Settlement Agreement:
· Omaha Performing Arts Society
Lexology
There has been a proliferation of ADA lawsuits alleging that websites are not accessible to the blind or deaf. Individuals who are blind or have low vision may require assistive devices and specialized software to access the Internet. These devices often include software that enables them to magnify the content of a web page, reads the content to them, or enables them to use a braille reader to read a website. Some individuals with disabilities cannot use a mouse and can only navigate with a keyboard, touchscreen, or voice recognition software. For persons with hearing impairments, the visual aspects of a website are accessible, but audio on a website may not be.
What? He failed a drug test … so how can he sue under the ADA?
Hr Morning
The moral of this story: Like the feds, the courts want to see you do everything in your power to work with disabled individuals.
If you can’t show that you did everything in your power to help those with disabilities perform their jobs, you’re going to have a lot of difficulty getting a discrimination claim thrown out of court. That’s the legal landscape employers are now facing.
10th Circuit ADA Ruling Drives Home the Importance of Written Job Descriptions
Lexology
A cancer survivor’s Americans with Disabilities Act (ADA) lawsuit against a prospective employer was rejected this week by the U.S. Court of Appeals for the 10th Circuit in Kilcrease v. Domenico Transportation Co. The case involved a truck driver who, after successfully overcoming cancer, applied for work with a trucking company, Domenico Transportation. The job required applicants to (1) hold a Class A commercial driver’s license, (2) have three years of recent and verifiable mountain driving (the company is located in Colorado), (3) have no moving violations within a three-year period and (4) be able to drive year-round in the Colorado mountains.
During the application process, the employee disclosed that he had been unemployed for several years due to cancer, but that it now was in remission. The trucking company subsequently rejected his application, ostensibly because he lacked three years of recent driving experience, which was required by the company’s auto-insurance underwriter. The driver warned Domenico that not hiring him violated the ADA, but the company did not change its mind.
The truck driver then sued under the ADA. The district court rejected his claims, and this week, the 10th Circuit agreed – relying in large part on the employer’s written job description.
The court found that the applicant was not a qualified individual with a disability because he was unable to perform the essential functions of the job. This is why a written job description can be critical.
The job description in this particular case required qualified applicants to have three years of mountain driving experience, but as it turns out, the plaintiff only had about half that. In evaluating the criteria for the job, the court gave considerable weight to the employer’s depiction of the job’s essential functions – and particularly the three-year mountain driving requirement – and refused to second-guess the employer’s rationale because the requirements were job-related, uniformly enforced and consistent with business necessity.
As a result, the court concluded that the plaintiff could not establish a prima facie case of discrimination under the ADA because he failed to establish that he was a qualified individual with a disability.
The job description in this case was central to the company’s decision not to hire the plaintiff and ultimately, was the crux of the judicial decision to dismiss the case against the company. If the trucking company had not maintained a job description with specific requirements – such as three years of mountain driving – the company would have been forced to prove the requirements through oral testimony. Inherently, proof through oral testimony is much harder to establish and is a lot easier to challenge. As seen in this case, having a written job description that accurately reflects the requirements of the job, and which is adhered to by the company, can sidestep a lot of these problems.
The full case citation is Kilcrease v. Domenico Transportation Co., 10th Circuit Case No. 15-1320 (July 12, 2016).
Fourth Circuit Clarifies Application of Disability Regulations to Federal Motor Carriers
Lexology
In Lisotto v. New Prime Inc., the United States Court of Appeals for the Fourth Circuit concluded in a ruling on May 3, 2016, that certain provisions within the Federal Motor Carrier Safety Administration (FMCSA) regulations do not always apply when issues arise under the Americans with Disabilities Act (ADA).
John Lisotto, a South Carolina Department of Corrections employee, applied for a job as a long-distance truck driver with Prime, Inc. (Prime). He was an experienced commercial driver, with about seven years of prior driving experience throughout the United States. A few weeks after applying for the position, Lisotto received an email from a Prime recruiter approving him for an orientation program and informing him of components of the hiring process, including a drug screening.
Pennsylvania Court Says Museum Must Waive Admission Fee for Personal Care Assistants
JD Supra
Pennsylvania court rules that a museum violated the ADA when it refused to waive the entry fee for a guest’s personal care assistant.
A federal district court judge in Pennsylvania court recently held that Title III of the ADA required the Franklin Institute (“FI”) to waive the admission fee for the personal care assistant (“PCA”) of a person with a disability to attend a movie screening at the museum. Title III of the ADA requires public accommodations to make reasonable modifications to their normal policies practices and procedures where necessary to ensure access for individuals with disabilities, unless doing so imposes an undue burden or fundamentally alters the nature of the goods and services being offered. The court found that waiving the fee would not pose an undue burden or result in a fundamental alteration in this case.
FI argued that free entry would result in dramatic economic consequences to the museum, including deficits, ineligibility for grants, elimination of services, budget cuts and ultimately layoffs.
The judge disagreed with colorful prose, finding no loss of revenue and nothing more than a de minimus added cost to FI; calling FI’s arguments “worthy of the antagonist in a Dickens novel.” The judge noted that the museum’s existing practice of providing folding chairs for PCAs to sit next to wheelchair users would not cost the museum any money because the folding chairs were not normally sold to patrons. The court also noted that FI spends substantial sums on charitable efforts and gives reduced price tickets to people who cannot afford to pay. The court criticized FI’s argument that parents or babysitters of children must pay for entry, noting that individuals with disabilities are not the same as children.
While a well-heeded cautionary tale, this case is not of universal applicability. It does not mean museums and other institutions must always let companions in for free. Rather, places of public accommodation must take their obligation to make reasonable modifications to policies, procedures, and practices seriously, and conduct a meaningful analysis of whether making the modification would really impose an undue burden or result in a fundamental alteration. The decision also serves as a reminder that disability access defenses are highly fact intensive and cannot be decided early in a case. The practical approach in some cases may be to make the modification rather than watch fees increase in the process of litigating a case.
Fired police lieutenant sues Elon
Burlington Times News
After losing her job, former police Lt. Cynthia Ring sued Elon, saying its police department fired her over a disability that limited her mobility but didn't interfere with her duties.
Decades Later, Questions Linger Over Disability Access Online, But ADA Litigation Continues
Lexology
When the Americans with Disabilities Act (ADA) was enacted in 1990, computers used floppy disks and the “World Wide Web” was still being tested by scientists at CERN. So while the law’s drafters had a good sense of what access would look like in the physical world, they had no idea what sort of economic and social changes were in store with the birth of the Internet.
Fast forward to 2016, and the law is still murky as to disability access issues online. But that uncertainty has not stopped the plaintiffs’ bar from filing lawsuits claiming that websites are inaccessible to users with disabilities and thus violate the ADA.
Many disabled individuals access the Internet using assistive technologies. For example, blind individuals or those with low vision can use screen readers that read website content aloud for them. Websites that are incompatible with assistive technology can create barriers for users with disabilities and give rise to costly and uncertain litigation.
Center For American Progress
This year marks the 17th anniversary of the landmark Supreme Court decision in Olmstead v. L.C., which held that unjustified segregation of people with disabilities in institutional settings constituted unlawful discrimination in violation of the Americans with Disabilities Act, or ADA. Ending the mass incarceration of people with disabilities will require meaningful investment in the nation’s social service and mental health treatment infrastructure to ensure availability and funding for community-based alternatives, so that jails and prisons are no longer forced to serve as social service providers of last resort. But bringing about this change will also require including disability as a key part of the bipartisan conversation on criminal justice reform taking place in Congress, as well as in states and cities across the United States.