Nurse fired for 'tantrum,' not disability or leave request
A charge nurse terminated for unprofessional conduct—she threatened and cursed employees after learning her son had been fired—and after she returned from 25 days of leave, failed to convince a federal district court in Connecticut that her discharge violated the FMLA or the ADA. Granting summary judgment against her claims, the court explained that although her employer had denied her FMLA leave request based on her insufficient medical certification, it granted her a personal leave of absence and thus she was not prevented from taking leave. And while she informed her supervisor of her problems dealing with her job, there was no evidence she ever told her employer she needed an accommodation. (Blodgett v 22 South Street Operations, DConn, July 8, 2019, Bolden, V.)
Factory worker who couldn't wear safety shoes wasn't a qualified individual under the ADA
A factory worker who was terminated due to her medically documented inability to wear protective footwear because of her diabetes and feet deformities failed to defeat summary judgment on her disability bias and failure-to-accommodate claims since she was undisputedly not a qualified individual under the ADA. A federal court in Virginia held that the employer—whose attempts to help her find acceptable protective footwear had proved unsuccessful—had legitimate business reasons for requiring her to wear safety shoes since exempting her from the requirement could have jeopardized its certification and if she suffered a foot injury it could be subjected to lost production time and increased workers' compensation costs. (Holmes v General Dynamics Mission Systems, Inc , WDVa, July 1, 2019, Jones, J.)
Obesity Continues to Divide Courts: Washington’s High Court Says Obesity Qualifies as an Impairment (US)
As we previously discussed here and here, courts are split regarding the extent to which obesity qualifies as a disability under the Americans with Disabilities Act (“ADA”). The Second, Sixth, Seventh and Eighth Circuit Courts of Appeal have held that obesity must be accompanied by an underlying physiological disorder for it to constitute a disability, whereas the First Circuit and some district courts have come to the opposite conclusion, particularly when the plaintiff presents expert testimony supporting the contention that obesity is a physical impairment, regardless of an underlying physiological condition.
The Ninth Circuit wrestled with this question in 2018 in a case brought under the Washington Law Against Discrimination (“WLAD”). Because the case involved a question of state law, the Ninth Circuit certified a question to the Washington Supreme Court to resolve whether Washington courts would conclude that obesity, standing alone, constitutes a disability under the WLAD. On July 11, 2019, the Washington Supreme Court answered the question in Taylor v. Burlington N.R.R. Inc., holding that obesity alone is, in fact, a physical impairment under the broad scope of the WLAD.
In Taylor, the plaintiff received a conditional offer of employment as an electronic technician, but the offer was contingent upon the applicant’s passing a physical examination and medical history questionnaire. The plaintiff’s body mass index (BMI) was over 40, which is considered “severely” or “morbidly” obese. The employer referred his results to its chief medical officer (CMO). The CMO determined that he could not determine whether the applicant was medically qualified for the job because of his concerns over the significant health and safety risks the applicant’s extreme obesity posed. The employer was inclined not to proceed with hiring the plaintiff, but offered to reconsider its decision if he underwent and paid for additional medical testing, which he could not afford. The employer informed the applicant that his only remaining option was to lose 10% of his weight and keep it off for six months.
The applicant sued the employer, alleging it violated the WLAD by refusing to hire him because of his perceived disability – obesity. The district court granted summary judgment to the employer holding that, under the WLAD, a plaintiff alleging disability discrimination based on obesity must show that his or her obesity is the result of an underlying physiological condition or that the defendant perceived the plaintiff’s obesity as having such a cause. During the appeal to the Ninth Circuit, the Washington Supreme Court answered the certified question posed to it by holding that “obesity always qualifies as an impairment under the plain language of [the WLAD] because it is a ‘physiological disorder, or condition’ that affects many of the listed body systems,” including, among others, the neurological, musculoskeletal, digestive, endocrine, and respiratory systems. The court relied on publications from the medical community, including the American Medical Association, and reasoned that, “although obesity can be caused by life choices, it is still a disease, just as lung cancer is still a disease even though it can be caused by the choice to smoke cigarettes.” The court opined that the Washington State legislature intended to adopt a comprehensive definition of “disability” to protect against discrimination, even broader than that under the ADA. Therefore, the court held that it is illegal for employers in Washington to refuse to hire otherwise qualified prospective employees because the employer perceives them to be obese.
Employers across the nation should remain cautious when making employment decisions involving obesity, as additional jurisdictions continue to weigh in on this issue. We will keep you apprised of new rulings on this topic.
Kroger settles claims it failed to accommodate worker with vision impairment
Dive Brief:
- Kroger has agreed to pay $40,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of a visually impaired man who the EEOC says was unlawfully fired after he requested an accommodation to complete his employee orientation.
- The grocery store chain offered Michael Haugabrook a job as a courtesy clerk at its Jonesboro, Georgia store in March 2016. Haugabrook accepted the position and requested an accommodation to complete a computer-based portion of his orientation. Kroger’s management refused to accommodate him, the EEOC says. While Haugabrook was completing the assessment, he was called to the store manager's office and fired.
- In addition to the monetary settlement, Kroger agreed to make "significant changes in its hiring process." These changes include providing employees with vision disabilities access to tools and resources such as magnification for computer-based and written onboarding and training programs, educating the workforce in Jonesboro on disability discrimination, posting a notice about the lawsuit for as long as the consent decree is in effect and reporting to the EEOC all employee requests for an accommodation under the Americans with Disabilities Act (ADA).
Dive Insight:
The ADA requires employers to provide reasonable accommodations to a qualified individual with a disability, unless doing so would create an undue hardship. Undue hardship means that the accommodation would be "too difficult or too expensive to provide, in light of the employer's size, financial resources, and the needs of the business," the EEOC has explained. Because undue burden is a high legal standard for employers to meet, employment lawyers generally encourage employers to provide accommodations.
To determine worker accommodations, employers are expected to engage in an interactive, good-faith process. An employer can show good faith in several ways, such as meeting with the employee; requesting information about the employee's conditions and limitations; asking the employee about preferred accommodations; showing signs that it has considered the request and, if the request seems to be onerous, offering and discussing available alternatives.
Failure to engage in the interactive process isn't a stand-alone violation under federal law, though it is unlawful in Caifornia. However, it can be used as evidence of discrimination, while good-faith engagement in the interactive process can serve as a defense to a discrimination claim.
When courts examine failure-to-accommodate claims, they look at who caused the breakdown in the process, Michelle Seldin Silverman, a partner at Morgan Lewis, previously told HR Dive. Courts examine the "back-and-forth" and consider which person made the final offer, she said.
To help facilitate requests for accommodation under the ADA, some experts have suggested that HR should train supervisors to kick off the process with five key words: "How can I help you?"
Supervisors’ Comments Are Direct Evidence of Disability Discrimination
A trial is warranted under the Americans with Disabilities Act (ADA) when the employer's supervisors are alleged to have directly discriminated against and failed to accommodate an employee suffering from episodic panic attacks and depression, a federal district court ruled.
Less than six months after starting employment at Crain Automotive Holdings LLC, the claimant had chest pains at work. Believing it to be a heart attack, she left to go to the emergency department. Following a few days of treatment, she was diagnosed as having panic attacks. She returned to work, only to suffer another attack. Approximately one week after her first episode, Crain terminated her employment, with the claimant's supervisors telling her that things were not working out due to her health problems and that she needed to take care of herself.
The Equal Employment Opportunity Commission (EEOC) sued on behalf of the claimant for failure to provide a reasonable accommodation and disability discrimination. Denying summary judgment, the District Court found that a jury would decide whether the claimant's diagnosis of anxiety, depression and panic attacks substantially limited her ability to take care of herself, communicate with others or think coherently, which are major life activities under the ADA as amended. Citing Congress's intent to broaden the definition of a "disability," the district court disregarded Crain's arguments that the claimant could perform other major life activities and could work through her episodic panic attack.
Crain also maintained that it was unaware of her disability. However, the district court found that the timing of the termination in conjunction with the claimant's e-mails reporting her symptoms and treatment were sufficient to infer that Crain knew of her disability. Similarly, it was for a jury to decide whether Crain received her doctor's note, which stated that she needed three weeks off work. The district court explained that an employee with a disability need not use magic words like "reasonable accommodation" when requesting an accommodation but must provide sufficient information under the circumstances, such as a doctor's note, when the employer can be fairly said to know of both the disability and the need for an accommodation.
While stray remarks in the workplace by nondecisionmakers or statements made by decisionmakers unrelated to the decisional process do not constitute direct evidence of discrimination, the nature of the supervisors' statements was different. Here, the comments at the time of termination were tied directly to the claimant's disability, thus amounting to direct evidence of discrimination sufficient for a jury' consideration.
EEOC v. Crain Automotive Holdings LLC, No. 4:17-CV-00627 (April 11, 2019).
Professional Pointer: When medical conditions impede an employee's ability to perform the essential functions of his or her job, managers should be encouraged to consult with HR to consider whether there may exist a disability and the need for an accommodation and, if so, to ensure an appropriate and required interactive dialogue. Discharging an employee immediately following a medical emergency is likely more often than not a bad idea, and tying the decision to terminate to an alleged disability is the type of direct evidence that will guarantee a trial.
Sports Venues And The Americans With Disabilities Act
Throughout the country, sports teams and their venues have been hit with an uptick of public accommodation lawsuits under Title III of the Americans with Disabilities Act (ADA), along with its state and local counterparts. The ability to obtain attorney’s fees makes these cases attractive to plaintiffs’ firms.
Plaintiffs include fans, who team up with firms to travel around facilities or sign onto websites to “test” ADA compliance, and others who felt aggrieved after attending an event.
The claims range from not removing physical barriers to access, restricting fans with dietary restrictions from bringing outside food, forbidding service animals to enter, as well as operating websites that are inaccessible to those who are visually impaired or blind.
Title III of the ADA was passed in 1990. It provides that “[n]o individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The law has requires sports teams to make reasonable modifications to policies, practices, and procedures to make their goods and services available to people with disabilities. Plaintiffs argue that this applies to physical locations as well as commerce-driven websites despite differing court rulings.
While some companies opt to settle claims early to avoid the cost of litigation, others are taking a hard stance and defending their ADA compliance in court. For example, this past June, in Nevarez v. Forty Niners Football Co. LLC, No. 5:16-cv-07013 (N.D. Cal.), the San Francisco 49ers moved for the court to deny the plaintiffs’ claims and declare that the team’s stadium complies with all federal and state public accommodation laws. The plaintiffs include a class of wheelchair-bound fans and their family members who assist them. They allege the property does not comply with accessibility standards for wheelchair use in and around the stadium.
The lawsuit seeks to correct hundreds of supposed claims including, for example, barriers between satellite parking lots and the stadium, a lack of accessible seating at all price levels, restrictions to disabled and non-disabled groups purchasing tickets together, and physical obstacles within the stadium. Along with requesting the defendants to make repairs, the plaintiffs are seeking statutory damages and attorneys’ fees.
The defendants argue that certain parking lot accessibility issues have already been corrected and the remaining allegations do not violate disability laws.
If the case proceeds to trial, it will be interesting to see how a jury rules, as the court has already decided that it will review only a sampling of barriers to determine whether the stadium met accessibility standards.
This case is only one recent reminder of the ongoing Title III disability-related litigation, generally occurring in California, Florida, and New York. There does not appear to be an end of these claims in sight. Sports leagues, teams, and stadium operators should consider reviewing their policies and websites with counsel before being hit with litigation.
ADA & Website Compliance >> Lawsuits By The Disabled Against Websites Spike
2018 saw a nearly 200% increase in the number of lawsuits targeting websites and mobile apps for their alleged failure to comply with Title III of the Americans with Disabilities Act (ADA), which prohibits "places of public accommodation" from discriminating against persons with physical and other disabilities on the basis of those disabilities. (A majority of federal courts and the Department of Justice (DOJ) consider consumer-facing websites to constitute "places of public accommodation.")
This rise in website ADA claims has prodded companies to attempt to make their websites ADA compliant, but that effort has been stymied by the lack of a definitive legal standard for compliance. Under the Obama administration, the DOJ had proposed support for the World Wide Web Consortium's Web Content Accessibility Guidelines 2.0 Level AA Guidelines (WCAG 2.0 AA) as the minimum standard for website accessibility. However, under the current administration, the DOJ has changed course by stating that websites "have flexibility in how to comply with the ADA[.] . . . [N]oncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA."
Despite the uncertainty as to whether WCAG 2.0 AA is the official legal standard for website accessibility, courts consistently look to it as a benchmark. (Even though the updated WCAG 2.1 standards were issued in 2018, courts generally have continued to reference WCAG 2.0 AA in their website assessments.)
WCAG 2.0 AA requires, among other things, that websites provide (1) captions for audio and video content, (2) machine-readable text and audio descriptions for onscreen content, (3) operability entirely through a keyboard, (4) minimum contrast ratios for text and images, and (5) the ability to change background colors, font colors and font sizes.
Ryan Webster: Does the Americans with Disabilities Act require business websites to be navigable by blind individuals?
In 1990, President George H.W. Bush signed the Americans with Disabilities Act, making it the law of the land. The ADA’s stated purpose is to “provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities”; to eliminate discrimination against individuals with disabilities; to regulate commerce in order to address major areas of discrimination faced day to day by people with disabilities; and “to ensure that the Federal Government plays a central role in enforcing the standards.”
Title III of the ADA says that no individual shall be discriminated against 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 by any person who owns, leases, leases out or operates a place of public accommodation.
The ADA’s definition of public accommodation includes most hotels, restaurants, bars, theaters, stadiums, grocery stores, hardware stores, banks, laundromats, travel services, funeral parlors, gas stations, professional offices (accountant, lawyer, insurance office, health care provider and hospital), stations for public transportation, museums, libraries, galleries, parks, zoos, amusement parks, other places of recreation, private schools, other places of education, day care and senior citizen centers, homeless shelters, food banks, other social service centers, gyms, spas, bowling alleys, golf courses, other places of exercise or recreation and other retail and service establishments.
CUs achieve appellate-level win in frivolous ADA suit
The U.S. Court of Appeals for the Seventh Circuit ruled in favor of a credit union facing a frivolous lawsuit claiming violations of the Americans with Disabilities Act Monday. CUNA and the Wisconsin and Illinois Credit Union Leagues filed a brief in support of Aurora Policemen CU, Aurora, Ill., in Carello v. Aurora Policemen CU.
Credit unions around the country have faced lawsuits due to uncertainty with how the ADA applies to websites. This is the second win this year for credit unions at the appellate level, the first coming in the Fourth Circuit. Both wins create binding precedents within their respective circuits.
A Handy FAQ for Service Animals in the Workplace
Work with your employment counsel if you receive an accommodation request for a service animal from an employee.
How To Travel With A Chronic Illness, According To 18 People Who Do It Regularly
Going on vacation, or even getting out of town on business, can be a necessary break from everyday life. But traveling to and from a destination and dealing with unexpected changes can be stressful. Flight delays, missed connections, lost luggage, and hotel reservation issues can all put a huge damper on a trip. For people who live with chronic illness, traveling means having to worry about these common issues on top of issues like inaccessibility, ableism, and health risks.