Texas District Court Upholds Hospital's Policy that Disabled Employees Compete for Vacant Positions
The National Law Review
In a decision impacting the interactive process, the Northern District of Texas held in EEOC v. Methodist Hospitals of Dallas, No. 3:2015-cv-03104 (N.D. Tex. Mar. 9, 2017), that employers do not violate the Americans with Disabilities Act (“ADA”) by requiring individuals with disabilities that need reassignment as a reasonable accommodation to compete for vacant positions.
Plaintiff, a former patient care technician, requested an accommodation after an on-the-job injury precluded her from performing the required duties of lifting and transporting patients. Though she met the minimum qualifications for two vacant positions, she was not chosen for the positions and was terminated. The EEOC alleged that the Hospital maintained an unlawful policy by requiring individuals with disabilities to compete for vacant positions where the individual was qualified for the position. The Hospital argued that the EEOC was attempting to mandate additional affirmative action not required by the ADA by asserting that the employer could not choose the most qualified applicant for a vacant position.
Central to the issue in this case, the ADA lists reassignment to a vacant position as a form of reasonable accommodation. 42 U.S.C. § 12111(9). The EEOC guidance on reasonable accommodation also states that an employee does not need to be the best qualified individual for the position in order to be reassigned to a vacant position. However, the circuits have split regarding whether an employer violates the ADA by requiring individuals with disabilities to compete with other candidates for reassignment to a vacant position. Although the Fifth Circuit has not directly addressed this issue, the court reviewed the authority in the Fifth Circuit regarding affirmative action for reassignment and determined that the Fifth Circuit would likely hold, similar to the Eleventh and Eighth Circuits, that the ADA does not require preferential treatment for reassignment and merely requires employers to allow individuals with disabilities to compete equally for vacant positions. The court declined to follow contrary precedent in the Tenth and D.C. Circuits.
Employers should review their policies regarding reassignment for employees requesting an accommodation due to a disability and, as there is currently a circuit split, review the applicable law in their jurisdiction to ensure their policies are lawful. When an employee seeks reassignment to a vacant position as a reasonable accommodation, employers should work with counsel to determine whether they can require that employee to compete with other applicants for that position.
Federal Court in Los Angeles Dismisses Website Accessibility Claims
Lexology
On March 20, 2017, a federal district judge in Los Angeles granted Domino’s Pizza’s motion to dismiss a website accessibility lawsuit in a ruling that raises hopes for those battling the massive wave of web accessibility litigation and arguably makes it more difficult for businesses to decide between fight or flight. Robles v. Domino’s Pizza LLC, No. CV 16-6599 SJO (SPx), U.S. District Court for the Central District of California.
The court’s decision ratified the argument—which has been rejected by other courts—that the absence of clear regulation on what it means for a website to be “accessible” violated Domino’s’ due process rights. Grounded in the due process violation, the court dismissed the action without prejudice under the primary jurisdiction doctrine, holding that the case should not be prosecuted “pending the resolution of an issue within the special competence of an administrative agency,” which, in this case, is the U.S. Department of Justice (DOJ).
In so ruling, the court was openly critical of the DOJ’s failure to follow through on its July 26, 2010 Advanced Notice of Proposed Rulemaking (ANPRM), 75 Fed. Reg. 43460 (July 26, 2010), in which it first announced its intention to regulate in the area of website accessibility for public accommodations. Notably, despite this criticism, the court reaffirmed the DOJ’s interpretation of Title III of the Americans with Disabilities Act (ADA), in that ANPRM and elsewhere, finding that the law requires at least those websites with a “nexus” to a place of public accommodation to make their websites accessible.
But deciding what it means to be “accessible” is where the court parted ways with the DOJ, several other courts, and the flood of website accessibility claimants encountered by our clients. The court repeatedly noted the DOJ’s stated intention to regulate in this area and the resulting unfairness of the ambiguous legal obligations rendered by its repeated failure to do so. In this particular case, the plaintiff insisted on the legal enforceability of the Website Content Accessibility Guidelines 2.0 (WCAG 2.0)—private industry standards developed by the World Wide Web Consortium—which doomed his case. While this decision strengthens the hand of those website owners that want to fight against the flood of litigation in the area, it likewise strengthens the hands of vendors that have denied any obligation to website owners to comply with WCAG 2.0. It also leaves those that wish to improve the accessibility of their websites with continued uncertainty over just how to do that—an issue about which our clients are justifiably seeking guidance.
Perhaps in response to the decision’s unintended contribution to this lingering uncertainty, the court made a direct plea to “Congress, the Attorney General, and the Department of Justice to take action to set minimum web accessibility standards for the benefit of the disabled community.” We only hope that the Trump administration will recognize that this is an area where regulation will help the business community, not hurt it.
Is Stuttering A Reason Not To Hire Someone?
Above the Law
People who stutter, or stammer, struggle to get words out. It can be difficult for both speaker and listener.
“The flow of speech is disrupted by involuntary repetitions and prolongations of sounds, syllables, words or phrases as well as involuntary silent pauses or blocks in which the person who stutters is unable to produce sounds.”
Stuttering is more than just a speech issue, though – it may also be an employment issue, since the workplace is a microcosm of society and shares its issues. Communicating is, after all, a human activity that takes place everywhere – including on the job.
Is stuttering a disability under the Americans With Disabilities Act (“ADA”)? And can a person who stutters be refused a job or fired?
Eatsa Sued for Not Making Kiosks Accessible to the Blind
Eater
Eatsa, the modern automat that opened its first location in San Francisco in 2015, has been sued for not accommodating blind patrons in its ordering model or store design.
Disability rights advocates filed the class action suit earlier this week in New York City, according to Recode (view the suit in full, below). The fast-food chain, which specializes in quinoa-based bowls, currently runs two locations in Manhattan. There are a total of seven outlets in California, D.C., and New York.
Disabled man alleges Moonruby LLC's parking lot is not ADA compliant
Florida Record
A disabled Broward County man alleges a Lauderdale Lakes business has barriers in its parking lot that restrict his access to visit the property.
Luis Sierra filed a complaint on March 20 in the U.S. District Court for the Southern District of Florida against Moonruby LLC alleging violation of the Americans with Disabilities Act.
Woman alleges Stuart South Self Storage is not ADA compliant, denied her equal access
Florida Record
A Palm Beach County woman alleges a Stuart business has architectural barriers that restricts access to the disabled.
Janet Hoyt filed a complaint on March 20 in the U.S. District Court for the Southern District of Florida, Fort Pierce against Stuart South Self Storage LLC doing business as A First Class Self Storage, alleging that the defendant violated the Americans with Disabilities Act.