ADA in the News September 30, 2020

Court revives Union Pacific conductor's ADA claim, finding 'extensive search' for accommodation never occurred

Dive Brief:

  • A federal appeals court has revived a Union Pacific train conductor's Americans with Disabilties Act (ADA) lawsuit, saying that the employer's purported "extensive search" for accommodations never occurred (Mlsna v. Union Pacific Railroad Co., No. 19-2780 (7th Cir. Sept. 14, 2020)).
  • Union Pacific maintained rules related to hearing safety that were stricter than federal regulations. Namely, it required certain employees to wear ear protection that met a certain standard. The plaintiff, however, had a hearing impairment and when wearing the usual protection, could not pass a hearing test. He suggested alternatives and the employer said it researched other options, to no avail. He was eventually fired and he sued, alleging Union Pacific failed to accommodate his impairment.
  • A federal district court granted summary judgment for the employer, finding that the plaintiff had not shown that a reasonable jury could conclude that he could fulfill the essential functions of the train conductor job with a reasonable accommodation. On appeal, however, the 7th U.S. Circuit Court of Appeals reversed, reaching a few conclusions. First, questions remain about whether the employer's higher standard was an essential function. Second, the plaintiff showed that a reasonable jury could find that he could have been accommodated with other devices. "Potential reasonable accommodations were not considered which could have permitted [the employee] to wear hearing protection while also meeting the requirements of the hearing acuity regulation," the appeals court said, adding that "once an employee commences the interactive process to find a reasonable accommodation, employers have an 'affirmative obligation to seek the employee out and work with her to craft a reasonable accommodation.'" The court also said that discovery revealed that Union Pacific's "extensive search" for devices never occurred.

Dive Insight:

The ADA prefers that employers engage in an "interactive process" of looking for a reasonable accommodation, experts have said.

Employers are generally encouraged to engage in such a process to identify possible accommodations once an employee has requested a change. An employer's failure to engage in the process can serve as evidence of disability discrimination. Similarly, if an employee refuses to engage or discuss alternatives, the employer may be in a position to show that it made a good-faith effort to accommodate.

Employers may have to make accommodations to allow employees to perform the essential functions of their jobs. What constitutes an "essential function," however, is often a topic of dispute. The Mlsna court noted that consideration often will be given to the employer’s judgment, especially written job descriptions.  Union Pacific maintained such a description and, had it been the only evidence available, the district court’s conclusion that wearing hearing protection is an essential function of a conductor would not be "second guessed." But, the court noted, the lower regulatory standard exposed a factual dispute.

Dollar Tree Distribution, Inc. Sued by EEOC for Disability Discrimination

Dollar Tree Distribution, Inc., violated federal law when it failed to accommodate or hire a deaf applicant for an entry level warehouse job at its Ridgefield, Washington facility, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed yesterday.

According to the EEOC, a Dollar Tree Distribution supervisor deliberately conducted the interview in a manner in which the applicant could not fully understand the supervisor, even though the applicant had clearly identified himself as deaf and wore visible hearing aids. The supervisor also failed to respond to questions from the applicant about potential accommodations that would enable him to do the work if  hired.  The company later notified the applicant that he had not been hired, even though records show that in the same month it hired many other applicants without hearing impairments.

Under the Americans with Disabilities Act (ADA), it is illegal to ignore a deaf applicant's request for an accommodation and to refuse to hire an applicant because of his disability.  After first attempting to reach a voluntary settlement through conciliation, the EEOC filed the lawsuit (EEOC vDollar Tree Distribution, Inc., Civil No. 3:20-cv-05959) in U.S. District Court for the Western District of Washington, and seeks monetary damages on behalf of the deaf applicant, training on anti-discrimination laws, posting of notices at the work site, and other injunctive relief.

“The ADA is a promise that applicants with disabilities will be given the full opportunity to prove their capabilities and contribute to this nation,” said Nancy Sienko, director of the EEOC’s Seattle Field Office.  “To disregard an applicant’s request for an accommodation during the interview sabotages that person’s opportunity to compete on a level playing field.”

“Congress enacted the ADA to remove barriers that keep qualified people with physical or mental disabilities out of the work force,” said EEOC Supervisory Trial Attorney John Stanley.  “We hope this lawsuit will highlight the importance of ensuring that all staff involved in recruiting and hiring understand how to respond to a disability accommodation request.”

Court: Employee who advocated for the disabled is ADA-protected

Can employees be protected under the ADA if they aren’t disabled themselves?

The 6th Circuit recently decided in certain circumstances, yes. Here’s a rundown of the case.

Clashed with school board

Cherryl Kirilenko-Ison was a school nurse for Danville Independent Schools in Kentucky.

She clashed with the school board while voicing her opinion on the best ways to educate and treat two diabetic students.

Kirilenko-Ison and school officials had various disagreements over which activities were appropriate for the students. When the school board failed to extend Kirilenko-Ison’s contract after this incident, she sued, claiming retaliation for engaging in ADA-protected activity.

The school board claimed the decision not to rehire her had nothing to do with her arguments regarding the diabetic students.

A district court dismissed the case, but the 6th Circuit revived it, saying Kirilenko-Ison engaged in “protected activity by challenging the school’s deficient administration of a free appropriate public education.”

This case reminds us of what courts in the past have ruled: Advocating for members of a protected class is a protected activity. This means that retaliation against advocates is prohibited as well.

Cite: Kirilenko-Ison v. Board of Education of Danville Independent Schools, 9/4/20.

7th Circuit has Spoken: Two Pound Lifting Limit, and Other Restrictions Can be an Unreasonable Accommodation under the ADA

Seyfarth Synopsis: Athleisure company is rightfully able to terminate the employment of individual with physical limitations, despite that individual's ability to delegate such functions of her position. See Tonyan v. Dunham's Athleisure Corp., No. 19-2939 (7th Cir. 2020).

Angela Tonyan was employed by Dunham’s Athleisure Corp. as a store manager. She was fired when, after a shoulder injury, she could no longer perform physical tasks such as lifting and reaching. Indeed, her doctor imposed permanent lifting and reaching restrictions.

As usually goes, Tonyan argued that physical tasks weren’t an essential part of her job with the retailer. But the lower court and Seventh Circuit panel disagreed, finding that job descriptions in Tonyan’s case record describe physical tasks — sometimes involving lifting items weighing up to 50 pounds or more — as essential functions of her position. And even though physical tasks only took up 30% of her work day, Illinois and Seventh Circuit precedent on the issue has consistently found that an essential function does not need to encompass the majority of an employee’s time, or even a significant amount of time.

Ultimately, Tonyan lost her case for two reasons:

First, she never disputed that the descriptions were created through a detailed process or that the descriptions reflected the actual experience of a store manager in Dunham’s stores. Nor could she. After all, the Dunham’s store manager description she signed in August 2011 says her job’s essential functions include constantly reaching outward, frequently lifting or otherwise handling items up to 50 pounds and occasionally lifting goods even heavier than that.

Second, the court opined something nuanced in this case: the ability to delegate a task does not necessarily render the task not-essential. Interestingly, Tonyan’s argument that physical tasks were not essential because of the ability to delegate did not hold water. The lower court and Seventh Circuit panel reasoned that the tools available to delegate essential tasks were always available, with or without physical limitation, but just because they were available does not mean that it would be appropriate to delegate these tasks to other employees, and deem them non-essential.

These reasons, combined with a smattering of other evidence that Dunham’s expects its managers to perform physical tasks as part of its efforts to keep labor costs low, led to the holding that a permanent lifting restriction can impact an individual’s ability to manage a retail store, despite the ability to delegate physical tasks.

So what does this ruling tell us?  Well first, it is an excellent reminder to ensure that job descriptions are up-to-date.  If a two pound lifting requirement is actually an essential function of the position, employers should make sure that this is documented accurately in the job description.  Additionally, consider having employees sign off on job descriptions at various times throughout the employment relationship – including upon hire, during reviews/promotion opportunities, and in conjunction with annual reviews.

Absentee Ballot Applications Are Not Accessible to Voters with Disabilities in 43 States

More than 40 states have absentee ballot applications that are not fully accessible to millions of visually impaired voters and those with other disabilities, according to the results of an audit being released by digital accessibility company Deque Systems on Wednesday.

Pointing to Pandemic-Fueled 'Surge,' Research Company Says 70% of ADA Website-Accessibility Lawsuits Now Filed in NY

Five plaintiffs-side firms are behind more than 73% of all New York ADA website-accessibility federal filings, “which shows this is an extremely focused effort,” said UsableNet, which conducted the research.

Plenty of work to do around disabilities and a livable city

As Baby Boomers age, there is growing awareness of people with disabilities, especially in terms of public transportation, healthcare, entertainment options—even digital accessibility.

In 2020, those with disabilities must consider how well local government is handling the pandemic. Transportation is another serious challenge.

“In urban areas, even if the public buses have ramps or lifts, many drivers are not trained to accommodate individuals with different disabilities. Disability-specific travel services can be expensive and inconvenient,” says Carolyn Shivers, assistant professor of human development and family science at Virginia Tech.

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