ADA: It's OK to just agree to accommodation
Business Management Daily
When a disabled employee asks for a reasonable accommodation, the employer is supposed to engage in an interactive process to explore the options. But what if you prefer to skip the discussion and simply agree to the employee’s suggested accommodation?
That’s fine. By accepting the requested accommodation and telling the employee he can have it, you have done all you’re required to do.
Recent case: Leon’s job consisted solely of reading and writing emails and occasionally answering the phone. He did no manual labor.
One day, his employer told Leon that he would be terminated at the end of that week. Almost immediately, he sent his boss a request for a reasonable accommodation. He said he was experiencing severe pain in his side, and attached a doctor’s note stating that he would be “temporarily totally disabled” unless his duties were modified. The note said Leon needed a break every 30 minutes to stretch, couldn’t lift more than 15 pounds and could do no repetitive or forceful grasping, gripping, pulling or pushing.
His supervisor replied, “Based on your attached doctor’s note, we can meet your doctor’s recommendations for modified duty for the remainder of the week, effective immediately.”
Leon finished his last week of work and then filed a disability discrimination lawsuit alleging his former employer had refused to engage in the interactive accommodations process.
The court dismissed his lawsuit. By giving Leon exactly what he had requested, the employer met its obligations. No further action was necessary. (Poll v. HP, No. B258873, Court of Appeal of California, 2015)
On Second Thought, That Bum Shoulder Is a Disability
Lexology
A federal appellate court unanimously found that an individual’s difficulty with lifting his right arm above his shoulder, constituted a disability under the ADA Amendments Act of 2008, which amended the Americans with Disabilities Act of 1990 (ADA), Cannon v. Jacobs Field Services North America, Inc., Case No. 15-20127 (5th Cir., 1/13/16).
In this case, a construction firm offered the plaintiff, Michael Cannon, a job as a field engineer. Cannon participated in a pre-employment physical, which revealed a rotator cuff injury. The doctor cleared him for work, but only with accommodations: no driving of company vehicles, no lifting, no pushing or pulling of more than 10 pounds, and no working with his hands above shoulder level. On the same day the company received the doctor’s paperwork, they determined that Cannon was not physically capable of performing the job and then rescinded the offer. The company told Cannon that the reason for the rescission was his inability to climb a ladder – an essential function of the job. Despite Cannon’s multiple attempts to prove otherwise (even sending a video of himself doing so), the company ceased communication. Cannon filed suit. The lower court granted summary judgment to the company, concluding that the injured rotator cuff did not constitute a disability under the ADA.
The appellate court reversed the lower court, finding that the lower court ignored the ADA amendments’ more relaxed standard of “a degree of functional limitation” versus the higher standard of “substantially limits” a major life activity. The appellate court also found that the company’s “belief” that Cannon suffered from a substantial impairment was also enough to satisfy the disability element of the claim. Ultimately, the court concluded that the company “never cited a reason for rescinding Cannon’s offer […] which is divorced from his physical impairment.”
This brought the court to the next question of whether or not, despite Cannon’s impairment, he was still qualified for the field engineer position. The court reasoned that in light of evidence that the candidate could climb a ladder (i.e., the video footage), it was enough to reverse summary judgment and force the case to jury trial. The Court pointed out that had the company conducted a more thorough inquiry after learning about the injury, it would have been able to get to the bottom of the ladder climbing question.
Bottom line: The ADA 2008 amendments made it much easier for a plaintiff to establish a disability. Your defense should focus on the issue of whether or not an individual is qualified for the position, despite any impairment. This requires you to fully engage in the interactive process and build a solid record of evaluation of the candidate’s qualifications before making a decision to rescind an offer.
Michigan Firm to Pay $31K to Settle Discrimination Suit
Insurance Journal
Michigan-based Downriver Community Services will pay $31,000 and provide equitable relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.
According to EEOC’s suit, Downriver refused to extend additional unpaid leave to a peer counselor after surgery for a herniated disc, fired her based on her disability, and then refused to rehire her.
An employer may not deny reasonable accommodations to the known limitations of an employee with a disability unless the employer can demonstrate that an accommodation would impose an undue hardship on the operation of the business. Further, an employer cannot fire or refuse to rehire an employee because the employee has a disability. Any such conduct violates Title I of the Americans with Disabilities Act of 1990 (ADA).
EEOC sued Downriver (EEOC v. Downriver Community Services, Civil Action No. 4:15-cv-13060) in the U.S. District Court for the Eastern District of Michigan, after first attempting to reach a pre-litigation settlement through its conciliation process
In addition to the $31,000 in monetary relief, the three-year consent decree provides for training on the ADA and prohibits Downriver from denying a reasonable accommodation or terminating or refusing to rehire an employee on the basis of disability.
Woman alleges disability discrimination against St. Mary Medical Center
The Pennsylvania Record
Bridget Musse filed a lawsuit Jan. 11 in U.S. District Court for the Eastern District of Pennsylvania against St. Mary Medical Center, alleging violations of the Americans with Disabilities Act, the Pennsylvania Human Relations Act and the Family Medical and Leave Act.
The suit states Musse worked for the defendant as a registered nurse in its medical surgical main unit from October 2004 until her discharge on Nov. 13, 2013. According to the suit, Musse is a qualified individual with multiple diagnosed disabilities, for which her co-workers allegedly made fun of her and regarded her as "mentally unstable.
La Mision restaurant fighting "unfair" disability discrimination lawsuits
NewsWest9.com
The longtime owners of a popular Midland restaurant are facing a series of legal complaints stemming from alleged failure to comply with accessibility guidelines under the Americans with Disabilities Act (ADA).
La Mision, located at 1008 S. Big Spring St., is accused of discriminating against visually impaired customers by failing to provide Braille menus, according to court documents obtained by NewsWest 9.
Woman alleges Bio-Pharm discriminated against her
The Pennsylvania Record
A Croydon woman is suing her former employer, a generic pharmaceutical formulations company, over claims of discrimination and retaliation.
Tina Retzler filed a lawsuit on Jan. 12 in U.S. District Court for the Eastern District of Pennsylvania against Bio-Pharm Inc., alleging violations of the Civil Rights Act, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act, and the Pennsylvania Human Relations Act.
Retzler worked for the defendant as a packer for approximately 12 years. During the last period of her employment with Bio-Pharm, Retzler suffered from various health conditions, including anxiety, a heart valve disorder and hyperlipidemia, limiting some of her daily activities and occasionally requiring intermittent time off from work.
The suit alleges the defendant failed to inform Retzler of her individualized FMLA rights and instead reprimanded her for her absences.
During this time, Retzler also believed she was being discriminated against by the defendant's management, including Ami Shah and Kinnari Shah, because she did not share the same national origin as the majority of her coworkers, who were of Indian descent, according to the suit.
Retzler complained in writing of this treatement, after which she was allegedly subjected to increased hostility and animosity from Bio-Pharm management, eventually resulting in her termination for what she says were pretextual reasons.
Retzler seeks compensation and reimbursement, liquidated and/or punitive damages, attorney fees, and other costs of the suit. She is represented by attorney Ari R. Karpf of Karpf Karpf & Cerutti in Bensalem.
U.S. District Court for the Eastern District of Pennsylvania Case number 2:16-CV-00121-GJP.
Check Printing Company to Pay $75000 to 'Transgender' in Restroom Settlement
Christian News Network
A nationally-recognized check printing company has agreed to pay a man who identifies as a woman $75,000 in a settlement over a discrimination complaint regarding the use of the company restrooms.
Drexel accused of disability discrimination
The Pennsylvania Record
A woman is suing a Philadelphia university and two former co-workers for alleged disability discrimination in violation of the Americans with Disabilities Act.
Debra Checa, a resident of Marlton, New Jersey, filed a lawsuit on Jan. 11 in the U.S. District Court for the Eastern District of Pennsylvania against Drexel University, Kathy Lally and Christina Zervoudakis for violations of the Pennsylvania Human Relations Act, and the Family and Medical Leave Act.
According to the suit, Checa was employed for a year and a half at Drexel's College of Medicine as a program manager. She had carpal tunnel surgery and was on disability leave for approximately three months beginning on June 25, 2014. The suit alleges when she returned to work on Sept. 16, 2014 she was greeted by a hostile work environment with Lally and Zervoudakis allegedly verbally harassing Checa to the point that she announced she was quitting.
In addition to stopping alleged disability discrimination at the school, Checa wants to be compensated and reimbursed for any and all pay and benefits owed. She is also seeking damages and legal costs. Timothy M. Kolman, Wayne A. Ely and W. Charles Sipio of Kolman Ely P.C. in Penndel are representing Checa.
U.S. District Court for the Eastern District of Pennsylvania Case number 216-cv-00108-MAK