Employer's Inflexible Attendance Policy Violated ADA, Feds Say
HR.BLR.com
An employer’s attendance policy violated the Americans with Disabilities Act (ADA) because it was too rigid, the U.S. Equal Employment Opportunity Commission (EEOC) has alleged in a lawsuit.
Wayne Farms, LLC, one of the nation’s largest poultry producers, capped the number of allowable employee absences and “made little to no allowance for disability-related absences,” the commission said in a statement announcing the suit.
The employer’s policy required progressive attendance point accumulation for nonmanagerial employees, according to the EEOC’s claim. Employees were allowed nine absences in a rolling 12-month period; a tenth point meant automatic termination. The policy called for exceptions only if an absence was approved for Family and Medical Leave Act leave or was granted for vacation, jury duty, or other similar reasons.
That effectively amounts to a “qualification standard, employment test or other selection criteria that screens out or tends to screen out individuals with disabilities and is not job-related or consistent with business necessity,” the EEOC alleged.
“The ADA requires that employers provide reasonable accommodations, including time off, to workers with disabilities,” said Delner-Franklin Thomas, an EEOC district director, in a statement. “Attendance policies that categorically limit an employee's absences, without consideration of the individual circumstances of disabled employees, can run afoul of federal law.”
The complaint names two employees who were fired under the policy: one had taken partial and full days off because of her asthma; the other was sometimes unable to work because her position on the deboning line exacerbated her Carpal Tunnel Syndrome and the employer had denied her request for a transfer. The complaint also discusses a potential class of current and former employees.
The suit seeks an order requiring Wayne Farms to amend its policy and provide a class of current and former employees with remedies such as back pay, front pay, and reinstatement (EEOC v. Wayne Farms, LLC, No. 5:16-cv-01347-HGD (N.D. Ala. Aug. 18, 2016)).
EEOC Sues MedStar Harbor Hospital For Disability Discrimination
Harbor Hospital, Inc., doing business as MedStar Harbor Hospital, violated federal law when it refused to provide a reasonable accommodation to and instead fired a respiratory therapist because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced yesterday.
According to EEOC's suit, nine years before starting working as a respiratory therapist at MedStar, Jerome Alston received a kidney transplant due to renal failure. As a result, he is required to take medication which compromises his immune system and increases his risk of infection. Due to his weakened immune system, MedStar gave Alston a "work-around" which excused him from working in negative pressure rooms, which are isolation rooms with a mechanical ventilation system designed to trap infectious airborne materials. MedStar also gave pregnant employees similar work-arounds. In November 2013, however, when Alston requested such a work-around, MedStar refused and abruptly terminated him because of his disability, EEOC charged.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability or a record of a disability. EEOC filed suit (EEOC v. Harbor Hospital Inc., t/a MedStar Harbor Hospital, Civil Action No. 1:16-cv-03138-GLR) in U.S. District Court for the District of Maryland, Baltimore Division, after first attempting to reach a pre-litigation settlement through its conciliation process.
Wendy's Franchisee Sued for $4M by Mentally Impaired Worker
Bloomberg BNA
A former Wendy’s employee in Puerto Rico who has intellectual and other impairments sued the franchisee for $4 million, claiming new managers waged a campaign of harassment to drive him out ( Lopez Vazquez v. WENDCO of Puerto Rico, Inc. , D.P.R., No. 3:16-cv-02628, complaint filed 9/12/16 ).
Lexology
On August 29, 2016, a California Court of Appeal backed away from an earlier a decision that employers must accommodate employees associated with individuals with a disability. (Luis Castro-Ramirez v. Dependable Highway Express (August 29, 2016) Case Nos. B261165, B262524.) Before the court’s groundbreaking holding in April 2016, no other court had held that the Fair Employment and Housing Act ("FEHA") requires an employer to provide a reasonable accommodation for an employee who is associated with a disabled individual. Upon petition for rehearing, the court stated it was not deciding the issue, however, it stated in passing that the FEHA may reasonably be interpreted to require accommodation based on an employee’s association with a physically disabled person.
2015 ADA lawsuit resolved in Ithaca College's favor
The Ithacan
A lawsuit filed against Ithaca College on Oct. 8, 2015, that sought $10 million in damages over a lack of disability compliance, has been resolved in the college’s favor.
The case was dismissed following a motion from the college stating that the plaintiff, alumna Bernadette C. Carter ’14, of Essex County, New Jersey, failed to present a claim. Judge David Hurd of the Northern District of New York approved the motion, dismissing the case July 29, 2016.
According to the Legal Information Institute, a resource database compiled by the Cornell University Law School, “failure to state a claim” is a defense asserting that even if all the factual allegations in a complaint are true, they are insufficient to establish a cause of action.
“We are pleased that the judge agreed with the college’s position that the suit should be dismissed due to the plaintiff’s failure to state a claim,” David Maley, senior associate director for media and community relations, stated via email.
EEOC Closes In On Claustrophobia As A Disability
Lexology
No matter what you think is or is not a disability, you place your company at risk if you don’t take seriously an applicant or employee who claims to suffer a disability, and fail to “interact” with that person to determine a reasonable accommodation.
EEOC Replaces Outdated Guidance On Retaliation
Mondaq News Alerts
Recently, the U.S. Equal Employment Opportunity Commission (EEOC) replaced its 1998 Compliance Manual section on retaliation, issuing its final Enforcement Guidance on Retaliation and Related Issues ("the Guidance"). The Guidance reflects the EEOC's consideration of feedback received from approximately 60 organizations and individuals.
Almost 45% of EEOC Charges include a claim for retaliation, more than any other basis of alleged discrimination. The EEOC generated the Guidance with the stated intention of reducing the likelihood of retaliation.
The Guidance summarizes relevant retaliation provisions under each statute the EEOC enforces, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA). In conjunction with the Guidance, the EEOC issued a Questions-and-Answers reference guide and a Small Business Fact Sheet to provide an overview.
A statement on online course content and accessibility
UC Berkeley
C Berkeley Vice Chancellor for Undergraduate Education Cathy Koshland issued this statement today:
UC Berkeley has long been committed to ensuring equal access to students, faculty and staff with disabilities. Despite the absence of clear regulatory guidance, we have attempted to maximize the accessibility of free, online content that we have made available to the public. Nevertheless, the Department of Justice has recently asserted that the University is in violation of the Americans with Disabilities Act because, in its view, not all of the free course and lecture content UC Berkeley makes available on certain online platforms is fully accessible to individuals with hearing, visual or manual disabilities.
The department’s findings do not implicate the accessibility of educational opportunities provided to our enrolled students.
In response, the university has moved swiftly to engage our campus experts to evaluate the best course of action. We look forward to continued dialog with the Department of Justice regarding the requirements of the ADA and options for compliance. Yet we do so with the realization that, due to our current financial constraints, we might not be able to continue to provide free public content under the conditions laid out by the Department of Justice to the extent we have in the past.
In many cases the requirements proposed by the department would require the university to implement extremely expensive measures to continue to make these resources available to the public for free. We believe that in a time of substantial budget deficits and shrinking state financial support, our first obligation is to use our limited resources to support our enrolled students. Therefore, we must strongly consider the unenviable option of whether to remove content from public access.
Please know that we fully intend to exhaust every available option to retain or restore free public availability of online content. It is our hope that we will find an appropriate resolution with the Department of Justice that allows us to serve the extended seeing- and hearing-impaired community and continue to provide free online content.
The Department of Justice letter can be viewed here.
Alabama agrees to changes for inmates with disabilities
Alabama Today
A federal judge on Friday gave final approval to a lawsuit settlement regarding how inmates with disabilities are housed in Alabama prisons.
U.S. District Judge Myron Thompson signed the agreement reached between inmates and the Alabama Department of Corrections. The state prison system agreed to survey prison facilities and make changes to settle claims brought by inmates under the Americans with Disabilities Act and the Rehabilitation Act.
The department will have 32 months to make any architectural changes required to make sure inmates with disabilities are appropriately housed and can access prison programs and facilities. The state also agreed to screen inmates for physical, mental or intellectual disabilities and to hire and train ADA coordinators.