Settlement Agreement: The City of Hudson, New York
Guidewire Sued by EEOC for Disability Discrimination
Foster City-based technology company Guidewire Software, Inc., violated federal law when it failed to accommodate and interview a qualified job applicant due to her hearing impairment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed recently.
According to the EEOC's investigation, the applicant applied for a contractor position as a user experience designer and, based on her resume, Guidewire's hiring manager emailed her to schedule an initial phone screening. The applicant responded immediately, requesting a face-to-face meeting as an accommodation since her cochlear implants limit the clarity of sound coming through telephones and computers.
Guidewire instead suggested using a technology known as "Relay Conference Captioning" and the use of sign language as a back-up. When the applicant looked into this alternative, however, she found that there was a waiting period to set up an account to use this technology. She immediately informed the hiring manager and asked about an alternative captioning service built into WebEx, the product Guidewire had already planned to use for part of the interview. She also noted that she does not use sign language.
Guidewire never responded to her email and instead conducted screening interviews with four candidates who did not request reasonable accommodation, and ultimately offered the position to one of those candidates, the EEOC said.
Rejecting a qualified applicant because of disability violates the Americans with Disabilities Act (ADA). The EEOC filed suit (CIV# 5:19-cv-06878) in U.S. District Court for the Northern District of California after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC's lawsuit seeks lost wages, compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future.
"Guidewire had already determined that this applicant was qualified," said EEOC Senior Trial Attorney Ami Sanghvi. "She simply requested a face-to-face meeting rather than a phone interview - something one Guidewire official deemed a 'reasonable solution' in their internal communications. By denying this reasonable request that would not have caused undue hardship, the company preemptively foreclosed this candidate's shot to prove herself and earn a living."
William Tamayo, the EEOC's San Francisco District Office director, added, "Congress enacted the ADA to prevent just this sort of thing - employers refusing to consider qualified individuals because of their disability."
Is Gender Dysphoria An ADA-Protected Disability?
Two courts have said yes, but one now says no.
In 2017, I wrote about a federal court decision saying that gender dysphoria was a "disability" within the meaning of the Americans with Disabilities Act. A year later, another federal court agreed.
As of this week, we have one dissenting court.
In Doe v. Northrop Grumman Systems Corp., Judge Lynwood Smith of the Northern District of Alabama dismissed an ADA claim where the alleged disability was gender dysphoria. (The plaintiff's sex discrimination claim under Title VII will be allowed to proceed.)
Section 12211 of the ADA says that certain conditions and "states of being" are not "disabilities" within the meaning of the Act. Among other things, the ADA excludes "transsexualism," as well as "gender identity disorder" unless the latter results from a physical impairment. That part of the ADA was not amended as part of the ADA Amendments Act, which took effect in 2009.
I'm speculating here, but by using the words "physical impairment," I assume Congress intended to provide ADA protection to individuals with gender dysphoria as a result of being intersex (for example, having both male and female genitalia, or XXY chromosomes), or possibly as a result of a hormonal condition.
Judge Smith pointed out that in 1990, when the ADA was enacted, "gender identity disorder" was the accepted terminology for what we now call "gender dysphoria." The term "gender dysphoria" was not adopted by the American Psychological Association until 2013.
The APA describes gender dysphoria as follows:
Gender dysphoria refers to the distress that may accompany the incongruence between one's experienced or expressed gender and one's assigned gender. Although not all individuals will experience distress as a result of such incongruence, many are distressed if the desired physical interventions by means of hormones and/or surgery are not available. The current term is more descriptive than the previous DSM-IV term gender identity disorder and focuses on dysphoria as the clinical problem, not identity per se.
APA, Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (2013), quoted in the Northrop Grumman decision (emphasis in original).
In other words, according to Judge Smith, "gender identity disorder" and "gender dysphoria" are the same condition with different names. Therefore, gender dysphoria that doesn't result from a physical impairment is not a "disability" within the meaning of the ADA. The plaintiff did not allege that his gender dysphoria had a physical origin.
Judge Smith summarily refused to follow the decisions to the contrary in Blatt v. Cabela's (the 2017 case that I posted about, linked above) and Doe v. Massachusetts Dep't of Corrections (a 2018 decision, also linked above), saying only that they were "not binding on this court" and "not persuasive."
If the ADA exclusion applies, the next big question is whether it violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The plaintiffs in all three cases made that allegation. The Blatt and Doe courts sidestepped it, and Judge Smith found that the plaintiff had not adequately pled it, which isn't quite the same as saying that the exclusion is not unconstitutional.
Because the plaintiff's Title VII sex discrimination claim will go forward, he may decide not to appeal the dismissal of his ADA claim to the U.S. Court of Appeals for the Eleventh Circuit. But depending on which way the Supreme Court goes in the gender identity/Title VII case of R.G. & G.R. Harris Funeral Homes v. EEOC, he might.
THE INVESTIGATORS: Surgeon accused of denying deaf patient interpreting services; doctor denies claims
Going to the doctor is supposed to be simple, but Katrina Labouliere says when her deaf father was referred for a surgery in October, he was turned away.
“The doctor said he’s not going to provide an interpreter, that you can bring a family member if you want, but he doesn’t have the money to pay for an interpreter and he’s not going to hire an interpreter,”Labouliere said.
Supreme Court’s Avoidance of Web Accessibility Bodes Increase in ADA Demands and Lawsuits
By declining to hear an appeal by Domino’s on October 7, 2019, the United States Supreme Court refused to weigh in on the ever-increasing battle over when and how Title III of the Americans with Disabilities Act (“ADA” or “Title III”) applies to websites, mobile apps, and related technologies. The high court’s denial of certiorari in the Domino’s case means that businesses will continue to face uncertainty due to the patchwork of legal decisions around the country and the Department of Justice’s earlier cancelation of its rulemaking efforts.
One thing that is certain: businesses can expect an increasing number of demands and lawsuits from firms purporting to represent blind/low vision and deaf/hearing impaired individuals who claim difficulty in accessing portions of their websites. These demands often seek an early settlement requiring the business to upgrade its website and come into compliance with certain voluntary accessibility standards and pay attorneys’ fees and costs and, in some states, damages to the plaintiff based on parallel state and local laws.
The ADA Patchwork
Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations. Generally, that means businesses that are open to the public and fall within one or more of the 12 enumerated categories, such as all sales and service establishments, restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctor’s offices, must not discriminate on the basis of a disability.
The ADA was enacted before business was conducted over the internet and has not been amended over time to keep up with technology. In late 2017, the Department of Justice, which is the agency primarily responsible for enforcement of the ADA, abandoned its efforts to make rules and measurable standards regarding website accessibility. However, that has not stopped the DOJ from taking the position that the ADA applies to public-facing websites of business which otherwise provide public accommodations under Title III. The DOJ has further said that the law applies to such a business even if it does not operate any brick and mortar locations. For example, in this Settlement Agreement, the DOJ asserted that online grocer Peapod is a sales and service establishment and therefore subject to public accommodation under Title III of the ADA despite having no brick and mortar stores open to the public.
Without any helpful regulatory guidance from the DOJ, the Courts have reached various conclusions, meaning a business’ potential defenses to a lawsuit could depend on the jurisdiction in which the claim is filed. Courts within four of the eleven federal circuits (the Third, Sixth, Ninth, and Eleventh Circuits) hold that “a place of public accommodation” under the ADA means a physical location. In these jurisdictions, a website itself cannot constitute a place of public accommodation, unless a website has a physical nexus to goods or services available at the physical location in which case it must comply with the accessibility requirements of the ADA. Courts within the First, Second, and Seventh Circuits hold that the ADA can apply to a website independent of any connection between the website and a physical location.
The Impact of the Domino’s Decision
In the Robles v. Domino’s Pizza case, the district court dismissed the action under the ADA and California’s Unruh Civil Rights Act after finding that although Title III applied to the company’s website and mobile app (because of the connection between them and Domino’s physical locations), the lack of regulations and technical assistance from the DOJ created a due process concern, and dismissal was appropriate under the primary jurisdiction doctrine. The plaintiff appealed the dismissal.
The Ninth's Circuit decision on appeal confirmed that the ADA applies “to the services of a place of public accommodation, not services in a place of public accommodation.” Therefore, the inaccessibility of a company’s website or app which have the effect of impeding access to the goods and services of the physical locations, constitutes a violation of the ADA. The Ninth Circuit rejected the due process arguments and held that there is no requirement that “Congress or DOJ spell out exactly how Domino’s should fulfill this obligation” to ensure that its website and mobile app provide effective communication and facilitate full and equal enjoyment of the goods and services it provides.
Arguably, this decision extends the requirements for businesses sued within the Ninth Circuit. Domino’s argued in its Petition to the Supreme Court that the lower court’s decision which required that “each method of ordering a pizza, in isolation, must be accessible to customers with disabilities” effectively treated the website and mobile app as standalone public accommodations that must each independently comply with Title III. Domino’s implored the Court to review the case, predicting that the current flood of litigation would turn into a tsunami if the Ninth Circuit’s decision were to be left undisturbed. Now that the Supreme Court has refused to take up the case and address the flood of litigation, the tsunami warning has been issued.
Next Steps for Businesses with Websites
Businesses which fit into one of the categories of public accommodations under the ADA should review their websites and mobile apps to ensure accessibility is provided to customers, as there are benefits to the business in addition to avoiding a demand or lawsuit from a disabled plaintiff. Businesses should consider conforming their websites and any mobile apps to the WCAG 2.0 and 2.1 Level AA success criteria.
Resist assuming that employee’s disability might cause a safety hazard
Disabled workers who seem capable of doing their jobs sometimes end up with supervisors or co-workers who doubt their abilities. Challenging a disabled employee’s capacity for work can backfire badly, especially if it looks as if the decision to challenge was really based on disability discrimination and harassment.
For example, making repeated requests for medical assessments and other records to prove the employee can safely work when he has already been doing so can create a hostile work environment.
Recent case: Joseph went to work at the U.S. Department of Homeland Security as a field technology telecommunication specialist for Customs and Border Protection. He is a veteran with a service-related disability rating, which he revealed when he was hired.
However, he had no trouble performing his job satisfactorily. Joseph had never sought an accommodation or had any safety-related problems.
One of Joseph’s duties included climbing tall towers as part of a team of two. He was not required to climb daily, but did receive extra-duty pay on those occasions he did.
One of Joseph’s medical issues is migraine headaches. He also suffers from back pain.
Allegedly after hearing complaints from Joseph’s co-workers, a new supervisor formally asked Joseph to provide proof he could climb safely. The supervisor did nothing to verify the complaints he said he got, though. Instead, he immediately ordered Joseph to stop climbing until he got a doctor’s clearance.
Joseph’s doctor said Joseph was not a danger to himself or others. The supervisor asked for more information and continued restricting Joseph. He then withdrew the request, but ordered Joseph not to climb while he was taking any medication. Because of the restriction, Joseph missed annual climbing re-certification and was then prohibited from climbing because he was not certified.
Joseph sued, alleging disability discrimination. He pointed out that he had never asked for an accommodation and never needed one. He challenged the supervisor’s claims that he needed an accommodation and argued that the supposed co-worker complaints either didn’t happen or that his supervisor exaggerated them. And he alleged that the requests for medical information were a form of disability discrimination and harassment.
The court said Joseph’s case could go to trial based on the supervisor’s behavior, including not verifying safety complaints before restricting Joseph from doing work he had always done without a problem. (Burns v. McAleenan, WD TX, 2019)
Final note: One of the easiest ways to violate the ADA and other disability laws is to regard someone as disabled. This happens when an employer treats a worker as if she is disabled even if she is not.
Disabled workers aren’t required to reveal their disabilities if they want to keep their condition private or feel capable of doing their jobs without any sort of accommodation.
If you hear rumors or even learn directly from the employee that he’s disabled, don’t assume he needs an accommodation. Wait for a request. Suggesting accommodations is a form of disability discrimination because it indicates the employer may be relying on stereotypes about disabled workers’ abilities. Asking for medical documentation when the employee hasn’t asked for an accommodation has the same effect. It’s best to wait for the employee to ask for help.
ADA requires training accommodations, too
The ADA requires employers to provide help to disabled applicants at every stage of the employment relationship if that assistance is reasonable, allows disabled workers to enjoy all the benefits other workers receive and provides the help they need to perform the essential functions of their jobs despite a disability.
That includes adapting job training so disabled employees can learn how to perform their jobs. For training workers who are deaf or hard of hearing, the ADA has long required employers to provide sign language interpreters, written materials or closed-caption videos.
Recent case: When a Walmart store in Washington, D.C., hired two deaf workers, it tried to provide onboarding training—without offering either sign-language interpreters or closed-captioned broadcasts. The workers complained that the lack of accommodations prevented them from receiving the training.
Nothing happened until the employees filed a complaint with the EEOC, which sued on their behalf. Because Walmart had neither provided the requested accommodations nor demonstrated the accommodations constituted an undue hardship, it had little chance of winning in court. Now the retailer has agreed to pay the two workers $100,000 and revise its accommodation practices.
Walmart agreed to a two-year consent decree in which it vowed to revise its reasonable accommodations management guidelines, provide live training to management employees on the ADA’s reasonable accommodations requirements, address issues related to deaf and hard-of-hearing persons and train all non-management employees on the ADA and the reasonable accommodation request process. (EEOC v. Wal-Mart, DC DC 2019)
Final note: Remember that all disabled employees are entitled to more than accommodations to do their jobs. They also must receive assistance to enjoy benefits like training and education that other employees can access. Tips for accommodating workplace disabilities are available at askjan.org.
Honor the ADA: Medical Diagnostic Equipment Accessibility
As the ADA approaches its 30th anniversary in 2020, healthcare institutions should embrace the intent of the ADA with or without federal mandates. Healthcare institutions should follow their ethical obligation to equitable healthcare by making non-fixed MDE accessible and height-adjustable. If promoting social justice is not enough motivation, money should be. With age, disability becomes more common, affecting 40% of adults over 65 years old. As disability affects the Baby Boomer generation, providers who lack accessible equipment may lose a significant number of patients.
The disabled are already a vulnerable population. Advocate to legislators to include MDE regulations to increase access to care for the disabled. If we fail to do so, we fail our moral obligations to our fellow Americans and allow the healthcare disparities to not only continue but grow.
Football Player Sues the New York Jets for ADA Violation
The Jets’ strong safety, Rontez Miles, filed a lawsuit in New Jersey state court against the NFL alleging that his rights under the New Jersey Law Against Discrimination (NJ LAD) and the Americans with Disabilities Act (ADA) were violated when he was forced to remove a tinted helmet visor.
Surge in Lawsuits by Small Group of New Yorkers with Disabilities Draws Scrutiny
The eight-inch step leading into the Rancho Vegano restaurant on Second Avenue in East Harlem is one of the main reasons the owners are now in legal trouble.
In July, they were hit with a lawsuit, accused of violating the Americans with Disabilities Act.
"We never knew about ADA," says Janssel Nunez, whose family has owned the restaurant for nearly 15 years.
The 17-page lawsuit alleges the restaurant has 43 ADA violations, from bathrooms that are inaccessible to wheelchairs, to a bar that's too high.
“We’re trying to get a lawyer, but the thing is a lawyer is kind of expensive for us right now," Nunez says.
The suit was filed by a Bronx man, Jermaine Deleston.
NY1 found that Deleston and his lawyer, Erik Bashian, have sued at least 79 other businesses alleging violations of the federal law, which requires businesses to be accessible to the disabled.
The law firm Seyfarth Shaw, which defends against ADA lawsuits, says the number of such cases in New York surged more than 300 percent from 543 in 2016 to 2,338 last year. Many of them were filed by a small group of firms.
"It is not necessarily a law that is very forgiving to a business that ignores its ADA obligations," says Seyfarth Shaw partner John Egan. "So businesses have to take it seriously; they have to be proactive about it; and they are dealing with a situation where plaintiffs and plaintiffs’ lawyers are making this into a big business."
Tort reform groups argue that repeat plaintiffs, like Deleston, and their lawyers simply search for businesses that can be sued to make money.
"They're suing everybody, alleging almost the identical same set of facts and then saying I need $25,000 for my legal fees," says Tom Stebbins, the executive director of the Lawsuit Reform Alliance of New York. "That's what this is really about: it's about legal fees."
Bashian would not agree to an on-camera interview, but he told us over the phone that Deleston has the right to equal access and to sue as many non-compliant businesses as he wants.
NY1 went to Deleston's apartment, but he would not speak with us.
The Americans with Disabilities Act was passed 29 years ago. Advocates for the disabled say businesses have had plenty of time to meet the law's requirements.
"What is it like, do you think, for people to want to go out with their families for dinner and get there and find out they can't get in the door?" says Susan Dooha, the executive director of the Center for Independence of the Disabled, NY.
Each of Deleston's lawsuits seeks up to $1,000 in damages, attorney fees, and changes to make the establishments comply with the Americans with Disabilities Act.
Most of the defendants appear to be small businesses. But he and Bashian have taken on some big targets, like the Fontainebleau Hotel in Miami Beach, claiming its website lacks information about accessible rooms.
Seyfarth Shaw says a majority of such cases are settled.
As for Rancho Vegano, Nunez tells us his family cannot afford to pay legal fees and make their leased space comply with the Disabilities Act.
He says the suit could mean the end of the restaurant.
"We would rather just close down if we have to pay that absurd amount of money," he says.