Employer's Corner: Disability discrimination making the news
Macon Telegraph (blog)
A review of the Equal Employment Opportunity Commission’s website reveals that since Oct. 10 at least eight headlines on the commission’s newsroom page have been made regarding disability discrimination. These range from articles on lawsuits to live twitter chats about disabilities in the federal sector.
On Oct. 15 the commission issued a news release titled “EEOC chair Yang calls for renewed effort to hire people with disabilities.” The news release stated the following: “Since (the Equal Employment Opportunity Commission) began enforcing the (Americans with Disabilities Act) in July 1992, the number of charges alleging disability discrimination has grown from just over 15,000 in fiscal year 1993 to nearly 26,000 in FY 2013. The (commission) has obtained millions of dollars in monetary benefits through the resolution of these charges during the investigatory process and conciliation. In FY 2013, the (commission) obtained $109.2 million for victims of disability discrimination.” For employers this means there is a lot of money at stake if they aren’t meeting their obligations under the Americans with Disabilities Act, known as the ADA.
Telling epileptic she was “burden” raises questions regarding interactive process (CCH Netnews)
Noting an epileptic massage therapist’s testimony that when she asked for an accommodation, her manager told her Marriott had done “enough,” she had “exhausted her ADA,” and she was a “burden on the Spa,” a federal magistrate judge in Arizona found a fact dispute existed as to whether Marriott engaged in good faith in the interactive process. Further observing that the identified accommodations were not inherently unreasonable, the court denied the hotel’s motion for summary judgment on her reasonable accommodation claims as well as on her claim for punitive damages. However, it granted summary judgment to Marriott on her claim that it discriminated against her by disciplining her for her disability (Moore v Marriott International Inc, DAriz, October 31, 2014, Bade, B).
Transgender clerk advances sex, disability claims against hospital (CCH Netnews)
A transgender inventory clerk who was terminated after exhausting medical leave provided evidence that despite many years on the job and a high score on skills, she was rejected for open positions based largely on a low score for “presentation;” that interviewers remarked on her velvet jacket and pony tail; and that a manager admitted that people were uncomfortable around a male presenting as a female. This was enough to avoid summary judgment on her sex discrimination claims under Title VII and state law, determined a federal district court in Michigan. The court also denied summary judgment on her retaliation claim, finding questions on whether HR officials knew of her EEOC charge at the time a separate offer of employment was withdrawn due to a failed drug screen (which the hospital did not let the employee explain was due to lawfully obtained Tylenol with codeine). Her ADA failure to accommodate claim also advanced (Hughes v William Beaumont Hospital, EDMich, October 31, 2014, Drain, G).
Employer need not bump worker to retain disabled employee under ADA (CCH Netnews)
The ADA did not require an employer to bump a regular employee to another job in order to retain an employee with lifting restrictions whose job had been eliminated in a companywide RIF, a federal district court in Ohio ruled, granting summary judgment on his failure-to-accommodate claim. The employee’s discrimination claim also failed because there was no evidence that the sole decisionmaker who eliminated his job knew of his back condition or restrictions, nor evidence that the RIF was carried out in a discriminatory manner (Arthur v American Showa, Inc, SDOhio, November 4, 2014, Beckwith, S).
Drive-by Lawsuits: How to make sure you're ADA compliant
Wink News
We first told you about Howard Cohan Monday night.
The Palm Beach County man filed 516 compliance lawsuits, across the State of Florida in the last year, accusing those businesses of violating the Americans with Disabilities Act.
But many of the business owners tell the court, they were never given the chance to fix problems, before being slapped with a lawsuit costing them thousands of dollars in lawyer bills.
Another Shakedown ADA Lawsuit Against a California Business Shows the Need for Reform
Fox and Hounds Daily
Just ask small businessman Jerry Brannon in Stockton. He recently got sued by Scott Johnson for $38,000 for non-compliance with the Americans With Disability Act. However, instead of settling, Mr. Brannon has decided to fight. He plans to spend up to $50,000 fighting this lawsuit.
Additional Leave May Be Required Under ADA Even if Maximum Leave Is Exhausted
JD Supra (press release)
In Casteel v. Charter Communications, Inc., No. C13-5520 RJB (W.D. Wash. Oct. 23, 2014), a federal judge in Western Washington denied an employer’s motion for summary judgment on a failure-to-accommodate claim under the Americans with Disabilities Act despite the undisputed fact that the employee has been unable to work since July 2009.
Chicago anchor sues Telemundo over firing
Robert Feder (blog)
Edna Schmidt, who was a top news anchor at two Spanish-language stations in Chicago, is suing one of them for firing her when she appeared drunk on the air.
A lawsuit filed in federal court last week claims Telemundo Station Group’s WSNS-Channel 44 and parent company NBC Universal violated the Americans with Disabilities Act by failing to provide Schmidt “reasonable accommodation” for her alcoholism.
After two months on the job, Schmidt was suspended as co-anchor of “Noticiero Telemundo Chicago” when she showed up intoxicated on the 10 p.m. newscast September 30, 2013. Within weeks, her suspension turned into termination from her $200,000-a-year position. Management at the time said only that Schmidt was no longer with the station, adding: “We wish her the best in her future endeavors.”
Families Dealt Setback In ADA Suit Against Disney
Disability Scoop
A federal lawsuit challenging broad changes to Disney’s theme park access policy for people with disabilities has hit a roadblock.
Earlier this year, 14 families of those with developmental disabilities sued Disney alleging that modifications to its access policy constituted violations of the Americans with Disabilities Act. Another 30 families subsequently sought to join the complaint.
Now, however, a U.S. district judge has determined that the families cannot move forward as a group given that the circumstances of their claims vary widely.
“The developmentally disabled plaintiffs face differing cognitive impairments — ADHD, autism, Down syndrome, etc. — and their symptoms manifest in different ways and in response to different stimuli,” wrote Judge Anne C. Conway in an order late last month. “Some of the families appear to own Disney annual passes, and encounter (Disney’s Disability Access Service) frequently, while others claim to have visited a Disney park on only one occasion. The common law allegations are similarly diverse: some families bought one-time-use tickets, sustaining economic damages of only a few hundred dollars, while other families own Disney timeshares or annual passes or spent thousands of dollars on a Disney vacation. Some plaintiffs visited Disneyland, in California, while most visited Disney World, in Orlando.”
Going forward, Conway said that each family can file suit individually.
Is Obesity Considered a “Disability” Under the ADA?
Law.com
The EEOC’s position has started to impact the court system as well. Recently, a Missouri federal judge ruled in April 2014 that a former employee of a car dealership who has accused his employer of firing him for his weight has sufficiently supported his claim that he is disabled within the meaning of the ADA.
Up until now, the most common examples of disabilities under the ADA were back/spinal Injury, psychiatric/mental Impairment, neurological Impairments, heart Impairments and hearing Impairments. 42 U.S.C. §12211.
Now it appears that obesity may be covered under the protections of the ADA. The question remains whether the ADA will start to include other illnesses that were long excluded from the protections of the ADA, such as: pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; and psychoactive substance use disorders resulting from current illegal use of drugs. 42 U.S.C. §12211.