Third Circuit Clarifies That A Disability Must Be Both “Transitory and Minor” To Qualify Under The Exception To The “Regarded-As” Prong of The ADA (US)
With the Americans with Disabilities Act (ADA) now 30 years old, most people, and certainly all HR professionals and employment lawyers, know that it is unlawful to discriminate against employees (and applicants) on the basis of a physical or mental disability. What is less widely known, however, is that the ADA not only prohibits discrimination based on known or disclosed disabilities, but also discrimination against individuals who are “regarded as” disabled. A recent case from the US Court of Appeals for the Third Circuit (which covers Delaware, New Jersey, and Pennsylvania) examined this “regarded as” prong of the ADA, and specifically, an exception to it when the perceived disability at issue is of short duration and minor in its limitations.
Pandemic-fueled increase in online activity likely to give rise to website accessibility lawsuits
With the COVID-19 outbreak forcing most people to either shelter in place or severely limit their outside activities, people everywhere are online more than ever. As a result, website accessibility lawsuits under the Americans with Disabilities Act are expected to sharply increase. Title III of the ADA requires places of public accommodation with websites (including retail businesses) to ensure that their websites are accessible to everyone, including visually impaired individuals using screen-reading software. Employees and customers are increasingly turning online for everything from ordering a pizza to completing training, attending meetings and conferences, and applying for jobs.
When it comes to shopping, online retailers should be aware that if their websites have barriers to accessibility, it may be only a matter of time before they receive a demand, or get sued, from a disabled customer who cannot use their website. Customers who were previously willing to ignore accessibility issues because they could just visit a physical retail location may no longer have that option due to shut-downs, stay-at-home orders, or simply new customer preferences for contactless purchasing options.
Places of public accommodation that have a customer or public-facing website should ensure their websites are free of barriers to accessibility and compliant with commonly accepted standards of accessibility, such as WCAG 2.0 or 2.1, and should seek legal counsel for assistance with accessibility policies if they receive a demand letter or are sued.
Meanwhile, employers who quickly roll out new technology to allow teleworking and video conferencing options for employees during the pandemic should take a moment to ensure that their technology is accessible. For example, some videoconferencing tools are compatible with screen-reading software for low vision users, while others are not. Addressing accessibility during the technology procurement phase, rather than attempting to deal with employee access issues later, is often advisable.
Employers should also be aware that employees who successfully telework during the pandemic may not accept an employer’s later excuse that telework is not a reasonable accommodation for an employee with a disability. Employers should continue to engage in the interactive process under the ADA when faced with an employee’s accommodation request both during and after the pandemic, and to work with counsel to ensure requests from disabled employees are handled appropriately.
Lawsuit filed by blind student accuses Duke University of discrimination
A lawsuit filed in federal court Thursday accuses Duke University of discriminating against blind students and alumni by failing to ensure they can access everything from application documents to course materials.
The National Federation of the Blind said in a press release that Mary Fernandez, a blind student who began the Duke Daytime MBA program at the Fuqua School of Business two years ago, encountered multiple instances in which she couldn’t access education materials.
The release said Fernandez uses Job Access with Speech — a program that offers text-to-speech and a refreshable Braille display of website pages — hard-copy Braille and tactile graphics to do schoolwork.
Mask Policies Put Businesses Between A Rock And A Hard Place
Several weeks ago, we blogged about mask objectors presenting businesses with documents bearing the U.S. Department of Justice seal stating that they are not required to wear masks because of their disability. Last week, the DOJ issued a statement that “[t]he Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal. These postings were not issued by the Department and are not endorsed by the Department.” This statement makes clear that the DOJ has not taken a position on whether businesses can lawfully deny entry to people who refuse to wear masks because of a claimed disability, but provides no guidance to business presented with this thorny issue.
To further complicate matters, jurisdictions such as New York City, Virginia, and Pennsylvania that have issued executive orders mandating the wearing of masks in public all differ slightly on how businesses should respond to people who cannot wear masks because of a disability or medical condition.
Five ways social distancing signage is not accessible – and how to fix them
Signage during our current age of social distancing is critical in informing us when to wear a mask, how close to convene, and where to go. Many signs, however, are not very good at effectively communicating their message to their audience - especially if that audience happens to have a disability.
Texas Medical Center Immune From Nurse’s Disability Bias Suit
A nurse can’t sue the University of Texas Southwestern Medical Center for employment-based disability discrimination because it is an arm of the state and has sovereign immunity from such suits under the 11th Amendment to the U.S. Constitution, the Fifth Circuit ruled Tuesday.