Settlement Agreement:
- Burke Professional Center Condominium Association
- Connecticut State Department on Aging
- Webster Bank, N.A.
- Omni Hotels Management Corporation
Statement of Interest: Sachem Central School District | PDF
Letter of Findings New York City Department of Education | PDF
FMLA leave may be ADA accommodation
Business Management Daily
Here’s something to remember when an employee claims she has a disability that interferes with her ability to work overtime or even a full day. You can offer intermittent FMLA leave as a reasonable accommodation rather than restructuring the job or transferring the employee to another open position.
Remember, the employer, not the employee, gets to pick the ADA accommodation.
As long as it is a reasonable accommodation and is designed to let the employee perform his job’s essential functions, you have met your ADA obligations.
Recent case: Vincent worked as a debt collector, calling individuals who owed money and trying to get them to make payments on their debts. He worked eight or nine hours per day and could work more if he chose.
When Vincent was involved in an auto accident, he received time off under the FMLA to heal.
He came back to work and soon reinjured his back while helping his son move. Doctors forbade Vincent from working overtime after a supervisor asked him to make up missed time with several 12-hour shifts. He then was offered intermittent leave to adjust his schedule for the days he claimed to be in pain.
Eventually, Vincent was fired for poor performance.
That’s when he sued, alleging that he had been terminated because he was disabled and had been denied a reasonable accommodation of a transfer to a less stressful position.
The court tossed out Vincent’s lawsuit.
It reasoned that by letting Vincent take intermittent FMLA leave, the employer had, in fact, accommodated his back pain, including his need to avoid working overtime.
It didn’t need to transfer him to another job or change his schedule permanently. (Asher v. United Recovery Systems, No. H14-0661, SD TX, 2015)
Employee not 'qualified individual' after extended absence and certification of total disability
Finding it indisputable that a medical examiner was not a “qualified individual” after an absence of over three months and a doctor's certification that she was totally disabled, the D.C. Circuit affirmed summary judgment in favor of her employer in a lawsuit under the ADA and the D.C. Human Rights Act alleging failure to accommodate. The court also affirmed judgment for the employer on her retaliation claim, finding it provided a legitimate nondiscriminatory reason for terminating her employment and that she would be unable to prove the “actual reason” was retaliation (Minter v District of Columbia, DCCir, December 29, 2015, Garland, M.)
No monetary loss, no actionable FMLA claim
A registered nurse at a group nursing home facility was unable to revive her suit alleging that her employer interfered with her FMLA rights, discriminated against her for taking FMLA-protected leave, or discharged her in violation of public policy. Affirming summary judgment in the employer’s favor, the Eighth Circuit concluded, for one, that the employee had no actionable claim of discrimination based on a month-long paid suspension because she suffered no monetary loss, and the FMLA limits damages to actual monetary loss. (Hasenwinkel v Mosaic, 8thCir, December 29, 2015, Colloton, S.)
Jury rejects deaf worker's bias claim against Placer nonprofit
Sacramento Bee
A jury in Sacramento federal court has decided that a Placer County nonprofit that provides independent living services to people with developmental disabilities did not discriminate against a deaf employee.
Can Your Company's Website Lead To A Lawsuit?
JD Supra
If your business is a place of public accommodation, you are probably already familiar with the rules from Title III of the Americans with Disabilities Act (ADA) that require you to make services and physical locations accessible to individuals with disabilities. Places of public accommodation include restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers, but not private clubs or religious organizations.
However, are you aware that some courts have recently concluded that a company’s website, standing alone, is also considered a public accommodation? Which means that, depending on the jurisdictions in which your company does business, you may need to ensure Title III compliance for your website or run the risk of a legal violation.
When alcohol abuse enters the workplace
Idaho Business Review
Football powerhouse USC fired its head football coach, Steve Sarkisian, in October after it was widely reported that he had been under the influence of alcohol during several team events. His termination provides a lesson for any employer wondering how it should handle the sometimes-touchy situation involving possible alcohol abuse by an employee.
Kent State Loses Suit, Agrees To Allow Emotional Support Dogs
North Country Gazette
Kent State University (KSU) has agreed to pay $145,000 to settle a civil rights lawsuit alleging that the university had maintained a policy of not allowing students with psychological disabilities to keep emotional support animals in university-operated student housing.
Disabled woman accuses New Orleans Center of denying her ADA rights
The Louisiana Record
An Orleans Parish woman says her employer, The New Orleans Center for Creative Arts Institute, discriminated against her by failing to accommodate her disability.
Julie Winn filed a lawsuit Dec. 30 in U.S. District Court for the Eastern District of Louisiana against The New Orleans Center for Creative Arts Institute, alleging violations of the Americans with Disabilities Act.
According to the complaint, Winn started with the Center as a costume designer and instructor in 2001, receiving exemplary evaluations for her first seven years. In 2008, Winn says she was diagnosed with depression, managing it with therapy and medication for the next five years.
However, the suit says that in 2013, amid concerns about her performance, the center’s management reassigned her to a new position with fewer hours and lower wages and benefits. Winn claims that after the center rejected her doctor’s suggestions to accommodate her disability without cutting her hours, the center terminated her by eliminating her position.
Winn seeks a jury trial and damages and is represented by attorney G. Karl Bernard of G. Karl Bernard & Associates LLC in New Orleans.
U.S. District Court for the Eastern District of Louisiana Case number 2:15-cv-07168
Pregnancy-Related Accommodation Bill To Be Introduced in Colorado Legislature
Lexology
Following the national trend, a bill to be introduced during Colorado’s next legislative session intends to expand protection for pregnancy-related leave. Specifically, the draft bill would require employers to provide reasonable accommodations to applicants and employees for conditions related to pregnancy and childbirth. If passed, the bill would mean that employers must engage in an interactive process to assess potential reasonable accommodations, provide notice of employee rights, and refrain from retaliating against employees and applicants that request or use a pregnancy-related accommodation.
With the 2016 Colorado legislative session set to convene on January 13th, here are the highlights of the draft bill.
PF Chang's gluten-free disability lawsuit not over
Examiner.com
Back in December 2014, a lawsuit was filed against P.F. Chang’s for charging more for its gluten-free options. Anna Marie Phillips filed the suit in Santa Clara County superior court for discrimination and violation of the Americans with disabilities act.
The suit claims that P.F. Chang’s forces people with celiac disease to pay higher prices for gluten-free versions of their menu selections. This lawsuit is seeking class action status. According to the suit, over the past four years more than 3,000 people in over 39 states have been affected. P.F. Chang’s adds a dollar charge to gluten-free items even if they are naturally gluten-free.
Does P.F. Chang's Asian Bistro discriminate against people with celiac disease by charging more for gluten-free dishes than for their non-gluten-free counterparts? A ruling by a federal judge means that the lawsuit against P.F. Chang's over its gluten-free menu can't be dismissed just yet.
Disabled man accuses Subway, Original Italian Pie of preventing his access to the restaurants
The Louisiana Record
A Jefferson Parish man is suing restaurant chains Subway and Original Italian Pie and its franchisees, claiming they restrict access to handicapped visitors.
Lawrence Fultz filed a lawsuit Dec. 31 in U.S. District Court for the Eastern District of Louisiana against Doctor’s Associates Inc., Retif/Westbank Exp LLC, RS7947 Inc., Subway Real Estate Corp. and The Original Italian Pie Franchising Co. LLC, alleging violations of the Americans with Disabilities Act.
According to the complaint, Subway settled in 2007 with the federal government over its alleged violations of the ADA. However, the suit says the Subway and Original Italian Pie restaurants in Jefferson Parish have no accessible-designated seating, bathroom fixtures that are too high for wheelchair users, and other features of the parking lot and store interior limiting access and usability by those who are handicapped.
Fultz seeks an order directing the defendants to comply with the ADA, as well as litigation costs. He is represented by attorneys Andrew D. Bizer, Garret S. DeReus and Amanda K. Klevorn of The Bizer Law Firm in New Orleans.
U.S. District Court for the Eastern District of Louisiana Case number 2:15-CV-07179
Vet kicked-out of Sevierville restaurant over service dog
WATE 6 On Your Side
An Army veteran said he plans to file a lawsuit after he says he was asked by a manager at a Sevierville bar and grill to leave because of his service dog.
Kevin Stone said he went to grab a burger at Screwball’s Bar and Grill. He left the restaurant hungry after he says a bartender told him he could not bring his service dog “Mambo” inside.
According to a police report filed by Stone with the Sevier County Sheriff’s Office, owner Jack Disney said the health department does not allow dogs in his restaurant, because food is served and it could cause him to lose his license. “It was a jaw dropper. It really hurt,” said Stone.
Hillary Clinton announces autism initiative, bulks up health care platform
CBS News
After gleefully thanking her Iowa precinct captains here at a town hall Tuesday, Hillary Clinton bulked up her steadfast commitment to improving health care issues, rolling out her new autism initiative.
Don't Ignore Reasonable Accommodations in the Application Process
Workforce Management (blog)
Eliminating barriers in recruitment and hiring is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan. Large national employers provide the EEOC with a soapbox to broadcast this agenda. Thus, a lawsuit filed by the agency against McDonald’s Corp. for its alleged refusal to interview a deaf job applicant is a perfect ADA-storm.
According to the complaint, Ricky Washington, who is deaf, applied online for a job at a McDonald’s restaurant. He indicated on his application that he attended a school for the deaf. When the restaurant manager learned Washington needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, continuing to interview and hire new workers.
Employers cannot forget or ignore that their obligations under the ADA to provide reasonable accommodations does not just cover employees, but also extends to job applicants. From the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA:
An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.
Per EEOC St. Louis District Director James R. Neely, Jr., “Removing obstacles in the hiring process for people with disabilities is a national priority for EEOC. All employers, but especially large ones, should join with the agency to make sure everyone has equal access to the employment process.” Adds EEOC Regional Attorney Andrea G. Baran, “Providing equal employment opportunities to all job applicants—including those with disabilities—is not just the law, it is good for our economy and our workplaces.” Solid words for employers of all sizes to heed.
Straight Talk From An Employer About Mental Disability
The Jewish Week (blog)
How can you accommodate what you don’t see? Just because a disability isn’t always visual doesn’t mean it should be ignored. In fact, in our experience, it’s a time for an employer, whether large or small, to shine. We frequently hear that hiring people with disabilities makes good business sense. It’s common to think of employees with disabilities as individuals who are in a wheelchair or blind. But what happens when the disability isn’t visible?
Hawaii Movie Theaters Now Accommodating the Hearing and Visually Impaired
MauiTime Weekly (blog)
In other new law news, effective Jan. 1, “anyone that operates a motion picture theater in more than two locations in the state” now has to provide “open captioning during at least two showings per week of each motion picture that is produced with open movie captioning,” according to a Dec. 30, 2015 press release from the Hawaii House of Representatives. The law also requires theaters “to provide an audio description of any motion picture that is produced and offered with audio description.”
This is the result of HB 1272, passed last year and signed into law by Governor David Ige. A wide variety of groups and organizations dedicated to assisting disabled people supported the bill. And why not?
Schools Cited For Widespread ADA Violations
Disability Scoop
Federal officials are demanding action after an investigation revealed that the vast majority of elementary schools in the nation’s largest district are inaccessible to students with disabilities.
A two-year inquiry by the office of U.S. Attorney Preet Bharara found that 83 percent of elementary schools in New York City are not “fully accessible.” Moreover, in swaths of the city that serve more than 50,000 elementary school students, there is not a single school that meets accessibility requirements.