Fifth Circuit Flips Grant Of Summary Judgment Against EEOC in ADA case
Lexology
In an ADA action regarding disability discrimination, the Fifth Circuit reversed a District Court’s grant of summary judgment in favor of the employer and against the EEOC, noting that even though the charging party indicated she had a temporary total disability on a disability insurance claim form that she submitted the day after her termination, factual issues remained regarding the availability of a reasonable accommodation. The ruling underscores the nature and challenge of EEOC litigation of ADA claims.
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In an ADA disability discrimination action brought by the EEOC on behalf of a nurse against her employer healthcare facility, the U.S. District Court for the Southern District of Mississippi entered summary judgment in favor of the employer after finding that the charging party was not able to perform her job duties in light of the fact that she described herself as “totally disabled” when making a disability insurance claim. Following the Commission’s appeal in EEOC v. Vicksburg Healthcare, L.L.C., No. 15-60764 (5th Cir. Oct. 12, 2016), the Fifth Circuit reversed and remanded the District Court’s grant of summary judgment, holding that the employee’s claim to temporary total disability, made the day after she was terminated from her job because of a disability, did not prevent the EEOC from contending that she was able to work if granted a reasonable accommodation.
For employers engaged in EEOC disability discrimination litigation under the ADA, in particular with employees alleging “total disability” on subsequent disability insurance claims, this ruling illustrates that such claims of “total disability” do not foreclose the possibility that a reasonable accommodation could have been provided.
ADA Compliance & Defense Lawer: ADA Website Accessibility lawsuits escalate
Hotel Law
JMBM’s ADA Defense & Compliance team takes the ADA seriously, and we recommend that our clients take a proactive approach in identifying and solving potential problems before they become lawsuits. For many years now, we have called attention to the importance of making website ADA-compliant, but hotels, resorts, restaurants, banks, retailers and other owners and operators of commercial real estate continue to be vulnerable to one of the more recent and serious waves of ADA oomplaints. See Charles Schwab settles web site accessibility claim and New ADA standards for website accessibility.
OJ doesn't pair well with Disability Discrimination
Knoxville News Sentinel-
Two small bottles of orange juice cost a major Tennessee company more than $277,000. When an employee has a disability such as diabetes and is denied an accommodation in the form of a policy exception, it can mean big bucks in attorneys’ fees, time away from work for managers and employees, and damages.
Woman sues Colorado Springs hospital for discrimination over disability
KKTV 11 News
An ultrasound technician says Memorial Hospital broke federal anti-discrimination laws by rescinding a job offer on account of her fibromyalgia and the narcotic painkillers she used to treat it.
Elena Sumler, of Colorado Springs, filed a civil rights lawsuit in federal district court Thursday against the hospital claiming it violated the Americans with Disabilities Act and the Rehabilitation Act.
The lawsuit alleges Sumler was forced to answer an illegal medical questionnaire, then lost out on a job at the hospital after acknowledging she took medications for fibromyalgia - a chronic condition related to arthritis and causes widespread muscle pain and tenderness.
She is seeking lost wages, damages and attorneys fees.
A spokesman for University of Colorado Health, which leases Memorial Hospital from Colorado Springs, did not immediately return calls from The Gazette seeking comment.
Obesity and the Americans With Disabilities Act
JD Supra
Earlier this week, the Supreme Court denied a petition for review from a case holding that morbid obesity, without an underlying physiological condition, is not a “disability” under The Americans With Disabilities Act (ADA). The ADA prohibits an employer from discriminating against “a qualified individual on the basis of disability” in regard to terms of employment, including termination or providing reasonable accommodations. The petitioner in the lawsuit asserted that the ADA Amendments Act of 2008, which substantially broadened the definition of “disability,” now includes “obesity.”
The lawsuit stemmed from a 2013 occurrence where a railroad company withdrew its conditional offer of employment when it discovered that the applicant was morbidly obese. In Morriss v. BNSF Railway Co., the U.S. Court of Appeals for the Eighth Circuit ruled that morbid obesity, by itself, is a physical characteristic, and therefore unless it is the result of an underlying physiological condition, falls beneath the standard of a recognized disability. This was true even under the broadened ADA Amendments Act. Employers should nonetheless proceed with caution as to employees who request accommodations relating to obesity, as other federal courts may differ in their treatment, evidenced by previous holdings in the Second and Sixth Circuit denying that obesity is a disability on its own, and the First Circuit finding to the contrary. The Eighth Circuit’s decision in Morriss v. BNSF Railway Co., No. 14-3858 (8th Cir. Apr. 5, 2016) is available at http://media.ca8.uscourts.gov/opndir/16/04/143858P.pdf.
Federal government sues nightclub after waitress fired amid HIV rumor
Houston Chronicle
The owner of a south-side Houston nightclub is being sued over allegations of trying to force a waitress to prove that she didn't have HIV, a case attorneys with the federal government said they hope will remind companies that they cannot discriminate.
Leila Roberts, owner of Diallo's night club, is accused of asking waitress Felicia Parks twice to provide health records to disprove a rumor that she had HIV. Parks was fired after she failed to provide documentation.
The Equal Employment Opportunity Commission, tasked with enforcing laws against workplace discrimination, filed suit against the club earlier this month, calling the case a clear violation of law. Parks, who is not HIV-positive, now qualifies for protection under the Americans with Disability Act as an individual with a disability by virtue of Diallo's assumption. Additionally, courts have determined that diseases qualify as disabilities.
When pigs fly: Will airlines ever crack down on emotional support pets?
Fox News
Flight attendant Steffanie Rivers has seen it all: dogs pooping in the aisle, a cat clawing a pregnant woman, and even a chimpanzee running through the plane.
For several years, passengers have been reporting unruly animals making noise throughout flights or lounging on tray tables.
But these uncontrolled animals, which have even included pigs and turkeys-- are allowed to ride in the airplane cabin. They’re “emotional support” animals, and they can accompany their owners on flights with very little restriction.
With reported incidents of disruptive plane pets on the rise, on Wednesday, the Department of Transportation (DOT) convened its ACCESS Advisory Committee, to examine whether there should be limitations on the type of species permitted on board and how to deal with fliers who may be lying about an illness to gain access for an emotional support pet. Although the Committee did not reach a consensus, the DOT says the discussions yielded a "wealth of information" on the issue, which will assist in drafting a forthcoming new rule on service animals.
But nothing has been decided yet and frequent fliers say they’re seeing more of these animals than ever, which leads to the question: Are all those emotional support animals really there for support, or are people who don’t really need them gaming the system to bring their pets on board for free?