EEOC Sues Yale New Haven Hospital for Age and Disability Discrimination
Hospital Unlawfully Subjected Only Physicians Over 70 to Neuropsychological and Eye Exams, Federal Agency Charges
Settlement Agreement:
· Children's Choice Academy
· 441 Post Road, LLC d/b/a The Circle
· Academy Express
· O.C. Medical Associates
· North Dakota State University
· Super 8
· AmericInn by Wyndham
Sense Overcomes Sensibility: Ninth Circuit Comes Aboard But-For Test for ADA
Those who live by a multi-level analysis die by it: pull out an essential step and the entire logical edifice comes crashing down. That is one lesson to be gleaned from the unanimous published decision by a panel of the Ninth Circuit. There are others, but that will have to wait until the end of this piece.
Discrimination in employment is regulated by three laws, which have interrelated provisions: Title I of the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and Title VII of the Civil Rights Act of 1964, covering race, sex, color, religion, and national origin. The issue presented in Murray v. Mayo Clinic (No. 17-16803, August 20, 2019) was whether the test for discrimination in a discharge under the ADA is “but for the disability” or the disability as a motivating factor in the decision to discharge. The trial court gave a “but for” instruction to the jury and the panel affirmed.
Methadone User Can Sue Under ADA
As I discussed in a blog post last year, the Equal Employment Opportunity Commission has been bringing cases on behalf of applicants/employees who use lawfully prescribed opioids (including methadone) against employers who fail to conduct an individualized assessment of the applicant/employee to determine whether those drugs made them unqualified for the position. In EEOC v. Steel Painters LLC, the U.S. District Court for the Eastern District of Texas held that a reasonable jury could find that the employer did just that.
Ninth Circuit Finds Obesity a Protected Disability Under State Law
In recent years, a number of federal courts have drawn differing conclusions with regard to whether obesity is a protected disability under the Americans with Disabilities Act. While some courts have reached this conclusion, others have characterized obesity as a mere condition and not a disability absent evidence of related medical issues. Last month, the Ninth Circuit Court of Appeals gave plaintiffs an alternative means to pursue these claims while indicating that it also considers obesity to be a protected disability under the ADA.
In Taylor v. Burlington Northern Railroad Holdings, Inc., the plaintiff alleged that the defendant rescinded a job offer made to him because it regarded him as disabled due to his weight. The plaintiff sued under Washington’s state disability discrimination law, and the district court dismissed the complaint, concluding that that law does not consider obesity to be a protected impairment. On appeal, the Ninth Circuit first asked the Washington Supreme Court for its opinion on this question.
The state court held that obesity is a protected disability under the state discrimination law. As a result, the Ninth Circuit reversed the grant of summary judgment and remanded the case to the district court. In its opinion, the Ninth Circuit indicated that the ADA is at least as broad as the Washington law, meaning that it would look favorably on claims alleging obesity as the basis for a discrimination claim under federal law.
Plaintiffs in federal appellate circuits that have found obesity excluded from the ADA’s definition of disability – the Carolinas fall under this category – will now likely use state anti-discrimination laws as an alternative means of seeking redress. In situations where the plaintiff does not actually suffer from any obesity-related medical complication, he or she can claim that the employer regarded them as disabled due to their weight.
Young Workers Seek Mental Health Accommodations, Employers Try to Keep Up
Accommodations for anxiety, PTSD and other conditions under the Americans With Disabilities Act differ for the workplace versus college
N.C. Federal Court Allows Former Employee's Disability Claims To Proceed To Trial
A North Carolina federal trial court recently denied an employer's request to dismiss a former employee's disability discrimination and retaliation claims under the Americans with Disabilities Act ("ADA"). The case provides a helpful reminder of why employers must be ready to articulate and provide concrete support for any alleged "undue hardship" a requested reasonable accommodation would create before denying it.
Case Facts
In 2002, Mohammed Imam began his employment with Cumberland County's Information Services Technology Department. Imam was able to perform his tasks remotely, and as a result, often telecommuted from his home in Raleigh, North Carolina.
On August 11, 2016, Imam's physician diagnosed him with deep vein thrombosis ("DVT") in his right leg. On August 16, 2016, the physician sent a letter to the county informing it of the condition and requesting that he be permitted to work from home for two weeks until the blood clot in his leg stabilized. The county granted the request.
On September 6, 2016, after Imam had commuted for two weeks, the county added "operational duties" to Imam's job description. Such "operational duties" could not be performed remotely, and Imam had previously not been required to perform such duties. Before the county added these duties to Imam's job description, two county employees had been responsible for performing them, and there were other employees trained on how to complete them.
A few days later, on September 15, Imam's physician sent another letter to the county advising that Imam's DVT had additional complications and requesting that the county permit him to telecommute for an additional two to three months. The county refused this request, indicating that Imam's new operational job duties (which, according to the county, comprised 30% of his duties) required him to work on-site daily.
On October 20, Imam met with county personnel to discuss the operational duties. The county again denied Imam's request that he work remotely and informed him that he was expected to report to work on November 3. After Imam failed to do so, he was terminated on November 14. Following Imam's termination, the employees who had previously been performing the operational duties continued to do so for an additional six months, at which point the duties transitioned to two other employees already on staff.
In December 2017, Imam sued the county for discrimination and retaliation under the ADA. The county moved for summary judgment (i.e., a motion before trial asserting that there is no dispute as to any material fact and that the requesting party is entitled to a favorable ruling under applicable law), which the trial court denied.
In denying the county's motion and allowing the case to proceed to trial, the court said, among other things, that there was a genuine dispute of material fact as to why the county could not accommodate Imam's second request for additional telecommuting. In this regard, the court cited the fact that the same individuals who performed the operational responsibilities before they were assigned to Imam performed them for an additional six to seven months following Imam's termination. In addition, the court noted that, when the duties were ultimately reassigned, they were assigned to other personnel already on staff.
The "Undue Hardship" Trap
While the ADA does not require employers to transfer the essential functions of a disabled employee's position to other employees or hire an individual to perform the essential functions of the position, the ADA may require that an employer reallocate or redistribute marginal job functions that an employee is unable to perform because of a disability, so long as doing so would not cause an undue hardship on the employer.
While employers may be tempted to decline reasonable accommodations, such as reallocating marginal job functions, on the basis that it would be inconvenient, the ADA requires a greater showing—a reasonable accommodation that allows an employee to perform the essential functions of his/her position must create an "undue hardship" in order for the employer to be able to reject it. To demonstrate an "undue hardship," employers must be able to show the change would entail "significant difficulty or expense;" would be "unduly extensive, substantial, or disruptive;" or "would fundamentally alter the nature or operation of the business." As this standard is often more difficult to meet than employers may realize, before denying a reasonable accommodation request on this basis, employers should ensure they can articulate and provide concrete support for the alleged hardship.
Community members reflect on ways accessibility impacts homeless services
Shelters and warming centers can provide a place for homeless people to escape harsh conditions during the winter. But for disabled individuals, homeless services are not always accessible, said Cathleen O’Brien, community organizer of housing at Access Living, an advocacy group for disability rights.
She added that disabled people can be more vulnerable to homelessness because of low employment, discrimination from landlords and financial reasons.
“Disabled people often have to make a choice between affordable and accessible housing,” O’Brien said. “So we’re often some of the first people pushed out, because we were already renting at the top of our budget in order to have an accessible place.”
You & the Law: Website Accessibility 101
I adore online shopping. As a consumer, the convenience of buying gifts, clothes and everyday essentials at 11 p.m. from my couch is priceless. However, being a vendor is another, more complex matter. One of the many challenges for companies conducting business online is evaluating website accessibility under the Americans with Disabilities Act (ADA).
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Prioritizing Voting Assistance for Arizonans with Disabilities
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A new report says polling places in Arizona and elsewhere are too often inaccessible to people with disabilities, despite the requirements of the Americans with Disabilities Act.
The report from the National Disability Rights Network says when some polling stations are found to be out of ADA compliance, officials simply close them rather than bring them up to standards.
That's an inconvenience at best -- and at worst, can disenfranchise these voters.
J.J. Rico, CEO of the Arizona Center for Disability Law, says a review of some Arizona polling places found that officials had cited ADA noncompliance as a reason for closing them.
"The goal of the report was to highlight some of the inaccessibility that we noted on a visit to Coconino County, and to encourage polling sites, county recorders' offices, to stay abreast of the rules and regulations to make sure things are accessible," Rico states.
The Arizona Secretary of State's office says it doesn't keep records on polling places that have been closed, but provides all counties with a checklist to make sure voting stations are ADA compliant.
Rico says most of the problems the center found were minor and could be easily remedied by election officials.
"In Arizona, we see a lot of little problems, turn-knobs vs. levers, maybe things that need to be moved," he states. "Better signage, bells that could ring if someone needed assistance. A lot of little things, but not an issue where a polling site needs to be completely closed down."
Rico says the mission of his agency is to protect the rights of Arizonans dealing with physical, mental, psychiatric, sensory or cognitive challenges.
"Arizona Center for Disability Law runs a hotline during voting days that someone can call in if they do experience an inaccessible voting location, or they can't gain access to the polling site," he points out. "They can call us at 1-800-927-2260."
For the Presidential Preference Election, Maricopa County officials have increased the number of ballot boxes this year to about 230, up from just 60 during the problem-plagued 2016 election. That vote is set for March 17.
Putting Autism To Work
Hiring workers with autism can be a boon for productivity. But CEOs leading the charge should be aware of legal issues best addressed in the early stages of planning.