ADA in the News October 5, 2020

Subway franchisee refused to hire applicant with hearing impairment, EEOC says

Dive Brief:

  • An Indiana Subway franchisee violated the Americans with Disabilities Act (ADA) when it refused to hire an applicant with a hearing impairment, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed Sept. 23.
  • The EEOC said Ranrae, Inc., which owns and operates a Subway store in Bloomington, Indiana, refused to hire the qualified applicant for an open sandwich artist position because of "a communication concern" due to the applicant’s "hearing" and "speaking."
  • The agency's lawsuit requested back pay, compensatory and punitive damages, and a permanent injunction to prevent future discrimination in hiring, among other relief.

Dive Insight:

The ADA requires that employers provide reasonable accommodations to qualified workers and applicants, unless doing so creates undue hardship for the employer. Undue hardship means that the accommodation "is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work," according to EEOC.

Although "undue hardship" creates a high standard for employers to meet, some have successfully used that defense in accommodation claims. Walmart, for example, was able to demonstrate that "the loss of production that results from not replacing a worker who is unavailable due to a religious conflict can amount to undue hardship."

EEOC noted in an enforcement guidance on reasonable accommodation that providing qualified readers or interpreters is often reasonable. The agency described a hypothetical situation in which a job applicant requests a sign language interpreter for an interview. The fictitious employer cancels the interview and refuses to consider the applicant because it believes it would have to hire a full-time interpreter. The agency takes the position that the employer has violated the ADA and should have moved forward with the interview, using a sign language interpreter (unless that posed an undue hardship) and at the interview ask about the extent to which the applicant would need a sign language interpreter to communicate.

Additionally, there’s more than one way to accommodate an applicant or employee with a hearing disability, experts say. The Job Accommodation Network offers several suggestions for accommodating deaf applicants and employees such as with certain apps, the use of instant messaging and texting, white boards and more.

Oceanic Time Warner Cable, Charter Communications, Inc. to Settle EEOC Disability Lawsuit    

Oceanic Time Warner Cable LLC and Charter Communications, Inc. (Oceanic) agree to pay $800,000 and provide other injunctive relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced Friday.

According to the EEOC’s lawsuit, Oceanic denied employees with disabilities reasonable accommodation as required under the Americans with Disabilities Act (ADA), failed to engage in the interactive process, and instead fired them.

Such alleged conduct violates the ADA, which makes it illegal for an employer to discriminate against an employee due to a disability. The EEOC filed suit in the U.S. District Court for the District of Hawaii (EEOC v. Oceanic Time Warner Cable LLC dba Spectrum, et al.Case No. CV-18-00357-DKW-KJM) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to monetary relief, the three-year consent decree includes injunctive relief to prevent further workplace discrimination. Oceanic will review and revise their policies to achieve compliance with the ADA, provide regular ADA training to upper managers, human resource practitioners, and all other Hawaii employees, and maintain data detailing accommodation requests and complaints. A designated equal employment opportunity monitor will conduct regular audits, monitor compliance, and oversee recordkeeping and reporting requirements.  The court will retain jurisdiction during the term of the decree.

Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Hawaii in its jurisdiction said, “Engaging in an effective interactive process is integral to preventing disability discrimination at the workplace. We commend Oceanic for agreeing to this resolution.”

“Employers often overlook the variety of reasonable accommodations under the ADA and prematurely dismiss employees’ requests for accommodations,” said Raymond Griffin, Jr., director of the EEOC’s Honolulu Local Office. “Our office remains steadfast in ensuring employers engage in the interactive process.”  

EEOC Sues Scottsdale Healthcare Hospitals / Honorhealth for Disability Discrimination         

Scottsdale Healthcare Hospitals, doing business as HonorHealth, which provides medical care at a number of hospitals and medical facilities in the Phoenix area, failed to provide reasonable accommodations to employees with disabilities, the U.S. Equal Employment Opportunity Commission charged in a lawsuit filed on Tuesday. The EEOC also alleged that HonorHealth fired employees or forced them to quit because of their disabilities or because they needed accommo­dations.

According to the EEOC’s lawsuit, employees with disabilities were repeatedly denied reasonable accommodations, including assistive devices, modified work schedules, and reassignment. Instead of engaging in the required interactive process or discussing possible accommodations, or providing them,  HonorHealth forced the employees out of their jobs, the EEOC charged.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities. The EEOC filed suit in U.S. for the District of Arizona (EEOC v. Scottsdale Healthcare Hospitals d/b/a HonorHealth, Civil Action No. 2:20-cv-01899-MTL) after first attempting to reach a settlement through its pre-litigation conciliation process. The lawsuit seeks lost wages and compensatory and punitive damages, as well as appropriate injunctive relief to prevent discriminatory practices in the future.

“Individuals with disabilities are a vital part of the workforce,” said Mary Jo O’Neill, regional attorney of the EEOC’s Phoenix District Office. “When they request reasonable accommodations that would allow them to perform the essential functions of their jobs, the ADA re­quires employers to engage in an interactive process with those employees and provide a reasonable accommodation.”

Elizabeth Cadle, district director of the EEOC’s Phoenix District Office, added, “Too often, we see employers fall short of their obligations under the ADA. We encourage all employers to develop policies and practices that ensure their workplaces are free from disability discrimination.”

PML Services to Pay $60,000 to Settle EEOC Disability Discrimination Suit

The company that operates the IHG Army Hotel at Fort McCoy in Wisconsin will pay $60,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced last week.

According to the EEOC’s lawsuit, PML Services, LLC, which does business as IHG Army Hotels on Fort McCoy, fired an employee with epilepsy after she experienced a seizure at home after work. The EEOC alleged that the employee, who had worked for the Fort McCoy hotel for several months, called her supervisor to ask for two days off from work to recover from the seizure. When she returned to work, the employee’s supervisor and the hotel’s manager fired the employee, citing the fact that her disability-related absences occurred within her probationary period.

Such conduct violates the Americans with Disabilities Act (ADA) of 1990, which prohibits workplace discrimination on the basis of disability. The ADA prohibits disability discrimination at all stages of employment, including during an employee’s introductory or probationary period. The EEOC filed suit in U.S. District Court for the Western District of Wisconsin (EEOC v. PML Services, LLC, Civil Action No. 3:18- cv- 00805) after first attempting to reach a pre-litigation settlement through its conciliation process.

The two-year consent decree includes $60,000 in monetary relief for the employee, as well as an injunction prohibiting disability discrimination and retaliation and requiring the company to consider reasonable accommodations that would allow employees with disabilities to successfully do their jobs. The decree also requires employee training on the ADA; reporting to the EEOC about reasonable accommodation requests from employees; and a clearer policy emphasizing that emp­loyees with disabilities who are in their introductory period at IHG Army Hotels may be entitled to medical leave as a reasonable accommodation.

“Employers should know discrimination against employees with episodic conditions such as epilepsy is illegal under the ADA and that medical leave during such episodes may be considered a reasonable accommodation,” said Gregory Gochanour, the EEOC’s regional attorney in Chicago.

Julianne Bowman, the EEOC’s district director in Chicago, added, “An employer cannot decline to make reasonable accommodations for a disability or follow the other requirements of the ADA simply because an employee is considered ‘probationary’ or has only worked for a short period of time.”

Hospital employee failed to show reaction to flu vaccine was disability at time of accommodation request

A hospital senior project manager could not show her reactions to the flu vaccine—shortness of breath and heart palpitations—constituted a disability at the time she requested an accommodation to her employer's vaccination policy, held a federal court in New York, granting summary judgment against her ADA failure-to-accommodate claim. Nor could she show she suffered from a disability, or was regarded as suffering from a disability, when she was referred to a doctor to determine whether she had an impairment that would exempt her from the policy, said the court, granting summary judgment against her disability discrimination claim as well. And because there was no evidence of discriminatory animus on the part of her employer in suspending and threatening to terminate her for failing to comply with its policy, her retaliation claim met the same fate. ( Norman v NYU Langone Health System, SDNY, September 30, 2020, Torres, A.)

Your Out of State Website May Now Be Subject to California Accessibility Requirements

California's laws regarding website accessibility pose numerous potential risks for companies, with penalties per violation of up to $7,500 under the California Consumer Privacy Act ("CCPA") and $4,000 under the Unruh Civil Rights Act ("Unruh Act").  Recently, an appellate court in the Fourth District further clarified the exact reach of California's jurisdiction to almost any website that sells to California residents, even if such activity is not explicitly directed

In the case of Thurston v. Fairfield Collectables of Georgia, LLC filed August 26, 2020 in the Court of Appeals of California, Fourth District, Division Two ("Thurston v. Fairfield"), the court broadly applied California website accessibility laws to a Georgia-based company.  We summarize the details of the lawsuit enclosed, changes that can be made to address accessibility and why businesses need to implement these changes now.

Reps. Correa and Budd introduce bipartisan legislation to create ADA business website compliance standards

On Friday, October 2, Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) introduced the bipartisan Online Accessibility Act, which creates guidance to help businesses ensure their website is compliant with the Americans with Disabilities Act (ADA). This bill will increase website accessibility and reduce predatory lawsuits filed against businesses.

Rep. Lou Correa said, “A predictable regulatory environment is critical for small businesses. Unfortunately, when it comes to website compliance, these regulations aren’t clearly defined. This bill ensures that small businesses know what they need to do to be ADA compliant. It’s a simple, bipartisan, and common-sense solution that will put this problem behind us.”

Rep. Budd said, “Last year, over 2,000 website accessibility lawsuits were filed by plaintiffs alleging that certain websites were not ADA compliant. This bill solves the problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content.”

American Bankers Association said, “Bankers strongly support making websites easily accessible to the disabled community. We support the “Online Accessibility Act,” because it would bring legal clarity to the treatment of business websites under the Americans with Disabilities Act, and at the same time helps stem the tide of frivolous demand letters and lawsuits that do nothing to make websites more accessible.”

Read the bill here (pdf).

Stressed at Work? Here’s When to File for Disability Benefits

Employee may be able to file for short-term disability with proper medical diagnosis, but there are other options to consider

Employee’s right to privacy during accommodation of illness or disability

Lauren Scricca worked as a Clinical Nurse for the University of California Irvine Medical Center (UCI) and was assigned to the Acute Rehab Unit. Throughout the 10 years she worked for UCI, she was commended for her performance and had several promotions.

She was fired in 2018. The Daily Journal reports the following:

Lauren has a hearing disability. When she started work for UCI, she said that her employer initially accommodated her in her assigned department. However, for most of her tenure, the employer took no steps to accommodate her in other departments. This prevented her from “floating” to other units when scheduled to do so.

About a year before she was fired, UCI instituted cost cutting measures that reduced the number of shifts available to nurses. All nurses were then required to either float or be “called out.” Lauren wanted to float but could not because there were no accommodations in other units. Instead of accommodating her, her manager exempted Lauren from either floating or being called out. This resulted in Lauren being given full shifts at the expense of the other nurses. Lauren told her manager she did not want this special treatment. However, the manager ignored her and then went on to inform the other nurses that Lauren would be treated differently.

The other nurses, thus, resented Lauren. Some nurses began to claim for the first time, after eight years of working with her, that they never saw her use a stethoscope. The manager charged Lauren with “falsification of records” for reporting lung health on medical charts without using a stethoscope. Lauren showed that she used a special expensive stethoscope that allowed her to hear when listening to patients’ lungs. This stethoscope had to be carried in her pocket and had to be kept in her locker. She used it only when seeing patients behind closed curtains. Despite this, UCI fired her.

Lauren sued UCI for wrongful termination based on disability discrimination and a failure to accommodate her disability. She alleged that the reason for her termination was false and pre-textual, and that the employer’s decision to terminate her was motivated by her hearing disability, which UCI had not fully accommodated over the years.

For employers with 5 or more employees, California law prohibits discrimination based on disability or medical condition. Employees may not be terminated or discriminated in compensation or other conditions of employment based on their disability or medical condition.

An employee suffering from a disability or medical condition is entitled to reasonable accommodation. Allowing temporary leave may constitute reasonable accommodation.

The employer must in good faith determine whether a disabled employee can be transferred or reassigned to a vacant position. The employer is in a better position to know what jobs are vacant or may become vacant. The law also entitles the disabled employee to “preferential consideration” in reassignment of existing employees.

Under the American with Disabilities Act (ADA), an employer may not tell other employees that an employee is receiving a reasonable accommodation as this may amount to a disclosure that the individual has a disability. The ADA and California’s privacy laws specifically prohibit the disclosure of medical information except in certain limited situations. These situations do not include disclosure to coworkers.

If an employer is asked by an employee about why a coworker is receiving a “different” or “special” treatment, the employer must point to a policy of assisting employees who encounter difficulties in the workplace. Many of the workplace issues encountered by employees are personal, and in these circumstances, the employer should enforce policies that respect employee privacy.

Lauren’s case went to trial for 9 days. After 2.5 hours of deliberation, the jury returned a verdict in favor of Lauren, awarding her $1,136,942 on various causes of action including failure to reasonably accommodate and failure to engage in the interactive process.

California's mental health parity law will require coverage of more conditions
California Governor Gavin Newsom has signed into law S.B. 855, which repeals California's mental health parity law and replaces it with a broader requirement on health plans and disability insurers to cover medically necessary treatment of mental health and substance use disorders under the same terms and conditions applied to other medical conditions, establishes new requirements for medically necessary care determinations and utilization review, and bans discretionary clauses in health plan contracts. The law is effective on January 1, 2021.

Michigan's health insurers agree to provide COVID-19 testing, treatment at no cost through end of 2020
Governor Gretchen Whitmer and the Michigan Department of Insurance and Financial Services (DIFS) have announced that the state has secured agreements from nearly all of the state's health insurers to waive all out-of-pocket costs for COVID-19 testing and treatments through the end of 2020, including copays, deductibles, and coinsurance. These agreements cover more than 92 percent of the commercial health insurance market in Michigan.

City Of WeHo Celebrates Disabilities Awareness Month

The City of West Hollywood and its Disabilities Advisory Board are hosting two events to recognize Disabilities Awareness Month, which takes place in October each year. 

This year marks the 30th anniversary of the Americans with Disabilities Act (ADA). The ADA is landmark civil rights legislation that works to increase access and opportunity for people with disabilities across society, including in the workplace.

The first event will be held on Wednesday, October 28, 2020 at 6 p.m. The City will virtually host its 22nd Annual Disability Service Awards.

This year, the Disability Service Awards will honor essential workers who support people with disabilities during the Corona-virus (COVID-19) pandemic. Members of the West Hollywood community are encouraged to nominate individual workers or groups of individuals for a Disability Service Award. Essential workers are those who conduct a range of operations and services that are typically essential to continue critical infrastructure operations. The essential workforce includes but is not limited to workers in: healthcare and public health; critical retail; transportation; childcare; critical trades; and nonprofits and social service organizations.

On Thursday, October 29, 2020 from 9 a.m. to 12 p.m. the City will host an outdoor flu vaccination clinic at the Plummer Park Community Center, located at 7377 Santa Monica Boulevard. This free flu vaccination clinic for adults is provided by Cedars-Sinai Community Health Improvement in partnership with the City of West Hollywood. Getting an annual flu shot is one of the most effective ways to protect oneself and the community against the flu.

Nurses from Cedars-Sinai will conduct screenings and temperature checks before participants are allowed to receive a vaccination. City staff and Cedars-Sinai nurses will ensure social (physical) distancing protocols are followed. Nurses will have full PPE and require participants to wear a face covering. Face coverings will be offered to those who do not have them. Participants are asked to stay home if experiencing signs of illness or not feeling well.

The City of West Hollywood’s Disabilities Advisory Board was created in 1995 and has nine members. The Disabilities Advisory Board addresses issues affecting people with disabilities, including ADA compliance, transportation, housing, access to City government and services for people with disabilities, and makes recommendations to the West Hollywood City Council relative to the adoption of programs, policies, or ordinances of benefit to the constituency.

To view the 22nd Annual Disability Service Awards will visit the WeHoTV website link:

Television broadcasts are available within the City of West Hollywood’s boundaries on Spectrum Cable Channel 10. In addition, programming may be viewed using streaming platforms by searching “WeHoTV” within the search functions of AppleTV, Amazon FireTV, AndroidTV, and Roku services. It will also be available live and for replay at the City’s WeHoTV YouTube channel:


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