Retailers Seek to Improve Website Accessibility Following Surge of ADA claims
JD Supra
Retailers have faced a wave of demand letters and lawsuits recently alleging that their websites are inaccessible in violation of the Americans With Disabilities Act of 1990 (the “ADA”), despite the fact that the ADA and its implementing regulations do not expressly address websites. This is the second in a three-part series addressing ADA access claims. In a December 1st post we addressed how to reduce potential liability for premises issues, and this post focuses on website accessibility.
Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation,” 42 U.S.C. § 12182(a), which includes brick and mortar retail stores.
Light-duty work can bring heavy questions for employers, employees
Greeley Tribune
Whether an organization offers light-duty work as a way to reduce workers’ compensation costs or as a way to keep injured employees productive, chances are you (as an employer or as an employee) have questions about its implementation. This article provides answers to five of the most common questions about light duty.
Arizona Lawmaker Wants To Incentivize Businesses To Comply With The ADA
KJZZ
An Arizona lawmaker wants to give businesses that make modifications in order to comply with the Americans with Disabilities Act a tax break.
If passed, Representative Vince Leach’s bill would incentivize a business owner to remove barriers that could prevent a person with a disability from having access.
Sarah Kader is an attorney with the Arizona Center for Disability Law. She calls the bill positive.
"Overall, I mean, we are hoping to see increased compliance with the ADA so that businesses are accessible, and we think that businesses should be able to have this tax benefit if they do remove barriers," Kader said.
Besides removing physical barriers, a business would also get a tax break if they provide qualified interpreters for people who are hearing impaired.
Feds sue New York police over man's HIV discrimination claim
LGBTQ Nation
The New York Police Department violated the Americans with Disabilities Act by denying an HIV-positive man a position as an emergency dispatcher, federal prosecutors said.
Raymond Parker applied for a position as a police department technician in 2013 and was given a conditional offer of employment, prosecutors said. He underwent a background check and medical tests, which disclosed he had HIV, the virus that causes AIDS.
Justice Department Pushes Law Enforcement On ADA Compliance
Disability Scoop
Federal officials are highlighting the responsibilities of everyone from police to courts and attorneys in ensuring that people with developmental disabilities are treated fairly.
The Americans with Disabilities Act prohibits discrimination against those with disabilities during interactions with the criminal justice system, according to new guidance from the U.S. Department of Justice.
State Did Not Waive Immunity in Case Over ADA Claim
New Jersey Law Journal
A state agency's failure to assert a sovereign immunity defense during its trial on an Americans with Disabilities Act claim does not amount to a waiver of immunity, a divided New Jersey Supreme Court has ruled.
NJ Police Immune From Ex-Trooper's ADA Claim: Justices
Law360
The New Jersey Supreme Court on Tuesday affirmed that the state police are immune from an ex-trooper’s accusation that it violated the Americans with Disabilities Act, ruling that the state’s delay in asserting the defense didn’t amount to a waiver.
The justices’ split ruling dealt a partial blow to Brian Royster, who accused his former employer of violating the ADA as well as the state’s Law Against Discrimination and Conscientious Employee Protection Act by failing to accommodate his ulcerative colitis.
The high court also found, however, that Royster’s LAD claim was wrongly dismissed under the CEPA waiver provision because of the “substantially independent nature” of the accusation and remanded that matter for entry of a $500,000 judgment in favor of Royster.
Royster’s high court petition sought to reinstate a $1 million trial court award the Appellate Division overturned in March 2015. But the justices didn’t buy his argument that the state waited until the appeals stage to raise a sovereign immunity defense.
A court can’t nullify sovereign immunity for federal claims under the ADA, regardless of the state’s “inexplicable delay” in raising that defense, said the justices, noting that the Appellate Division correctly relied on the Third Circuit’s 1989 decision under Fitchik v. New Jersey Transit Rail Operations, holding that the public agency was an arm of the state.
“Thus, because the Legislature has provided no clear and unequivocal expression of consent to be sued under the ADA, the [New Jersey State Police] enjoys sovereign immunity from Royster’s ADA claim,” wrote Justice Lee M. Solomon, writing for the majority.
Despite Royster’s repeated requests to be transferred to a position that provided access to a restroom, the state police kept him on surveillance duty in a vehicle for several months, the opinion said. The appeal by the ex-trooper questioned whether the state police either waived the defense through its litigation conduct or was estopped from asserting the sovereign immunity defense.
Justice Barry T. Albin offered a dissenting opinion that a state’s litigation conduct may constitute an exception to the doctrine of sovereign immunity as a “reasonable and fair adaptation of the common law,” and not a “novel notion.”
“The majority treats sovereign immunity as though it is an immutable doctrine, but it is not. Sovereign immunity finds its source in the common law, and the common law adapts to changing circumstances to advance notions of fair play and equity,” Justice Albin said.
The trooper, a 25-year veteran of the force who now teaches criminal justice at Saint Peter’s University, filed suit against the state police, Superintendent Rick Fuentes and various other individuals in 2005 and amended the complaint several times. The ADA claim asserted that his supervisor assigned him to a patrol car, preventing him from having easy access to a restroom, according to the appellate division’s opinion.
Royster, who is black, also contended the state violated LAD by subjecting him to a pattern of disparate, racially motivated treatment by a supervisor and that complaints about the behavior weren’t properly investigated. After making waves about the department’s alleged practices, he was allegedly denied promotions and given a poor evaluation, which was the basis of Royster’s CEPA claim.
Neither the U.S. Supreme Court nor the New Jersey justices have ever applied equitable estoppel to a sovereign immunity defense, Justice Solomon noted in the opinion. And even if the concept could be applicable, the Royster court would reject it because there was no misrepresentation of facts by one party or ignorance of the facts by the party seeking an estoppel, the opinion said.
Addressing its revival of the LAD claim, the opinion noted that the LAD statute contains a “clear and unequivocal” waiver of sovereign immunity because it includes state agencies as employers, and therefore only CEPA’s waiver provision could bar Royster’s LAD claim.
But the provision didn’t apply because of the CEPA claim, which alleged the state police retaliated against Royster for his complaints about the failure to accommodate him, was distinct from the LAD allegation that they didn’t station him near a restroom, the opinion said.
A trial court dismissed the LAD claim under the CEPA waiver clause, leaving the jury’s consideration limited to the ADA and CEPA claims. The appellate division in March 2015 ordered a new trial on the CEPA claims, but agreed that the 11th Amendment insulated the state from the ADA claim. The justices in September agreed to take up Royster's appeal.
Royster's attorney, Michael J. Reimer, told Law360 he was thrilled with the court's revival of the LAD claim. A spokesman for the New Jersey Office of the Attorney General declined to comment.
Royster is represented by Michael J. Reimer.
The defendants are represented by Michael C. Walters, Lisa A. Puglisi, Benjamin H. Zieman, Laurel B. Peltzman and Ralph R. Smith III of the Office of the New Jersey Attorney General.
The case is Brian Royster v. New Jersey State Police at al., case number 075926, in the Supreme Court of New Jersey.