Logic Staffing to Pay $170,000 to Settle EEOC Discrimination Lawsuit
Western Washington staffing and recruiting company Logic Staffing LLC has agreed to pay $170,000 and implement hiring policy and procedure changes to settle a federal disability lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced.
The EEOC's investigation found that when a well-qualified job applicant used Video Relay Service (VRS) to return a call to the recruiter, he was told that his inability to hear would pose a safety risk. Although the applicant repeatedly explained that he had successfully performed similar work in the past without any safety issues, the recruiter stated that Logic Staffing did not hire people who are deaf and ended the call.
The Americans with Disabilities Act (ADA) prohibits rejecting a qualified applicant because of a disability. After an investigation by EEOC Investigator Isabel Jeremiah and after first attempting to reach a pre-litigation settlement through its conciliation process, the EEOC filed suit (CIV# 18-CV-1594) in U.S. District Court for the Western District of Washington.
Under the 3 1/2 -year consent decree settling the suit, signed by U.S. District Court Judge Ronald Leighton, Logic Staffing will pay $170,000 to the applicant, hire an ADA consultant to assist in the development of policies, procedures and training, and provide reports throughout the duration of the decree to the EEOC. The company will also post notices about the new policies and procedures on its website, job announcements and company bulletin boards.
Entertainment Benefits Group Settles Two EEOC Lawsuits for $925,000
The Miami-based travel and entertainment company Entertainment Benefits Group (EBG) has settled sexual harassment and disability lawsuits for $925,000 and injunctive relief with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced.
According to one EEOC lawsuit, EBG failed to provide accommodations to employees with disabilities and failed to engage in the interactive process required by law, often claiming that doing so would jeopardize its relationships with EBG's business partners. In a second lawsuit, the EEOC charged EBG with failing to investigate allegations of third-party harassment and not taking corrective actions to cease the harassing behavior. The EEOC further contends that EBG retaliated against employees who requested accommodations, were associated with someone with a disability or who complained about harassment.
Such alleged conduct violates the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the District of Nevada (U.S. EEOC v. Entertainment Benefits Group, Case No: 2:19-cv-01134-GMN-VCF and 2:19-cv-01135-RFB-EJY) after first attempting to reach a pre-litigation agreement through its conciliation process. After conciliation, the parties reached an early settlement leading to the simultaneous filing of the complaints and consent decree settling the suit.
Pursuant to the decree, EBG will provide $925,000 in monetary relief to the victims. In conjunction with the monetary relief, EBG will develop a centralized tracking system for employee requests for disability accommodations; create a procedure for the handling and investigation of employees' harassment complaints; and provide effective ADA and Title VII training for human resources, management and other personnel. The court will maintain jurisdiction of the case for the decree's four-year term.
"Customer or partner preference is not a justification for non-compliance with the ADA or Title VII," said Anna Park, regional attorney for the EEOC's Los Angeles District, which includes Las Vegas in its jurisdiction. "We commend EBG for resolving this complaint and for putting in place measures to prevent discrimination within its workforce."
Patricia Kane, acting local director of the EEOC's Las Vegas local office, added, "Employers should take every opportunity to review their practices to ensure they are complying with federal law. The EEOC is committed to creating workplaces free of discrimination and harassment. Under this decree, EBG has taken steps to change their practices and create a more inclusive work environment for all employees."
According to the company's website, www.entertainmentbenefits.com , EBG is an e-commerce company that specializes in live entertainment and travel.
Two of the six national priorities identified by the Commission's Strategic Enforcement Plan (SEP) are for the EEOC to address emerging and developing issues in equal employment law and to prevent harassment through systemic litigation and investigation.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.
Rhode Island Family Dollar Ordered To Make Stores ADA Compliant
Rhode Island U.S. Attorney Aaron L. Weisman's office received several complaints that stores are not ADA compliant.
A popular chain of discount retailers has agreed to address accessibility issues at stores across the state. Family Dollar Stores settled a federal lawsuit alleging that the company's 29 Rhode Island stores are not compliant with the Americans with Disabilities Act.
As party of the agreement, the company will pay a $7,500 civil penalty to the government and correct all violations within six months.
The complaint was filed following an investigation by the Rhode Island United States Attorney General Aaron L. Weisman's office after several complaint were filed by people with disabilities. The ADA bans all discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." Despite being a private business, Family Dollar falls under the public umbrella of the ADA's Title III.
According to Weisman's office, Family Dollar's Rhode Island locations are not accessible enough for people with disabilities, including aisles, entrances and parking spots.
Family Dollar cooperated with the investigation and agreed to change the placement of their carts, merchandise and other items so they will not hinder accessibility to those with mobility issues, both inside and outside of stores. In addition, an employee will be named an ADA Coordinator and all regional, district and store managers will undergo ADA training within 60 days.
Ninth Circuit Adopts But-For Causation Standard in ADA Discrimination Claims
Rejecting the motivating factor causation standard, the U.S. Court of Appeals for the Ninth Circuit declared that the “but-for” standard of causation applies to Americans with Disabilities Act (ADA) discrimination claims.
Dr. Michael Murray filed suit against the Mayo Clinic and related defendants after he was terminated, alleging that his former employer discriminated against him in violation of the ADA. At trial, Murray submitted a jury instruction based on the motivating factor standard of causation.
The district court instead instructed the jury to apply a but-for causation standard to Murray’s ADA claim, requiring that the plaintiff prove he was discharged because of his disability. The jury returned a verdict for the defendants on all claims and Murray appealed.
Murray pointed to a 2005 Ninth Circuit decision, Head v. Glacier Northwest, Inc., where the federal appellate panel held that ADA discrimination claims should be evaluated under a motivating factor causation standard and argued that the opinion remains good law despite subsequent U.S. Supreme Court decisions.
But the panel disagreed, finding that Head was abrogated by Supreme Court opinions in Gross v. FBL Financial Services, Inc. (2009) and University of Texas Southwestern Medical Center v. Nassar (2013).
In Gross, the justices held that the Age Discrimination in Employment Act (ADEA) requires a plaintiff to prove that age was the ‘but-for’ cause of the employer’s adverse decision, declining to extend the motivating standard of causation to employment discrimination cases brought under the ADEA. Four years later, the Court reached the same conclusion with regard to Title VII retaliation claims in Nassar.
“Because Head’s reasoning is clearly irreconcilable with Gross and Nassar, we overrule Head’s holding that a plaintiff bringing a discrimination claim under Title I of the ADA need show only that a disability was a motivating factor of the adverse employment action,” the Ninth Circuit wrote. “We hold instead that an ADA discrimination plaintiff bringing a claim under 42 U.S.C. § 12112 must show that the adverse employment action would not have occurred but for the disability.”
In Head, the panel relied on the reasoning of sister circuits, but prior Ninth Circuit precedent provided no further analysis of the text or purpose of the ADA in support of applying a motivating factor causation standard, the court said. And the court’s switch to the but-for standard follows the decisions of all the circuits that have considered the issue after Gross and Nassar, including the Second, Fourth and Seventh Circuits.
“We join our sister circuits in holding that ADA discrimination claims under Title I must be evaluated under a but-for causation standard,” the court concluded.
To read the opinion in Murray v. Mayo Clinic, click here.
Why it matters: In an employer-friendly move, the decision brings the Ninth Circuit in line with similar rulings from the Second, Fourth and Seventh Circuits and aligns with Supreme Court precedent in ADEA and Title VII discrimination cases establishing that the but-for standard of causation applies and not the motivating factor standard.
Communicating Effectively Under the ADA: What Your Organization Needs to Know
Labor & Employment Newsletter
With the increase in communication and notices being sent to customers in multiple industries, one area companies in the 21st century need to be well aware of relates to communication disabilities under the Americans with Disabilities Act (ADA). Customers with vision, hearing, or speech disabilities must be accommodated. What form that accommodation takes, however, will vary considerably. Businesses and governmental entities should be sure to have an established policy in place on how they will provide effective communication that takes the customer’s desired method into account.
General Requirements
The ADA requires that government entities (under Title II) and business organizations (under Title III) communicate “effectively” with customers with disabilities and their companions. Accomplishing this effective communication may require the entity to provide auxiliary aids based on consideration of the nature, length, complexity, and context of the communication along with the person’s normal method of communication. The Department of Justice, Disability Rights Section has a very useful bulletin on effective communication under the ADA.
Particulars
Does the customer get to dictate their aid? Not exactly, but you should listen to it. A Title II employer is required and a Title III employer is encouraged to give primary consideration to the choice of aid or service of the individual. But you do not need to be clairvoyant. Covered entities can require reasonable advance notice from individuals requesting aids or services. Walk-in requests should be honored to the extent possible.
Auxiliary Aids and Services
Auxiliary aids and services include “open and closed captioning, including real-time captioning … or other effective method of making aurally delivered information available to individuals who are deaf or hard of hearing.” The type of auxiliary aid will depend, in large part, on the nature and complexity of the communication involved and the context of the communication.
Individuals who are blind or visually impaired may require a reader, Braille availability, larger print, or some enhanced screen.
Individuals who are deaf may require written materials, a sign language interpreter, real-time captioning or maybe a printed script. It will depend on the circumstances, but entities should evaluate what they will have available. Again, an entity is entitled to reasonable notice of the request, and the whole goal is to accomplish effective communication.
Speech disabilities may require providing a translator or allowing additional time with the person.
Companions
A covered entity is also required to communicate effectively with a companion of the recipient of a good or service, such as a parent, spouse, or other relative. And although businesses often expect a person who utilizes sign language to bring a companion to communicate, the ADA places the onus on the covered entity to provide an interpreter with rare exceptions, such as an imminent threat.
Implementation of aids and services could include using available technologies, such as listening systems, open or closed captioning, hearing aids or text telephones, screen reader software, video description or secondary auditory programming (SAP), among many others. Entities should consider utilizing a telecommunications relay service (intermediary communication assistants), video relay service (a subscriber-based service to provide an intermediary), or video remote interpreting (which accesses an off-site interpreter), all of which could be extremely useful auxiliary aids. Each of these technology tools should be evaluated as part of a company’s ADA compliance policy.
There is some limit to the requirements for aids and services; anything that imposes an undue burden on the entity is not required. The undue burden threshold in the ADA context, however, has proven to be pretty high. It will obviously depend on resources, costs, and size, but entities should not be overly expectant that they will be excused by the undue burden limit.
The effective communication requirements under the ADA have been the subject of multiple court actions. For example, a movie theatre must provide open or closed captioning of showings and captioning devices to comply with ADA communication requirements (see Childress v. Fox Assoc.).
In another recent case, Nat’l Assoc. of the Deaf v. Harvard Univ., the court found that the covered entity failed to provide accurate and timely captioning of online audiovisual content. Notably, the court held the university liable even though the content of the university’s website originated from a third party because the regulations do not limit the public accommodation requirements that it chooses to host on its website. The effective communication requirements, however, are intended to address the covered entity’s central purpose or business, not “incidental conveniences.” (see Johnson v. Speedway, LLC, (at *3, no ADA violation was found where claimant sought auxiliary aid to listen to the gas station pump’s media feature because the defendant was in the business of selling gasoline and there was effective communication with the gas station employees to purchase gas).
Title III (for businesses and non-profits) allows only for injunctive relief and attorneys’ fees, not monetary damages, so a claim could become moot if the business remedies the deficiency even after litigation. For a Title II covered entity, a plaintiff can only get compensatory damages if he or she shows an intentional violation or that a covered entity was “deliberately indifferent” to the ADA protections. You should also be aware of state accessibility laws that may have different damage provisions.
Next Steps
First, each company or covered entity should be aware of the ADA requirements for effective communication and have an established compliance policy. The policy should outline how notice of the disability is to be received and processed, how the customer’s desired choice of aid will be considered, what auxiliary aids or technologies will be available depending on the impediment, and describe how those aids will be put to use. Having a comprehensive policy will be your best defense if ever questioned, as one recent case, Hooper v. City of St. Paul, illustrates. In this matter, summary judgment was granted to the city as the ADA policies being examined required “that, when necessary to communicate effectively, appropriate auxiliary aids be provided to qualified individuals” and that the ADA does not require anything more than that.
Second, be sure to have adequate staff training on the policy mandates. The ADA provisions in this context are inherently flexible or “squishy,” similar to the ADA’s interactive process for employers (see Durand v. Fairview Health Servs., whether there was effective communication is “a fact-intensive inquiry and is largely context-dependent;” also see Chisolm v. McManimon, “Generally, the effectiveness of auxiliary aids and services is a question of fact precluding summary judgment”). But an entity “can defeat an ADA claim by ‘demonstrating that an effective means of communication’ other than the claimant’s preferred accommodation was made available” (see Pollack v. Reg Sch. Unit 75; McCullum v. Orlando Reg Healthcare Sys., Inc.).
Finally, take the time to thoughtfully consider how your organization will address effective communication mandates to have a thorough policy and best position your organization for ADA compliance.
Deaf activists warn against FCC push for automatic phone-captioning service
Activists are expressing concerns about the Federal Communications Commission's (FCC) push to adopt a new phone system for people who are deaf or hard of hearing, saying the services may not meet their needs and are potentially biased.
Under the Americans with Disabilities Act (ADA), qualifying deaf or hard of hearing people have access to the Internet Protocol Captioned Telephone Service (IP CTS), which provides transcription for phone calls, similar to television closed captions, through a combination of technology and human interpreters.
Brooklyn Condo Charged With Discriminating Against Disabled
The U.S. Department of Housing and Urban Development (HUD) has charged the developers and architects of a Brooklyn condominium with allegedly discriminating against people with disabilities, amNewYork reports.
The charges name Toll Brothers, Greenberg Farrow Architecture, and others involved with the design and construction of the 40-unit North 8 Condominium in Williamsburg. The charges note that the development's entry has too steep of a slope, does not have enough space between the interior vestibule door and the sliding door to maneuver a wheelchair, and that its intercom, mailboxes, lobby desk and various doors in both common areas and individual dwellings are inaccessible.
HUD said multifamily buildings constructed after March 1991 must contain features that make them accessible and functional for people in wheelchairs, but these mandates were not met in North 8, which received its certificate of occupancy in 2011, according to the charges. The city’s Department of Buildings said it reviews plans for compliance with city codes, including its accessibility standards, when issuing certificates of occupancy, but it cannot enforce federal standards, such as the Fair Housing Act or the Americans With Disabilities Act (ADA).
How Website Accessibility Affects Online Businesses In 2019 And How To Respond
Web accessibility and ensuring your content can be consumed by all people, is one of the most important issues facing online businesses today. Yet still, it remains surprisingly under the radar amongst many brands, particularly with SMBs. Because of this, many small business owners don’t fully understand what the term actually means.
No, web accessibility doesn’t mean ensuring that everyone has access to the Internet (though that’s an important issue, too). Web accessibility refers to ensuring that all online content can be readily consumed by people with disabilities.
Established brick and mortar companies generally command a firm understanding of how the Americans with Disabilities Act (ADA) affects their business operations. But for online companies, the needs of those with disabilities are often overlooked.
However, times are changing and online businesses have a greater responsibility than ever to prioritize their website accessibility.
What to Do When Physical and Mental Disabilities Cause You to Fail the Polygraph
Earlier this month, we discussed what your polygraph options are as a member of the clearance community when you’re telling the truth, the whole truth, and nothing but the truth – but you fail the examination anyway due to severe anxiety. (The short answer is: not much. A failure or inconclusive result is enough for a “suitability denial,” though if this affects you—and it happens to a lot of people—it’s worth checking out the article and learning the facts.) And a while back, we discussed the insidious “guilt grabbers”—when a good, and oftentimes deeply honest, emotional person is asked a question, tells the truth, but is flagged for lying simply because he or she feels guilt for thinking about doing wrong.
But failing a poly implies that you are both physically and mentally suited to taking the test in the first place. And that’s not everyone. The Americans with Disabilities Act and the Rehabilitation Act play a role in the polygraph process, but as with all things clearance related, the rules aren’t so cut and dry as, say, someone who might need a wheelchair ramp or an ergonomic keyboard.