decision should be welcome news for public accommodations that are building and remodeling their facilities. Although it should be matter of common sense that compliance with the ADA Standards equals compliance with the ADA, this lawsuit called this proposition into question. Plaintiffs and DOJ often rely the “full and equal” language of the ADA to argue in support of additional obligations that are not stated in the regulations or ADA Standards. At least in matters of architectural design, one circuit is saying no to this line of argument.
EEOC Chair Yang Calls for Renewed Effort to Hire People with Disabilities
U.S. Equal Employment Opportunity (EEOC) Chair Jenny Yang spoke on Tuesday at a White House event celebrating "Champions of Change" who are doing extraordinary work to hire, retain, and promote people with disabilities in their local communities and throughout the nation. The event was held in conjunction with National Disability Employment Awareness Month, which is held each October to renew the nation's commitment to an American workforce that extends opportunities to all, including people with disabilities. The Champions of Change program was created as an opportunity for the White House to feature individuals who are nominated by their communities for making a difference on a particular issue.
EEOC Sues Sushi at the Lake for Disability Discrimination
According to the EEOC's complaint, Matthew Botello's left arm was amputated above his elbow around November 2010. On or about Oct. 4, 2013, Botello applied to work as a busboy (or "busser") at Sushi at the Lake, and on Oct. 10, Botello was told to report to the restaurant to work the following day. Shortly after Botello arrived on Oct. 11, the restaurant's owner saw that Botello's left arm had been amputated. The EEOC said that the owner gestured at Botello's left side and told Botello that he could not bus tables because he had only one arm. Although Botello told the owner that he had bussed tables at another restaurant, the owner told Botello he could not work and to leave Sushi at the Lake.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects applicants and employees from discrimination based on their disabilities. The EEOC filed suit in the U.S. District Court for the Western District of North Carolina Charlotte Division (EEOC v. Greenhouse Enterprise, Inc. d/b/a Sushi at the Lake, Civil Action No.3:14-cv-00569 after first attempting to reach a voluntary pre-litigation settlement through its conciliation process. The EEOC seeks back pay, compensatory damages, and punitive damages, as well as injunctive relief.
1. EEOC suits contend wellness programs violate disability law
Business Insurance
The U.S. Equal Employment Opportunity Commission recently filed lawsuits against two Wisconsin companies that underscore the need for more clarity on rules that govern employers' use of financial incentives to motivate employee participation in workplace wellness programs.
Legal experts say the lawsuits — in which two private companies are accused of violating the Americans with Disabilities Act — are the most concrete indication yet of the EEOC's position on applying the ADA to workplace wellness programs.
“The EEOC is obviously sending out a broad message that blanket requirements for all employees regarding wellness programs are going to be looked as analogous to blanket requirements for criminal background checks or credit checks, in that they're viewed as a punitive measure that could disparately impact a certain class of employees,” said Ricki Roer, a New York-based partner at law firm Wilson Elser Moskowitz Edelman & Dicker L.L.P.
1. EEOC Files Two Recent Lawsuits Challenging Employer Wellness Programs
JD Supra
Until the EEOC provides further guidance on this issue, employers should ensure that their wellness programs are truly voluntary. Moreover, employers should make sure to avoid either significant penalties for employees who choose not to participate and/or significant rewards for employees who do participate in these programs. Finally, any medical information that employers obtain through a wellness program should be kept confidential and should not be used as a basis for making employment decisions involving the employee.
The Unhealthy Side Effects of Employer Wellness Programs
JD Supra
In the spirit of promoting “wellness,” now is a good time to check the legal health of your employer wellness programs and to make sure that you’re in tip-top shape.