Online-Accessibility Law Moves Many Agency Documents Offline
Documents are disappearing from public view as state departments work to comply with a 2017 law aimed at improving compliance with the Americans with Disabilities Act. The law was meant to ensure all Californians could apply for jobs and find vital information on the state sites. Some departments are choosing to permanently take down documents rather than pay to make them machine-readable or otherwise accessible.
California disability law has costly effects: Documents disappear as state spends millions
Dozens of wildfire reports disappeared from Cal Fire’s websiteas this year’s fire season began.
Thousands of water science reports vanished from theDepartment of Water Resources website.
More than 2 million documents, ranging from environmental impact reports to internal human resources guides, went missing from remote corners of Caltrans’ website.
Employee absent nearly 60% of the time was unqualified under ADA
Dive Brief:
- An employee who needed much more flexibility than she proposed as an accommodation was not a qualified individual entitled to the Americans with Disabilities Act's (ADA) protections, the 6th U.S. Circuit Court of Appeals has ruled (Popeck v. Rawlings Co. LLC., No. 19-5092 (6th Cir. Oct. 16, 2019)).
- Adrianne Popeck, an insurance auditor, had exhausted her Family and Medical Leave allotment. The employer initially approved a disability accommodation that allowed her to occasionally leave early or arrive late, but it became clear she needed more time than proposed and it eventually fired her.
- A district court granted summary judgment to the employer and the 6th Circuit affirmed. "[A]uthorizing Popeck to arrive late or leave early on occasion would not have come close to solving her attendance problem," it said, noting that she missed work nearly 60% of the time. "Because she evidently requires vastly more flexibility and time off than she proposes, Popeck fails to suggest an accommodation that would enable her to attend work in person regularly. She thus cannot establish that she remains 'qualified' for her job."
Dive Insight:
The ADA requires that employers accommodate workers with disabilities, but it doesn't require that essential functions be removed. And whether regular, in-person attendance can be an essential function remains a fact-specific question.
In Popeck, the plaintiff noted that other employees were permitted to work from home. The employer, however, permitted only certain job groups to work from home — a policy that did not extend to auditors working with confidential information.
Similarly, the 9th Circuit last year held that regular attendance can be an essential function for supervisors. And the 8th Circuit recently decided that a worker at an Iowa meat and processing facility who was absent 195 days was not qualified for ADA protection. Appeals courts have reached the opposite conclusion, too: the 6th Circuit has said that full-time presence might not be essential for an HR generalist's job.
Courts often give deference to employers in deciding what constitutes an essential job function. This means that a written job description prepared before advertising or interviewing that spells out what is essential and what is marginal is key, according to the U.S. Equal Employment Opportunity Commission's (EEOC) The ADA: Your Responsibilities as an Employer. A written job description that employees sign can be especially useful when combined with regular reviews of job descriptions.
EEOC, which enforces the ADA, has said it also will consider include the actual work experience of present or past employees in the job; the time spent performing a function; the consequences of not requiring that an employee perform a function; and the terms of a collective bargaining agreement.
Law firms settle suit accusing them of civil RICO conspiracy to collect ADA settlements
Two California law firms have resolved a lawsuit accusing them of engaging in a civil RICO conspiracy by filing multiple lawsuits against small businesses for alleged violation of the Americans with Disabilities Act.
The Moore Law Firm and its successor, the Mission Law Firm, notified the court in a joint Oct. 22 stipulation with the plaintiff that the claims have been resolved, Law360 reports. Lawyer and paralegal defendants associated with the law firms joined in the notice.
Terms of the settlement were not disclosed.
The plaintiff, former restaurant owner Fatemah Saniefar, claimed in a January 2018 amended complaint that the defendants engaged in a civil conspiracy to collect quick ADA settlements by filing about 1,400 cases in the Eastern District of California. The businesses sued for ADA violations would settle because it was cheaper than litigating, Saniefar alleged.
The suit alleged a family-run ADA lawsuit conspiracy involving Kenneth Randolph “Randy” Moore, a partner at the Moore Law Firm, along with his wife, his brother, his stepson and his nephew.
The brother, Ronald Moore, visited establishments later accused in the ADA lawsuits, including the Saniefar family’s now former restaurant, Zlfred’s Restaurant in Fresno, California, the suit said. More than 250 of the firm’s cases were filed on behalf of Ronald Moore, Saniefar alleged.
Ronald Moore contended that he got stuck in the bathroom at Zlfred’s Restaurant and had to holler so loudly for help that his grandson sitting in the dining room heard him and went to his rescue. Witnesses for Saniefar said the incident didn’t happen.
Saniefar alleged that Ronald Moore has claimed that he cannot stand and walk without assistance but taped surveillance showed that assertion to be untrue. The surveillance shows him “walking, kicking, hopping and bending” without any need for support or showing any signs of hesitance, the suit alleged.
In their answer to the amended complaint, the defendants said a federal court had found Moore to be disabled in another case, and the finding was upheld by the 9th U.S. Circuit Court of Appeals at San Francisco, which reviewed the same surveillance video referenced by Saniefar.
U.S. Chief District Judge Lawrence O’Neill refused to dismiss the amended complaint in a March 2018 decision. O’Neill said Saniefar’s allegations about Ronald Moore being disabled were not foreclosed by the 9th Circuit decision.
The parties notified the court of settlement after U.S. Magistrate Judge Barbara McAuliffe refused to extend a deadline to produce text messages involving a paralegal who Saniefar had requested a year earlier. The delay “smacks of gamesmanship,” McAuliffe wrote.
McAuliffe ruled that the defendants had waived certain privileges and protections by failing to produce the documents by the deadline.
Her ruling followed another adverse ruling for the defendants by O’Neill in June. O’Neill granted a motion for sanctions based on allegations that Randy Moore and another defendant tampered with testimony by a witness. O’Neill struck all lawsuit responses by Moore and the second defendant, allowing Saniefar to obtain a default judgment. against them, according to Law360.
A Job Description is Not Determinative When Considering Reasonable Accommodation Requests
Under the Americans with Disabilities Act (“ADA”), an employee is entitled to a reasonable accommodation if the employee has a disability and is a “qualified individual,” meaning that the employee can perform the essential functions of the position with or without reasonable accommodation. When assessing an employee’s request for an accommodation under the ADA, employers often reference the job description to identify the “essential functions” of the position. A recent federal court decision, however, serves as a reminder that the actual job duties—not those listed in the job description—are controlling and that reliance on the job description alone may not carry the day.
In 2015, Mary Wiggins (“Wiggins”) a long-time employee of the City of Montgomery, Alabama (“the City”) applied for a promotion to the position of Revenue Examiner. The job posting and the job description both indicated that the “[w]ork involves inspecting premises … for violations and verifications” and that the “[w]ork is performed primarily in the field…which may involve working in inclement weather, visiting construction sites, climbing stairs, walking over rough terrain…etc.” Wiggins had significant knee problems that would have prevented her from carrying out the site inspection duties but applied anyway, seeking a position as an “Inside Examiner.” The City denied Wiggins’ application and promoted three other candidates to fill its vacant Revenue Examiner positions. Wiggins sued, claiming, among other things, that the City discriminated against her, when it failed to provide her with a reasonable accommodation. The City moved for summary judgment arguing that based on the job description Wiggins was not a “qualified individual” under the ADA. The court denied summary judgment because the evidence suggested that conducting site visits was not as “essential” as the job description and job posting indicated. Two of the individuals promoted instead of Wiggins had not conducted a single site visit or even left the office for field duty during their first 11 months in the position. The Court determined that a jury must determine whether Wiggins could have performed the essential functions of the Revenue Examiner position with a reasonable accommodation (i.e. no site visits) and, therefore, was a qualified individual under the ADA. Employers should regularly review and update job descriptions to ensure they accurately reflect the essential functions of the position and when considering an accommodation request, employers cannot rely on the job description alone. The decision is Wiggins v. City of Montgomery, C.A. No. 2:17-cv-425 (M.D. Al. Sept. 20, 2019)
ADA did not apply to obese BNSF applicant's future risk of impairment - 7th Circuit
A U.S. appeals court on Tuesday said BNSF Railway Co did not violate the federal law prohibiting disability discrimination by barring an obese worker from a “safety-sensitive” job because of his heightened risk of developing sleep apnea, heart disease and other disorders.
A unanimous three-judge panel of the 7th U.S. Circuit Court of Appeals said the ban on discriminating against workers because of perceived disabilities in the Americans with Disabilities Act (ADA) does not extend to a worker’s risk of future impairment, and reversed a federal judge who had refused to toss out plaintiff Ronald Shell’s case.
Best Practices for ADA Compliance
A woman who is both an attorney and a Type I diabetic advises employers on ADA compliance, especially for employees whose disabilities are not overtly visible.
Tenth Circuit: ADA Rights and Obligations Can Be Triggered in Subtle Ways
The U.S. Tenth Circuit Court of Appeals recently issued an opinion in Mestas v. Town of Evansville, reversing summary judgment on an employee’s ADA hostile work environment and retaliation claims — finding the employee’s comments and requests could be construed as protected activity, thus triggering the employer’s duty to explore a reasonable accommodation. The case serves to remind employers that employee protections and employer duties under the ADA can be triggered in unexpected ways.
Mestas, a municipal sanitation worker for the Town of Evansville, suffered an on-the-job back injury during his probationary period that put him out on medical leave for about three months. When he returned to work, Mestas encountered hostility from his superiors in the form of an extension of his probationary period and instructions that Mestas not seek assistance from his co-workers. Mestas subsequently re-injured his back and — without disclosing the re-injury — sought additional time off for treatment, which was granted. Mestas then asked his bosses if he could use his own snow blower in lieu of shoveling snow, specifically because of his back pain. The employer declined the request. After later informing his bosses that he had, in fact, reinjured his back and asking to be excused from shoveling snow, Mestas’ employer told him that he did not “want to hear [his] sh**,” and terminated Mestas the following day — noting “take care of your back and whatever.”
Mestas filed suit against the employer for, among other things, ADA hostile work environment and retaliation. The employer moved for summary judgment, and the trial court opined that Mestas had failed to establish a “record of disability” or that he had engaged in protected activity under the ADA (pre-requisites for succeeding on his ADA claims).
The Tenth Circuit disagreed, finding that Mestas’ numerous requests and treatment could be interpreted by a jury as establishing a “record of disability” and/or as a protected activity under the ADA. If the jury were to side with Mestas on these issues, the employer would have had an obligation to — at the very least — explore a potential reasonable accommodation, and would be precluded from taking adverse action against Mestas for requesting an accommodation.
The Mestas opinion demonstrates that employers cannot sit back and wait for an employee to say, “I’d like a reasonable accommodation.” While the employee certainly needs to “make clear,” in a “sufficiently direct and specific” way, that they require assistance for their disability, this opinion serves to remind employers that they should be careful not to inadvertently (and certainly not deliberately) brush aside comments that could serve as a request for an accommodation under the ADA.
The court’s opinion can be read here.