EEOC and Chicago-Area Marshmallow Maker Reach Accord in Disability Suit
In its complaint, the EEOC alleged that the company had capped the duration of leaves of absence at its Elk Grove Village and Bensenville, Ill., manufacturing facilities, without making appropriate exceptions for people with disabilities. The Americans with Disabilities Act (ADA) requires that employers provide reasonable accommodations to individuals with disabilities. This can include making exceptions to leave policies to allow an individual with a disability to successfully return to work and perform his or her job. More information about leave as a reasonable accommodation is available in question-and-answer format on the EEOC's website.
Randall Ford to Pay $128,750 to Settle EEOC Disability Discrimination Suit
The EEOC's lawsuit challenged Randall Ford's treatment of a used-car manager when the company refused to accommodate his disability following surgery on his spine. Among other things, the manager had asked permission to make greater use of a cart that he and other employees already used from time to time. Instead of making such accommodations, Randall Ford fired the manager a few days later.
Nassar a year later: Pennsylvania ADA retaliation case considers impact of Supreme Court’s decision
Lexology
Readers will recall a flurry of U.S. Supreme Court decisions as the Court’s term ended in mid-2013. One of these decisions was University of Texas Southwestern Medical Center v. Nassar – this week’s letter of the law is N for Nassar. In Nassar, the Court held that Title VII retaliation claims should be decided under a “but for” rather than “motivating factor” causation test. This is one of those decisions where almost anybody but an employment lawyer thinks, “That’s nice – what’s thatmean?” Generally it does not mean much for employers in their day to day management of employees, but it should mean that employers will win a few more cases in court. As with an high court decision, the real impact is not known until lower courts have interpreted it for a few years.
Last week’s federal court decision in Berkowitz v Oppenheimer Precision Products, Inc. is one recent look at this still-new case. Berkowitz is not a Title VII case, but rather an ADA and FMLA case. The employee suffered from various health issues, and it seemed undisputed that he was disabled under the ADA. He was fired several days after returning from a medical leave and informing management that more leave might be needed. The stated reasons for termination was inappropriate workplace behavior, including verbal abuse of others. Berkowitz countered that his employer had tolerated such behavior years and terminated him only in close proximity to his use of leave and anticipation of further leave. The Eastern District of Pennsylvania denied the employer’s motion for summary judgment and said the case should proceed to trial.
Berkowitz highlights two points about what Nassar means to employers:
- As noted above, Nassar is a Title VII and does not on its face apply to ADA claims. Often decisions under one employment law are extended to other laws, and the employer argued that the same is true here and cited court decisions in support of that. It seems likely that Nassar will ultimately be extended to retaliation claims under the ADA, but the court in Berkowitz in effect passed on this issue.
- Instead, the court said that it would deny summary judgment on the retaliation claim under the more pro-employer Nassar“but for” standard anyway. This highlights that pro-employer procedural decisions do not change the general rule that cases involving employee health issues are usually more about the facts – the documentation of performance issues relied upon, being able to explain why might appear to be changes in the employer’s approach as the employee claimed in Berkowitz(successfully, at least at this stage), and the interactions with the employee to demonstrate that the employer properly considered potential obligations under the ADA and FMLA.
Stockton businessman says he'll fight ADA lawsuit
News10.net
Scott Johnson has made legal claims against many business owners in the Sacramento area, claiming he's suffered because his disability won't allow him to fully access their stores and restaurants.
Now Stockton businessman Jerry Brannon said he's fighting back.
"(Johnson has) taken the ADA (Americans With Disabilities Act) laws and made a business out of it and he's extorting money from people. The damage he's done is unbelievable. That's not what ADA is about. It's about helping disabled people," Brannon said.
Johnson has been linked to thousands of lawsuits. He points out where a business is violating the law and requests large amounts of money for the alleged suffering he's endured.
Johnson is seeking $38,000 from Brannon, the owner of Advanced Trailer. That's $4,000 for every visit by Johnson to Advanced Trailer, as well as attorney's fees.
Brannon has hired his own attorney to fight Johnson in court and to try and prove that the lawsuits aren't about fixing disability barriers; instead bringing Johnson profits.
"To go to federal court, to go after him, costs a lot of money. ( I'll spend ) between $30,000-$50,000. I want to help small business," said Brannon, who's hoping other Johnson targets in Stockton will help him cover legal costs.
UPS to Roberts Court: We'll Accommodate Pregnant Workers. Will the Justices Care?
RH Reality Check
International shipping giant UPS for almost a decade has insisted its policy of refusing workplace accommodations for its pregnant employees is not only legal, but sound business policy.
UPS has been so invested in its so-called pregnancy-blind approach to accommodating the temporary health-care needs of its employees that it is defending it all the way to the U.S. Supreme Court in a case the Roberts Court will hear in early December.
So it’s more than a little surprising that UPS announced it would voluntarily abandon its “pregnancy-blind” accommodations policy and would begin next year offering a host of temporary workplace accommodations for its pregnant employers.
Is Smoking A Recognized Disability Under The Fair Housing Act? No.
Mondaq News Alerts
I get this question from time to time: “Do you have a list of recognized disabilities under federal law and/or the Fair Housing Act (FHA).” Unfortunately, the answer is no. There is no complete list of disabilities to review like a checklist. Now, that being said, many disabilities are universally recognized while others are appropriately certified by a medical/mental health care professional. There is, however, one habit or custom that is not recognized as a disability under applicable law: smoking.
While legal under federal law, when it has been raised, the courts have concluded that smoking is not a disability. The cases have noted that a resident who smokes may not invoke the anti-discrimination laws (such as the FHA or Americans with Disabilities Act (ADA)) seeking a policy change to permit them to smoke indoors, because “Congress could not possibly have intended the absurd result of including smoking within the definition of ‘disability,’ which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke.” Back in 2001, a U.S. District Court in Maryland held that even assuming that the ADA fully applied in a specific case, “common sense compels the conclusion that smoking, whether denominated as ‘nicotine addiction’ or not, is not a ‘disability’ within the meaning of the ADA.”
So, what is the point? Because smoking is not a recognized disability, management does not have to permit it to be used to ask for a reasonable accommodation or reasonable modification. Indeed, my experience teaches that requests for reasonable accommodations are routinely made by non-smokers with medical conditions that are related to second hand smoke or smoke allergies. Resident with these types of disabilities may well have legal protections from exposure to smoke under the FHA and management is required to review and then evaluate their reasonable accommodation requests. Does that mean you should treat your residents who smoke as second class citizens? Of course not. Only that smoking cannot be used to require you to grant a reasonable accommodation or reasonable modification request.
Disney Autistic Kids Lawsuit Expands, But Judge Rejects Group Status
Deadline.com
It’s kind of 69 steps forward and 95 steps sideways in the American With Disabilities Act lawsuit against Walt Disney Parks and Resorts. Late last week, a Florida federal judge decided that dozens more families of children with developmental disorders can join the discrimination case first filed in April, but now they must file individually. An amended compliant of August 27 sought to add 69 new plaintiffs to the suit first filed by 26 plaintiffs over allegedly horrific experiences they had at Disney World and Disneyland.
Americans with Disabilities Act grant
Journal Advocate
Have you notice the ADA improvements at the Heritage Center and the Extension Office? If not, you really should make a point of checking out these upgrades for Logan County citizens.
Thanks to Logan County Clerk's Office being required to have two additional Voter Service and Polling Center Locations for the Nov. 4 general election. I applied for a grant from the Secretary of State Office to install ADA automatic opening doors, install a ramp and railing, and install ADA signage and a curb cutout. The grant is awarded based on need for voter accessibility to a voting location. The total amount of the grant is for $30,880.72.
With the help of Logan County Maintenance Department and Logan County Road & Bridge Department and several area contractors, the Extension Office and the Heritage Center have a new look and are more ADA friendly for everyone in the community to enjoy when visiting these locations on a daily basis.
Restaurant floored by Scott Johnson ADA lawsuit reopening in Truckee
Tahoe Daily Tribune
A longtime family restaurant that fell victim to ADA lawsuit-driven financial woes a few years ago is making its return to Truckee this week.