Tender Care parent company settles ADA lawsuit
The parent company of Tender Care Learning Centers has reached a settlement in a lawsuit alleging noncompliance with the Americans with Disabilities Act of 1990.
John H. Durham, United States Attorney for the District of Connecticut, announced Monday that the U.S. Attorney’s Office has reached the agreement with Bradford Child Care Services, Inc., which owns Tender Care.
Tender Care provides child care services at more than 20 locations in Connecticut and western Pennsylvania, including one at 2002 Wilmington Road in New Castle.
The settlement agreement addresses an ADA complaint filed by the parents of a child with epilepsy alleging that Tender Care established a policy to prevent staff from administering prescribed emergency rescue medication.
Under the terms of the settlement agreement, Tender Care will implement new nondiscriminatory policies, practices and procedures regarding the administration of medication for children with disabilities who wish to attend their day care centers, camp, before care program, after care program or any other educational programs owned or operated by Tender Care in the United States.
Tender Care also will train its managers, teachers and other staff on compliance with Title III of the ADA. Additionally, Tender Care will evaluate each request for reasonable modifications on an individualized basis, relying on objective evidence and current medical standards and will adopt, maintain and enforce an Emergency Anti-Seizure Medication Administration (EASMA) Policy and Procedure. The revised materials for parents of children with disabilities will be posted in a general location at the center and will post to its website the nondiscrimination policy approved by the U.S. Attorney’s Office.
Tender Care also has agreed to pay a total of $20,000 in compensatory damages to certain individuals identified during the government’s investigation of this matter.
Under federal law, private entities that own or operate places of “public accommodation,” including learning centers and other places of education and recreation, are prohibited from discriminating on the basis of disability.
Durham noted that the counsel and management of Tender Care were cooperative with the U.S. Attorney’s Office and are committed to addressing the issues raised by the ADA investigation without litigation.
Powerlink Pays $25,000 to Settle EEOC Disability Discrimination Lawsuit
Maintenance Company Denied Deaf Employee a Reasonable Accommodation, Federal Agency Charged
DETROIT — Powerlink Facilities Management Services, a Michigan-based management and maintenance services company, will pay $25,000 and provide other relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
According to the EEOC’s lawsuit, Powerlink violated federal law by failing to provide a reasonable accommodation to a deaf employee. The company uses training videos during its employee orientation. Instead of providing the employee with an accommodation to participate in the orientation, Powerlink claimed she could not complete the process because its videos did not have closed-captioning for the hearing-impaired. The employee was unable to complete the orientation and start work for about two months.
Such alleged conduct violates the Americans with Disabilities Act (ADA). After first attempting to reach a pre-litigation settlement through its conciliation process, the EEOC sued Powerlink in the Eastern District Court of Michigan (EEOC v. Powerlink Facilities Management Services, LLC, Case No. 2:19-cv-12055).
In addition to the monetary relief, the two-and-a-half-year consent decree settling the suit provides for injunctive relief, training on the ADA, and reporting to the EEOC.
“Failing to provide deaf applicants or employees a reasonable accommodation violates the ADA,” explained Nedra Campbell, trial attorney for the EEOC. “Powerlink should be commended for agreeing to this consent decree and taking steps to resolve this case prior to trial.”
According to its website, Powerlink Facilities Management Services was started in 2003. The company has hundreds of employees working in the United States and Canada.
The EEOC’s Detroit Field Office is part of the Indianapolis District Office, which oversees Michigan, Indiana, Kentucky and parts of Ohio.
The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.
9th Cir.: Teacher received warning because she fell asleep in class — not because of her ADA claim
Dive Brief:
- Nevada's Clark County School District had legitimate, non-discriminatory reasons for taking adverse employment actions against a school teacher who fell asleep in class, the 9th U.S. Circuit Court of Appeals held, declining to revive the employee's disability discrimination suit (Annenberg v. Clark County School District, No. 2:17-cv-03090 (9th Cir., June 19, 2020)).
- The teacher had sued the district, alleging, among other things, that she was given a warning and a sub-par performance review in retaliation for an earlier disability discrimination complaint. A lower court granted summary judgment for the employer, finding that these didn't rise to the level of actionable "adverse employment actions."
- The appeals court affirmed summary judgment, but on other grounds. The review was an adverse employment action, it said, because it even thought it didn't necessarily alter a term or condition of employment, it would deter a reasonable employee from engaging in the protected activity. The employer, however, offered legitimate, non-discriminatory reasons for its actions: it submitted evidence that the employee had fallen asleep during class and exhibited several other performance deficiencies.
Dive Insight:
When workers complain about discrimination or harassment or participate in an internal investigation into alleged misconduct, they are engaging in protected activity. And most of the nation's employment laws — including Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the Americans with Disabilities Act and the Occupational Safety and Health Act — forbid retaliation against workers who engage in such activities.
In spite of that prohibition, retaliation complaints are a common occurrence, according to the U.S. Equal Employment Opportunity Commission.
To avoid just allegations, employers can train managers on the laws' requirements and on documentation best practices. For example, once an employer knows or should have known that a worker engaged in protected activity, it's important that "retaliation red flags" such as increased supervision, highlighting alleged performance issues or increased work standards or expectations be avoided, experts previously told HR Dive.
Employers should also know that workers can prevail on a retaliation claim where discrimination has not been proven. Last year the 6th Circuit let stand a jury's finding that an African American Cleveland police officer was subjected to retaliation but not discrimination. Similarly, a female African-American plaintiff didn't win on her charges of sexual harassment and race discrimination, but an appeals court said her retaliation claim could move forward. The court said that while her allegations were not legally actionable because they were petty slights, her claim that she was forced to work through her lunch hour after she complained of sexual harassment was enough to sustain her retaliation claim.
However, protected activity doesn't insulate workers from legitimate discipline. But because timing alone can establish a prima facie case of retaliation, thorough documentation is key in avoiding and defending retaliation claims, experts say.
Why insurers should lead in digital accessibility for people with disabilities
Insurance customers want to feel that they’re in control and getting the best deals possible. Decisions about policies are often highly emotional— with customers looking to protect their life, health, family and valuables. Yet they are also complex, with policy language and coverage often difficult for the general public to decipher.
In order to be sensitive to these user needs, many insurance companies prioritize user experience when designing their websites. The best insurance websites are generally those that are easy to use, provide clear choices and present information in a simple, reassuring, and humanizing manner.
Many insurance companies are doing a great job at this, but there’s one critical user experience dimension to which they may not be paying sufficient attention: digital accessibility, or, making sure their websites, mobile sites and apps are usable to people with disabilities relying on assistive technologies.
ADA Website Litigation Update - Serial Plaintiff Rebuffed
In a case indicating that courts may be weary of serial plaintiffs filing multiple cookie-cutter lawsuits, a United States District Judge in the Northern District of New York has ordered a plaintiff to show that she has standing to bring ADA hotel website accessibility lawsuits to federal court.
The disabled plaintiff, who resides in Florida, has filed 29 nearly identical ADA website cases in the Northern District of New York seeking injunctive relief, damages, and attorneys’ fees. In this specific case, Deborah Laufer v. 1110 Western Albany LLC and Ryan LLC, the plaintiff sought an unopposed default judgement when the defendant failed to respond to the complaint.
The Court, however, determined the plaintiff failed to establish Article III standing to bring the lawsuit and refused to enter the default judgment.
Achieving Article III standing in federal court
To have standing to seek injunctive relief in federal court, plaintiffs must establish they have sustained (or are in immediate danger of sustaining) a direct injury as the result of the alleged wrongdoing, and that the injury is concrete and particularized, not hypothetical or speculative.
In this case, the plaintiff claimed injury due to the alleged lack of information on a hotel’s website about accommodations for disabled guests, as is required under the ADA’s 28 C.F.R. Section 36.302(e).
But Hon. Brenda K. Sannes, of the United States District Court of the Northern District of New York states in an Order dated May 8, 2020:
“There appears to be a serious question as to whether Plaintiff has established standing, in this, or any of her other cases, and thus whether the Court has subject matter jurisdiction over these actions. See, e.g. Laufer v. Laxmi & Sons LLC, 1:19-cv-01501 (BKS/L) (Dkt. No. 15, at 7. May 6, 2020). (“There are no facts in the Complaint or Plaintiff’s affidavit indicating that she has ever traveled to Rensselaer, New York, or anywhere in New York, or that she has any reason to travel anywhere in New York or any reason to seek lodging anywhere in New York.”)
The Judge has ordered the Plaintiff to file briefs in 29 actions, addressing whether she has standing, and to specifically reference the legal issues and case law discussed in the Memorandum-Decision and Order the Court entered in Laufer v. Laxmi & Sons, LLC.
What does this mean for hotels?
The 29 lawsuits filed by the plaintiff in the Northern District of New York, are among the more than 235 nearly identical lawsuits she has filed nationally.
Laufer, like many serial ADA plaintiffs, claims she searches the internet largely as a “tester”, looking for hotel websites and the websites of third-party booking portals to see if they technically comply with 28 C.F.R. Section 36.302(e), which outlines information that hotels are required to provide on their websites for disabled guests. Those requirements are covered in our blog, ADA Requires Hotels to Describe Accessibility Features on Website.
While there are statutes in Florida and elsewhere, that allow tester standing, courts in some jurisdictions are taking the position that the plaintiff must nevertheless suffer an injury to have standing.
As we reported earlier, the United States Court of Appeals for both the Fourth Circuit and the Seventh District have dismissed website accessibility lawsuits in 2019 for lack of Article III standing.
In addition to addressing issues of constitutional standing, courts are also continuing to interpret 28 C.F.R. Section 36.302(e). Hotels are advised to make good faith efforts to follow the requirements.
This serial plaintiff found no lucky charm or decoder ring in the Northern District of New York.
Can AI Save Web Accessibility >From An Impending ‘Market Failure’?
The web accessibility market has undergone a tremendous amount of upheaval over the past five years. Most recently, the societal aftershocks of the coronavirus pandemic have reminded everyone of the importance of universal access to digital services.
Since 2015, there has also been an explosion of litigation, including class-action lawsuits filed under the ADA (Americans with Disabilities Act) against organizations that have failed to make their websites accessible to disabled people.
In 2018, the number of web accessibility lawsuits in the U.S. increased by 177% from the previous year to 2,258. Up to 20% of the population have a disability, be it visual, auditory, or motor, requiring a computer access intervention.
ADA's 'accommodation of last resort' remains a thorn in employers' sides
In this installment of "Other Duties as Assigned," HR Dive discusses why employers are still making difficult judgment calls on reassignment..
In "Other Duties as Assigned," HR Dive's lead editor, Kate Tornone, weighs in on employment trends, compliance best practices and, of course, the situations that require you to go above and beyond your normal duties. Today: "the accommodation of last resort."
Since the Americans with Disabilities Act (ADA) took effect decades ago, employers have struggled with various aspects of implementation.
To resolve those issues, the U.S. Supreme Court has weighed in several times, and Congress drastically overhauled some of the law’s primary provisions in 2008. But some questions remain unanswered, even as the law approaches its 30th anniversary. Among them is whether an individual with a disability who can no longer carry out a job's essential functions is entitled to a transfer to a vacant position — even if there are other, more qualified candidates.
The statute itself mentions reassignment as a potential accommodation but doesn’t say whether the transfer must be noncompetitive. Regulations from the U.S. Equal Employment Opportunity Commision (EEOC), which enforces the ADA, go no further.
The agency has, in a guidance document, taken the position that reassignment must be noncompetitive. "Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended," according to the guidance. Notably, however, courts place less weight on guidances than regulations.
Naturally, federal appeals courts are split on the issue. Some agree with the EEOC, opining that because anyone — employee or not — can submit an application for any opening at any time, merely continuing to allow that would be, as one court put it, "no accommodation at all." Others have concluded that noncompetitive reassignment would amount to "affirmative action with a vengeance" — something the ADA doesn’t require.
And the Supreme Court declined to take up the question on multiple occasions before finally agreeing to remedy the split in 2008, only to have the case settle before it had the chance.
For now, the answer to the reassignment question remains unknown. As with many of the decisions you make, it may be a matter of weighing risk. Keep in mind that the law doesn’t require employers to grant an employee’s preferred accommodation, only an effective one; EEOC itself calls reassignment "the reasonable accommodation of last resort." And if you find yourself headed down that path, you can read EEOC's guidance, check on applicable circuit precedent and make an educated decision. It also may be worth noting during your hiring process that the ADA doesn’t protect workers without disabilities from discrimination based on their non-disabled status.
For now, employment attorneys say, employers are left to consider those factors and then consult with counsel.
Woman alleges disability bias in 47 lawsuits against WNY hotels
Unlike other ADA lawsuits targeting physical violations, such as inaccessible parking spaces or sidewalks, Laufer's lawsuits center around the defendants' websites.
In each case, she accuses the business, usually a hotel, of operating a booking site that is inaccessible to the disabled and therefore discriminatory.
Her complaints, unlike many civil lawsuits, also come unannounced with no previous notice of her intent to sue.