Diallo’s Of Houston Sued by EEOC For Disability Discrimination
Diallo's, a Houston-area nightclub and party venue, violated federal anti-discrimination laws when it forced an employee to provide medical documentation to prove that she was not HIV-positive, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. When the employee failed to provide the documentation, she was unlawfully fired, EEOC said.
The lawsuit charges that Diallo's owner/manager approached the employee and informed her that the owner/manager had heard from an unidentified third party that the employee was HIV-positive, which the owner/manager simply surmised to be hazardous to the company's business. The owner/manager then demanded, on two separate occasions, that the employee provide documentation to show that she was not, in fact, HIV-positive, and informed the employee that if she could not provide such documentation, she would be terminated. The employee did not provide such documentation and was fired.
EEOC charges that Diallo's violated the Americans with Disabilities Act by making an impermissible disability-related inquiry that was unrelated to the employee's job requirements or any business necessity, and by firing her because of her disability when she failed to provide medical documentation. EEOC filed suit against Diallo's Entertainment, Inc. dba Diallo's of Houston (Civil Action No. 4:16-cv-02909) in U.S. District Court for the Southern District of Texas, Houston Division, after first attempting to reach a voluntary pre-litigation settlement through its conciliation process. EEOC seeks an injunction, back pay with pre-judgment interest, reinstatement (or, in the alternative, front pay), compensatory damages and punitive damages, in amounts to be determined at trial.
"It is starkly unfair as well as unlawful to force an employee to prove that the employee does not have an ailment because it heard the employee might have it," said Rayford O. Irvin, district director of EEOC's Houston District Office. "Federal law makes clear the parameters under which an employer may use medical exams, and Diallo's clearly violated them."
Jim Sacher, EEOC's regional attorney in Houston, explained, "An employer cannot make business decisions affecting an employee who it heard had a disability such as HIV based on generalized assumptions and unsupported conclusions about the effects of the possible disability on the workplace. Knee-jerk reactions to such disabilities - especially if the supposed condition is based on hearsay - are not only outdated, they are illegal."
Fired WB Behavioral Hospital Co. employee files discrimination suit
Citizens Voice
A Wilkes-Barre Behavioral Hospital Company employee fired after clashing with management over her access to air conditioning has filed a federal discrimination lawsuit.
Shelly Grochowski of Wilkes-Barre recently filed suit against her former employer over alleged violations of the Americans with Disabilities Act after she says she was denied an air-conditioned office.
4 Key Points on Additional Leave as an Accommodation to Employee Disability
Corporate Counsel
On May 8, the Equal Employment Opportunity Commission published "Employer-Provided Leave and the Americans with Disabilities Act." Much of the guidance in that 11-page publication is not new. But it nevertheless should be useful to employers because of its expanded discussion of whether additional leave must be provided to an employee who already has exhausted other available leaves but still cannot return to work because of a disability.
The Americans with Disability Act (ADA) generally requires reasonable accommodation for an employee's disability unless the employer will suffer undue hardship. Reasonable accommodation can include leave of absence. That possible entitlement to ADA leave exists notwithstanding that other leave rights, not based on disability, are legion, at least in some jurisdictions.
So how should an employer respond when an employee exhausts other leave entitlements and then claims that, because of a disability, even more leave is needed before returning? The EEOC addresses this question by making four points.
UPCO Sued By EEOC for Disability Discrimination
JD Supra (press release)
UPCO, Inc., a Claremore-Okla.-based leading manufacturer of sucker rods and accessories for the oil and gas industry, violated federal law when it refused to hire a temporary worker for a permanent job on the basis of a supposed disability that emerged during a questionable medical exam, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.
When to Say When? Fifth Circuit Rules on When an Accommodation Isn’t Working
JD Supra (press release)
In a published opinion, the Fifth Circuit has held that an employee’s poor performance in a light-duty position can relieve the employer from any further obligation to find a reasonable accommodation under the Americans with Disabilities Act (ADA). This opinion highlights the importance of the interactive process, and emphasizes that both the employer and the employee must put forth a good faith effort to make an accommodation work.
In Dillard v. City of Austin, Texas, Dillard was injured on-the-job, and then took 12 weeks of Family and Medical Leave Act (FMLA) leave. After his FMLA leave expired, the City continued his leave through a 180-day “Return to Work” program. At the end of that program, Dillard was still unable to return to work, but the City again allowed him to remain on leave. Nearly a year after the accident, Dillard was medically cleared for “limited duty” or “administrative duty” work and sought to return to work.
The City offered Dillard a temporary position as an administrative assistant. Dillard, a manual laborer, expressed doubt about whether he would be able to do the job, but accepted the position. Because he had no secretarial experience, the City offered him several opportunities for typing classes and computer training, but Dillard failed to sign up. Instead, he admitted that he frequently came to work late and left early. When he was at work, he admitted that he made personal calls, played computer games and surfed the internet. He let his supervisors know that he was unhappy in the administrative position and asked to be moved to a different job more suited to his experience. Instead of moving Dillard to a different position, the City terminated him due to his poor performance.
Dillard sued the City under the ADA for discriminatory termination and failure to accommodate. He claimed that the City failed to act in good faith to find a more suitable position to accommodate his disability once it became obvious that the administrative position was a poor fit.
The Fifth Circuit disagreed and affirmed the lower court’s grant of summary judgment in the City’s favor. The Court found that Dillard’s admittedly poor job performance in the light-duty position was not just a legitimate non-discriminatory reason for his termination, but was also evidence that the plaintiff – not the City – caused a breakdown in the interactive process to accommodate his disability. The Court emphasized that
“the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation.”
The Court stated that once Dillard accepted the secretarial position, “the ball was in his court: it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.” Because Dillard failed to make an effort to succeed in the light-duty position, the Court found that the City was under no further obligation to try to accommodate his disability.
What Should Employers Do?
The Fifth Circuit’s decision should reassure employers that if they are acting in good faith, they are fulfilling their responsibility under the ADA. In providing reasonable accommodations, employers should do what they can to help the employee succeed but do not have to put up with poor performance.
Small Bailey restaurant says ADA lawsuit is forcing it to close
FOX31 Denver
The Riverbend Market and Eatery is closing its doors next month and the owners said it’s because of a lawsuit.
Riverbend employs 30 people and in the 18 months it has been open and it has quickly become one of the busiest restaurants in the area.
But Riverbend is getting ready to close on Oct. 30.
The restaurant is at the center of a lawsuit that alleges it is not in compliance with the Americans with Disabilities Act and is discriminatory against people with disabilities.
Richmond City Sheriff’s Office, Richmond, VA
Opposition to Defendant’s Motion for Summary Judgment (Word) | PDF -- re: reassignment as a reasonable accommodation- arguing that the ADA required Defendant to reassign a qualified employee as a reasonable accommodation and that reassignment would not have imposed an undue hardship
5 steps to avoid being the next target of an ADA claim
Phoenix Business Journal
According to the law firm Seyfarth Shaw LLP, the number of employment-related lawsuits filed under Title III of the Americans with Disabilities Act (ADA) is growing at an alarming rate, increasing by 62.4 percent (comparing figures from the first half of 2015 to the first half of 2016).
Title III of the ADA requires entities that serve the public to be accessible to individuals with disabilities.
Workplace Retaliation: What Is It and How to Avoid It
Lexology
The Equal Employment Opportunity Commission (EEOC) recently issued updated guidance on workplace retaliation issues. This is the first update to the workplace retaliation policy since 1998 for what has become the most commonly reported complaint among employees in all sectors of employment in the U.S. As employers know, retaliation is taking a materially adverse action against an applicant or employee because that person engaged, or may engage, in asserting his/her rights under any of the statutes enforced by the EEOC which include: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act (ADEA); Title V of the Americans with Disabilities Act (ADA); Section 501 of the Rehabilitation Act (Section 501); the Equal Pay Act (EPA); and Title II of the Genetic Information Nondiscrimination Act (GINA). Those who can allege retaliation include job applicants, and current or former employees.
While the new EEOC guidance does not alter the three basic elements of a retaliation claim, the new guidance does interpret those elements more broadly. The elements are:
· the individual engaged in protected activity (participating in an equal employment opportunity (EEO) process or opposing discrimination);
· the individual is subject to a materially adverse action by the employer; and
· the individual can show a causal connection between the protected activity and the materially adverse action.
WhisperRoom Builds ADA Compliant Booths
Radio magazine
WhisperRoom is making its isolation booths available to everyone by creating a new booth that is compliant with the Americans with Disabilities Act.
Accessibility On Demand: User1st Moves One Step Closer to Making the Web Accessible to Everyone
Benzinga
User1st LTD announced it has completed a Series A round led by US-based fund Cornerstone Venture Partners, alongside 500 Startups and other private investors, such as Shaked Ventures and Nissim Barel. Launched in 2014, User1st's technology enables companies to easily and efficiently ensure that their websites are compliant with the highest web accessibility standards. To date, the company has raised over $5,000,000 in funding, and currently has over 100 enterprise customers, including IKEA, INTEL, ELAL Airlines, F5, the Mexican Government, Georgia Tech University, Master Card Israel and Leumi Bank.
Despite lawsuit threats, non-ADA compliance is discrimination
AZ Big Media
An organization calling itself Advocates for Individuals with Disabilities (AID) has filed about 1,500 lawsuits this year and sent another 42,000 warning notices about Americans with Disabilities Act (ADA) non-compliance, drawing the ire of small businesses across the Valley.
Most notices concern parking lot violations such as the lack of a van accessible space or inaccurate sign height for accessible parking.
AID typically gives businesses 30 days to respond after which it may file suit. Responding businesses are paying settlements between $3,500 and $7,500 to avoid litigation and attorney fees as well as the few hundred dollars to make the corrections. Many businesses claim they don’t understand what the violations are for. Those who have settled claim that AID never returned to verify the issue was resolved, leaving them open to future litigation.
Businesses feel extorted by a disingenuous plaintiff and attorney who never actually intended to patronize the business. It appears that AID is driving from one zip code to another, photographing parking lots at shopping centers, strip malls, small property owners, and other “mom & pop” types looking for ADA violations.
New Payment Terminal Mount Addresses Accessibility Concerns
Point of Sale News (tm) (press release) (blog)
Major retailers have recently faced litigation for alleged National Federation of the Blind and ADA (Americans with Disabilities Act) violations. Claims include inaccessible or unusable payment keypads for wheelchair users or visually impaired customers at the point of sale.