Letter of Findings: Nevada Department of Corrections
U.S. Department of Justice Review of the Nevada Department of Corrections’ Compliance with Title II of the Americans with Disabilities Act: Findings of Fact and Conclusions of Law, DJ Nos. 204-46-175, 204-46-176
Leaves of Absence Current Focus of EEOC's New ADA Accommodation Guidance: Love It or Leave It
The National Law Review
It is a rare employer that has not fielded employee requests for time off to address a health concern. The requests can come in many shapes and sizes: weeks or months of leave, a few days of leave, sporadic days off here and there, taking certain hours off each day, rest breaks throughout the day, or any combination thereof. Indeed, many larger employers receive these requests monthly or even weekly; some employ designated staff or even an entire department to help respond appropriately. With the ADA, FMLA, workers’ comp, employer policies, operational concerns, past practices, and other considerations all in play, the rules can be tricky, and solutions not always clear.
Attorney Carney Shegerian Comments on Disability Discrimination Suit Against Lowe's
PR Newswire (press release)
Attorney Carney Shegerian, founder of the Los Angeles-based employment discrimination firm Shegerian & Associates, recently released comments on the EEOC's disability discrimination claims aimed at home improvement giant, Lowe's. The suit alleges Lowe's refused to hire disabled applicants and refused reasonable accommodation for disabled workers. The company has agreed to settle the case for $8.6 million.
JD Supra
On June 7, 2016, in Alice Mendoza v. The Roman Catholic Archbishop of Los Angeles (USCA 9th No. 14-55651 (“Mendoza”), the Ninth Circuit held that under the Americans with Disabilities Act, an employee alleging disability discrimination and disparate treatment claims must show “that a discriminatory animus is the sole reason for the challenged action” or that the legitimate reason proffered for the employer’s action is merely pre textual for discrimination.
In its ruling, the Ninth Circuit distinguished the recent United States Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc. 135 S. Ct. 2028 (2015) which held that a plaintiff in a Title VII action alleging disparate treatment only needs to show that the request for accommodation “was a factor” motivating the employer’s actions. The Ninth Circuit held that under Title VII, discrimination can be proven whether or not the employee asked for an accommodation. Knowledge is not a requirement of a Title VII claim. By contrast, under an ADA claim, an employer must have actual knowledge of an employee’s physical or mental limitations.
In Mendoza, Alice Mendoza was a full-time bookkeeper for a small Catholic parish church in Los Angeles. She took sick leave for ten months, during which time the church’s pastor took over Ms. Mendoza’s duties and “determined that the job could be done by a part-time bookkeeper.” When Ms. Mendoza returned from sick leave, she was told that her previous position had been eliminated. She was offered instead a part-time bookkeeping position. Ms. Mendoza declined the part-time position and subsequently sued for disability discrimination and disparate treatment claims. The defendant church moved for summary judgment in the District Court arguing that Mendoza failed to raise a triable dispute as to whether the church’s legitimate non-discriminatory reason for not returning Mendoza to full-time work (the elimination of the full time bookkeeper position) was pre textual for a discriminatory reason. The District Court granted the church’s motion and Ms. Mendoza appealed.
The Ninth Circuit affirmed the summary judgment. It found the church’s decision to eliminate Ms. Mendoza’s position was for legitimate reasons. Ms. Mendoza failed to show the church’s decision was motivated in any way to discriminate against her for having taken sick leave, or that she was treated differently. In holding against Ms. Mendoza, the Ninth Circuit reaffirmed that in an ADA case, the plaintiff must prove his or her case by showing either that the employer’s actions were directly related to the employee’s disability, or, if the employer provides a legitimate non-discriminatory reason for its action against the employee, that the employer also had a second discriminatory motive.
The Ninth Circuit’s decision reaffirms the burdens in ADA discrimination and accommodation claims and confirms that if an employer introduces evidence that its failure to accommodate a disabled worker was for legitimate, non-discriminatory reasons, the employee must show that the non-discriminatory reasons proffered by the employer are merely “pretextual” and that the primary motivation for the employer’s actions was in fact discriminatory. The decision also affirms a substantial difference concerning the burden of proof in ADA and Title VII claims. Under an ADA claim, “animus” or ill-will must be proven. In the latter, discrimination can be shown even if the employer has no actual knowledge of a particular employee’s need for an accommodation. For employers, the Mendoza decision is a reminder that under the ADA, any change to a disabled worker’s position must be for legitimate, non-pretextual reasons, and that the law’s accommodation requirements require employers to seek alternative positions if the disabled worker’s initial position is no longer available or was eliminated. Only when no alternative position is truly available may employers offer the disabled employee a “lesser” position or terminate the employee.
Websites Must be Accessible to the Blind to Comply with the ADA
The National Law Review
A new trend seems to be emerging at the intersection of employment law, technology and e-commerce – companies getting sued for not making their websites compliant with the Americans with Disabilities Act (ADA).
In recent months, a spate of class action lawsuits have been filed against several online retailers, including H&M, Tory Burch, Hugo Boss and Urban Outfitters, for failing to design their websites so that they can be read by screen-reader software that allows websites to be understood by people who are blind or otherwise visually impaired. The argument is that a retailer’s website is an extension of its brick-and-mortar shops so must similarly comply with the ADA’s accessibility requirements or else be found to be unlawfully discriminatory. So far, at least one case, perhaps unsurprisingly in California, has found a retailer to have violated the ADA by denying a blind man equal access to its website. In light of what appears to be a growing trend, it would behoove companies to consider the ADA-compliance of their websites and any other online material.
J.B. Hunt Driver With Heart Condition Loses ADA Claim
Bloomberg BNA
A J.B. Hunt Transport Inc. truck driver whose Transportation Department certification was rescinded after he fainted and was diagnosed with a heart condition can't proceed with a disability discrimination claim, a federal appeals court ruled ( Williams v. J.B. Hunt Transp., Inc. , 2016 BL 196721, 5th Cir., No. 15-20610, 6/20/16 ).
The U.S. Court of Appeals for the Fifth Circuit joined the Sixth, Seventh and Eighth circuits in rejecting the commercial driver's Americans with Disabilities Act claim where a doctor had found the driver medically unqualified and the driver didn't obtain a contrary opinion through the DOT's administrative process.
Here, Jimmie Williams's DOT certification was rescinded by a physician who reviewed a report noting that Williams had been diagnosed with syncope and ventricular tachycardia. The physician did so even though two other doctors had cleared Williams to return to work after medical leave.
Williams didn't file an application with the Transportation Department to resolve the conflict among the medical evaluations, and was terminated after his leave expired.
The Fifth Circuit agreed with a lower district court that Williams can't proceed with an ADA discrimination claim because he failed to show he was qualified to perform his job after he lost his DOT certification.
To qualify for the ADA's anti-bias protections, employees with disabilities must show that they can perform the essential functions of their jobs, with or without reasonable accommodation.
“Because he lacked the DOT certification required by federal law, J.B. Hunt could not let him return to driving, and the company’s administrative termination of Williams did not violate the ADA,” the court said.
Judge Stephen A. Higginson wrote the June 20 opinion, joined by Judges Jacques L. Wiener and Gregg Costa.
Feds: Nevada discriminates against HIV inmates
Reno Gazette Journal
The U.S Justice Department says Nevada’s prisons are discriminating against inmates with HIV under illegal segregation policies that deny them access to work programs that reduce sentences for other prisoners.
Justice Department lawyers say they may sue the state under the Americans with Disabilities Act if it doesn’t change the policies based on unfounded fears about the transmission of HIV.
HIV is the virus that causes AIDS but cannot be transmitted through ordinary activities such as touching, sneezing or sharing dishes.
Justice’s chief of disability rights notified the state in a letter Monday that an ADA compliance review found HIV-infected inmates are ineligible for assignment to low-custody facilities, including conservation camps and transitional housing.
Nevada Corrections spokeswoman Brooke Keast says the department is reviewing the recommendations.
Study finds disabled inmates living in 'unacceptable' conditions
NWCN.com
A new report by Disability Rights Washington found disabled prison inmates being denied accommodations guaranteed under the Americans with Disabilities Act.
What Relief Does New Disability Access Legislation Provide for Businesses?
JD Supra
In recent years, in response to complaints from both large and small business owners, the California Legislature enacted a variety of measures to rein in lawsuits by individuals with disabilities under California’s Unruh Civil Rights Act and Disabled Persons Act (collectively “Unruh Act”). On May 10, 2016, Governor Jerry Brown signed into law Senate Bill 269 (SB 269), in another effort to provide some “safe harbor” to business owners. This article will identify some of the recent and more prominent changes to the Unruh Act (and related statutes), and how they may assist building and business owners in limiting financial responsibility for some violations of disability access laws.
Rotator Cuff Tear May Be A Covered Disability Under ADA
WorkersCompensation.com
This case may be found at Cannon v. Jacobs Field Services, 813 F.3d 586, U.S. App. LEXIS 531