EEOC Sues Colorado Excavating for Disability Discrimination
Gollnick Construction, Inc., which does business as Colorado Excavating, violated federal law when it fired an employee because she had a seizure, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.
According to the EEOC's suit, Colorado Excavating fired office assistant Dora Marquez just four days after she suffered a seizure at work. Marquez felt the oncoming seizure and informed the company's office manager before its onset. Despite Marquez leaving the hospital that same day without restrictions, Colorado Excavating fired her four days later because of her disability, the EEOC said.
In addition to firing Marquez, Colorado Excavating failed to accommodate Marquez and to engage in the required interactive process with her to discuss potential accommodations. The EEOC also charged the company engaged in recordkeeping and confidentiality violations by not keeping medical information in separate medical files and by shredding employment applications.
Such conduct violates the Americans with Disabilities Act (ADA). The EEOC sued in U.S. District Court for the District of Colorado (EEOC v. Gollnick Constr. d/b/a Colo. Excavating, Civil Action No. 1:19-cv-02581) after first trying to settle through its conciliation process. The lawsuit seeks monetary damages for Marquez as well as injunctive relief prohibiting Colorado Excavating from discriminating based on disability in the future.
"Far too often, people with seizure disorders are denied employment opportunities because of myths and fears about their condition," said Regional Attorney Mary Jo O'Neill of the EEOC's Phoenix District Office. "These individuals are or can be highly productive members of the workforce, and the ADA mandates they should have an equal opportunity to achieve success."
EEOC Sues Waterway Gas & Wash Company for Disability Discrimination
Waterway Gas and Wash Company, a national provider of car wash services, violated federal law when it fired an employee because he had a seizure, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.
According to the EEOC's suit, Waterway fired employee Tyson Aoyagi from its Lone Tree, Colorado location about two weeks after he suffered a seizure at work and requested accommodation for his disability. Aoyagi was in the process of training for a promotion to Team Leader when he had the seizure. Despite Aoyagi's doctor releasing him to return to work and perform most of his job functions, Waterway fired Aoyagi because of his disability, the EEOC said. The suit also alleges that Waterway refused to discuss his request for accommodation and denied it without explanation. The EEOC further alleged that the company discharged Aoyagi in retaliation for requesting reasonable accommodation for his disability.
The Americans with Disabilities Act (ADA), prohibits employers from making employment decisions based on disability and from retaliating against individuals who request accommodation. The EEOC sued in U.S. District Court for the District of Colorado (EEOC v. Waterway Gas & Wash Co., Civil Action No. 1:19-cv-02583) after first trying to settle through its conciliation process. The lawsuit seeks monetary damages for Aoyagi as well as injunctive relief prohibiting Waterway from discriminating based on disability in the future.
"The ADA requires employers to accommodate employees with disabilities who are qualified to do their jobs," said Regional Attorney Mary Jo O'Neill of the EEOC's Phoenix District Office. "A seizure at work should prompt a conversation with the employee and medical experts about possible accommodations - not discharge."
EEOC Denver Field Director Amy Burkholder added, "This case is a perfect example of a talented employee who was rising through the ranks being discarded after one manifestation of his disability, regardless of his ability to do the job. This type of discrimination is a violation of federal law."
EEOC Files Two Lawsuits for Employees with Epilepsy
The U.S. Equal Employment Opportunity Commission (EEOC) filed two lawsuits charging two separate employers with disability discrimination after they fired employees who had seizures at work. Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from making employment decisions based on disability and from retaliating against individuals who request accommodation or oppose disability-based discrimination. These cases demonstrate the agency's commitment to using its enforcement powers, as necessary, to address discrimination against individuals with disabilities.
In the first suit, filed against Gollnick Construction, which does business as Colorado Excavating, the EEOC alleges the company engaged in disability discrimination when it fired office assistant Dora Marquez just four days after she suffered a seizure at work. Before firing Marquez, Colorado Excavating failed to engage in an interactive process with her to discuss potential accommodations.
In the second suit, filed against Waterway Gas and Wash Company, a national provider of car wash services, the EEOC similarly alleges the company engaged in disability discrimination when it fired Tyson Aoyagi from its Lone Tree, Colorado location about two weeks after he suffered a seizure at work. Waterway refused to discuss his request for reasonable accommodation. According to EEOC's suit, the company fired Aoyagi because of his disability and in retaliation for requesting reasonable accommodation.
"Negative stereotypes and fears about people with epilepsy are inadequate grounds for refusing to accommodate the disability or for terminating an employee with a seizure disorder," said EEOC Regional Attorney Mary Jo O'Neill. "These two lawsuits stress that employment decisions should not be driven by stereotypes and fears about people with epilepsy."
"Despite medical advances and increased awareness about epilepsy, public misunderstanding and discrimination still exist for those with this brain disorder," said Sarah Klein, CEO of the Epilepsy Foundation of Colorado. "Most people with epilepsy don't need any accommodations at work so employers should not presume that epilepsy has any impact on an employee's ability to do their job."
Studies show that the unemployment rate for individuals with epilepsy is two to three times that of the general population. Also, individuals with epilepsy who are gainfully employed are likely to be underemployed or earn less than people who do not have epilepsy.
EEOC settles disability suit with corrections firm
A firm that provides services in Delaware correctional facilities and other state institutions will pay $550,000 to settle charges by the U.S. Equal Employment Opportunity Commission that it unlawfully enforced inflexible maximum leave policies in violation of the Americans with Disabilities Act.
The EEOC said Tuesday that Smyrna, Delaware-based Connections CSP Inc. fired people with disabilities who needed additional unpaid leave beyond the required 12 weeks under the Family and Medical Leave Act.
Connections settles years-old disability discrimination suit, will pay $550,000
Connections Community Support Programs has agreed to pay $550,000 to settle a years-old disability discrimination lawsuit.
The settlement will go to five former Connections workers who were terminated after their Family and Medical Leave Act time ran out, according to the U.S. Equal Employment Opportunity Commission.
The federal agency filed the lawsuit in 2017 on behalf of the former workers, including a woman who was injured on the job and another who suffered ovarian cancer.
In addition to the monetary relief for the former workers, the settlement prevents Connections from violating the Americans with Disabilities Act, which prohibits discrimination based on disability.
Connections, the state's largest contractor for physical and mental health services, must also implement reasonable accommodation policy to all employees, provide training on the ADA and post a notice regarding the settlement.
The settlement does not mean Connections admits liability or fault.
"Although Connections disagreed with the merits of the allegations, in order to ensure that critically needed funds were used to help people in need and not to pay for litigation costs, we made a business decision to settle this suit," Connections CEO Cathy McKay said in a statement.
"Connections is proud of the record we have built over the last three decades of helping people in extreme need in our community, including thousands of people with opioid use disorder and serious psychiatric and intellectual disabilities," McKay said. "We made the decision to settle this case to avoid distraction and cost that would take away from fulfilling our mission."
Virtually the entire amount of the settlement was paid by the nonprofit's insurance carrier, she added.
Earlier this year, Connections settled a state civil lawsuit which claimed it violated the state's whistleblower protection act when it fired a former clinical supervisor for calling police before speaking to the organization's leadership.
Diana Nicholson Agnetti, in her lawsuit field in Superior Court, said she called 911 after a man entered Connections' Long Neck facility and left a 30-page document indicating he may be a threat to himself or others. The lawsuit says Agnetti was fired shortly after Connections officials questioned her for calling authorities.
She claimed it was her "duty" to do so.
Terms of the settlement are unknown because there is a confidentiality agreement.
According to the federal lawsuit, from 2014 to 2015, Connections fired employees with disabilities who needed additional unpaid leave beyond the required 12 weeks under the Family Leave Act.
The nonprofit also failed to provide other requested reasonable accommodations that would have allowed workers with disabilities to remain employed, such as reassignment to vacant positions.
Instead, the EEOC said, Connections placed those employees on FMLA leave and terminated them when their leave expired.
"Federal law makes it clear: employers must provide reasonable accommodations as needed, including modifying leave policies or reassignment to a vacant position, unless it would be an undue hardship – which was not the case here," EEOC Regional Attorney Debra M. Lawrence said in a statement.
When Alcohol Is Involved, the ADA Distinguishes Between ‘Having a Disability’ and ‘Disability-related Misconduct’
Being under the influence of alcohol at work does not equal a disability, ever.
Alcoholism is an ADA-protected disability.
Yet the ADA does not require that employers accommodate alcoholics by permitting them to drink, or otherwise be intoxicated, on the job.
Case in point? Dennis v. Fitzsimmons (D. Col. 9/5/19).
Jared Dennis was employed as a deputy in the Summit County, Colorado, Sheriff’s Office. He’s also an alcoholic. While on administrative suspension following his wife’s allegation of domestic violence, Dennis got drunk at home the night before his criminal arraignment. The following morning, he failed his intake breathalyzer. Thereafter, the Sheriff’s Office terminated him for, among other rules violations, conduct unbecoming of an officer and being impaired while on duty.
Dennis sued his former employer for disability discrimination, claiming that it fired him because of a protected disability — his alcoholism.
The court disagreed, and dismissed Dennis’s lawsuit.
It is generally recognized that alcoholism can constitute a disability entitling the employee to protection under the ADA…. The more difficult question is whether Deputy Dennis has come forward with evidence that his termination resulted from his disability, rather than his conduct.…[W]hen the disability at issue is alcoholism, the ADA … draw[s] a distinction between “having a disability” and “disability-caused misconduct.”
It is undisputed that the SCSO based its decision to terminate Deputy Dennis’ on the fact that he reported for his arraignment in an intoxicated state. Thus, there is no dispute that SCSO’s decision arose from his unsatisfactory conduct on the morning of July 28, not from his abstract status as an alcoholic. As noted, the ADA … do[es] not extend protection to actions of alcohol-influenced misconduct, even if the employee’s alcohol use is related to the disability of alcoholism. Accordingly, Deputy Dennis has not come forward with evidence that indicates that his termination was based on his status as a disabled person (as opposed to his conduct).
Addiction is a protected disability. But it does not mean you have to permit its use to accommodate the disability. Under the influence at work does not equal a disability, ever.
California Appellate Court Adopts Broad Standing for Claims Based on Asserted ADA Violations
The California Supreme Court recently issued a ruling in White v. Square, Inc. that suggested standing to assert claims against websites for violations of the Unruh Civil Rights Act will be interpreted very broadly. In a case filed by a vision-impaired plaintiff against a restaurant, a California appellate court has now concluded that the broad standing suggested in White applies to disability discrimination claims under Unruh for website noncompliance. Given the recent positive judgments for plaintiffs in these cases, entities with an online presence should ensure that their websites comply with the accessibility requirements of state and federal law.
In Thurston v. Midvale Corp., No. B291631 (Cal. Ct. App. Sept. 3, 2019), the California appellate court affirmed summary judgment in favor of the vision-impaired plaintiff, finding that she had standing to sue the defendant restaurant for operating a website that the plaintiff’s screen-reader software was unable to read and that the website failed to comply with California discrimination law, which in this context adopts the federal Americans With Disabilities Act. The website allowed users to reserve a table 24 hours a day, but did not afford the same benefit to website visitors who used screen-reader software. Although the website provided a telephone number that the plaintiff could have used to make a reservation, she would have been limited to making reservations only during the restaurant’s hours of operation. The plaintiff filed a complaint against the restaurant’s owner, asserting that its website violated the Unruh Civil Rights Act, which adopted the ADA.
The trial court granted summary judgment in favor of the plaintiff. On appeal, the appellate court found that the plaintiff had standing to bring the claims under the Unruh Act, concluding that the recent rule articulated by the California Supreme Court in White applied to online businesses, and a plaintiff visiting a website with the intent to use its services was “for purpose of standing, equivalent to presenting oneself for services at a brick-and-mortar store.”
The appellate court also affirmed the trial court’s holding that there were no triable issues of fact as to whether offering an alternative method of reserving by telephone was an appropriate auxiliary aide. The court agreed that requiring the plaintiff to contact the restaurant by telephone imposed an inappropriate burden on her because she had to wait for a response during normal business hours, while sighted users were not faced with such a restriction.
The California Court of Appeal’s ruling confirms that, for now, California courts will apply the broad Unruh Act standing requirements to website accessibility compliance cases. This opinion further cements the need for entities to take steps to ensure that their websites operate in compliance with the ADA and state law. Businesses should aim to conform their websites to the WCAG 2.0 guidelines that have been widely adopted as the standard that enables visually impaired individuals to participate equally in a website’s products and services. The opinion does not, however, address the concern that experts could have different opinions on whether a website complies with the WCAG 2.0 guidelines, which is just one of many concerns expressed by those seeking guidance from the Department of Justice.
Although the appellate ruling directly addressed the application of White v. Square, Inc., it still leaves open several potential defenses to be explored in future actions. For example, the appellate court declined to address whether a website that is not connected to a brick-and-mortar location would be susceptible to ADA-based Unruh claims, since that “hypothetical” was not at issue with the subject website, which was integrated into a brick-and-mortar location. Likewise, there was no factual analysis of whether a round-the-clock answering service, whether by phone or email, to provide a real-time response to reservation requests could have rendered moot the plaintiff’s claims. Indeed, given the fast pace of developing case law in this area, there remain many defenses for website operators that have not yet been fully evaluated by the courts on their merits.
Dallas Electric Utility to Pay $50K to Settle Federal Disability Discrimination Suit
A Dallas-based electric utility company will pay $50,000 and furnish other relief to settle a disability discrimination lawsuit, federal officials said.
A consent decree in the U.S. Equal Employment Opportunity Commission’s (EEOC) lawsuit against Oncor Electric Delivery Company LLC was approved by U.S. District Judge Sam R. Cummings on Sept. 9, 2019.
According to the EEOC’s suit, Delores McCraney, a representative who worked for Oncor for 13 years, was fired from Oncor’s Dallas headquarters when she refused to sign an agreement promising to abide by a company requirement to disclose, directly to her supervisor, all medications, whether prescription or over-the-counter, that could affect job performance, including dosages and changes of dosages.
The EEOC said that this broad requirement violated the prohibition against medical inquiries of employees under the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability in the workplace.
Under EEOC guidance, inquiries about employees’ medications are permitted only in limited circumstances, in positions affecting public safety, and only where the employer can demonstrate that an employee’s impaired ability to perform job duties will result in a direct threat.
The EEOC filed suit in U.S. District Court for the Northern District of Texas, Dallas Division, Case No 3:18-cv-01786, after first attempting to reach a pre-litigation settlement. In this case, the EEOC sought back pay plus compensatory and punitive damages, as well as injunctive relief, including an order barring similar violations in the future.
The three-year consent decree settling the suit prohibits future discrimination and retaliation. In addition to the monetary relief, the company must disseminate its revised policy to all employees; provide annual training regarding the very limited new rule as to medication disclosures; provide avenues for reporting violations of the new policy; and warn of discipline for any manager who continues the prior discriminatory practices.
Florida Business Cleared In Firing Over Ebola Fear
A federal appeals court Thursday rejected arguments that a Tampa business violated the Americans with Disabilities Act when it fired a massage therapist because she would not cancel a trip to Ghana amid an Ebola epidemic in Africa.
Is extreme obesity a physical characteristic or a disability?
Imagine you are a human resources professional or in-house employment counsel and you learn that an employee in your organization is seeking a job transfer or other accommodation because with a body weight of almost 600 pounds, he is too overweight to do his present job. What do you do?
A recent decision from the U.S. Court of Appeals for the Seventh Circuit highlights how courts across the country have interpreted the Americans with Disabilities Act (ADA) in workplace situations involving obesity. If a workplace challenge relating to obesity hasn’t happened in your organization yet, it is increasingly likely to happen soon. The Journal of the American Medical Association reports that rates of American adults with obesity have continued to increase over the past decade according to researchers from the Centers for Disease Control and Prevention (CDC). Their findings comport with a trend line dating back to the 1980s. With that trend in mind, let’s examine Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019).
Mark Richardson worked as a bus driver for 13 years. In September of 2010, weighing nearly 600 pounds, Richardson required to undergo a safety assessment following a medical leave. During the assessment, he was unable to perform several safety driving functions (for example, hand-over-hand steering) because of his obesity. Richardson argued under the ADA and related agency regulations and guidance that severe obesity should automatically qualify as an ADA impairment, without having to show any other underlying physiological cause.
The Seventh Circuit disagreed and found Richardson’s interpretation of the ADA and its regulations to be overbroad. Instead, the court held that an individual’s weight is generally a physical characteristic, not a physical impairment. Obesity qualifies as a physical impairment only if the individual’s body weight falls outside the normal range and occurs as a result of another physiological disorder. With this holding, the Seventh Circuit joined sister circuits in the Second, Sixth, and Eighth Circuits. Other jurisdictions, however, have reached different conclusions, and this issue remains an unsettled area of the ADA.
State disability laws further complicate the issue of whether obesity qualifies as a disability. For example, the Third Circuit has not determined categorically whether obesity is a disability that substantially limits a major life activity under the ADA. See, for example, Lescoe v. Pa. Dept. of Corr., 464 Fed.Appx. 50, 53 (3d Cir. 2012). But Pennsylvania state law seems to follow the Richardson line of reasoning in, Philadelphia Electric Co. v. Pennsylvania Human Relations Commission, 68 Pa.Cmwlth. 212, 448 A.2d 701 (1982). On the other coast, however, in 2019, the Washington Supreme Court held that obesity always qualifies as an impairment under Washington state law. See Taylor v. Burlington N. R.R. Holdings, Inc., 444 P.3d 606, 608 (Wash. 2019).
The Richardson decision, despite its employer-favorable ruling, highlights the caution employers must take when making employment decisions involving obese workers. Obesity is often found in conjunction with other conditions such as diabetes, hypertension, or heart disease, any of which may constitute impairments under the ADA. For that reason, the applicability of Richardson may be limited to a particular set of circumstances. And state laws could also differ from interpretations of the ADA in a given jurisdiction. In this unsettled area of disability law, it is important to proceed with caution.