Zale Delaware Will Pay $30,000 To Settle EEOC Disability Discrimination Lawsuit
Zale Delaware, Inc., dba Piercing Pagoda, a jewelry retailer based in Irving, Texas, will pay $30,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Commission (EEOC), the federal agency announced today.
The EEOC's lawsuit charged that Piercing Pagoda violated federal law by firing Rose Gravel because of her disability. Gravel was employed as a manager at a Piercing Pagoda kiosk in Greenville, N.C., beginning in May 2010. Gravel has degenerative disc disease and fibromyalgia, which cause chronic pain. According to the EEOC's lawsuit, on April 26, 2013, Gravel told Piercing Pagoda she needed to sit for 15 minutes of each hour as an accommodation for her disability. Before requesting an accommodation, Gravel had been out of work on medical leave related to her disability. Gravel was cleared by her doctor to return to work with the restriction that she should take sitting breaks within the work day. Piercing Pagoda refused Gravel's request and insisted that she stand her entire work shift. Piercing Pagoda then fired Gravel instead of allowing her the requested accommodation.
Refusing to grant a reasonable accommodation to a person with a disability violates the Americans with Disabilities Act (ADA), unless it causes an undue hardship for the employer. EEOC filed suit (Equal Employment Opportunity Commission v. Zale Delaware, Inc., Civil Action No. 4:15-cv-00149-D in U.S. District Court for the Eastern District of North Carolina, Eastern Division) after first attempting to reach a pre-litigation settlement through the agency's conciliation process.
In addition to providing monetary relief to Gravel, Zale entered into a two-year consent decree requiring, among other things, that it conduct annual training for its Piercing Pagoda human resource business partners, regional managers and district managers on the ADA and its requirement that employers make reasonable accommodations for qualified persons with disabilities. Zale must also post an employee notice about the lawsuit at its Piercing Pagoda kiosk locations in the Mid-Atlantic and Southeast Regions, as well as provide periodic reports to the EEOC concerning certain employee accommodation requests.
"The need for an assistive device such as a stool should not disqualify anyone from a job," said Lynette A. Barnes, regional attorney for the EEOC's Charlotte District. "When a qualified employee with a disability is ready and willing to work, the employer has a legal duty to provide a reasonable accommodation to make that employment possible unless the employer can show undue hardship - which EEOC contends was not present in this case."
Mondaq News Alerts
Websites, mobile applications, and electronic self-service machines provide exciting and efficient ways for franchised businesses to deliver information, goods, and services to customers, but they also present thorny compliance issues under the Americans with Disabilities Act (ADA). The ADA prohibits discrimination against individuals with disabilities public accommodations (i.e., private entities that do business with the public)1 and requires them to take affirmative steps to ensure that individuals with disabilities have equal access to their goods and services. This article reviews the most common types of customer-facing electronic information technology (EIT) that franchisors and franchisees are using, the murky and evolving legal requirements that apply to them, the legal controversies that have arisen in connection with their use, and what can be done to ensure legal compliance.
Now What?: ADA's Website Accessibility Guidelines May Take Longer than Anticipated
JD Supra
Recently, the SC Employers’ Blog alerted you to a rising trend where serial claimants send demand letters to various private companies alleging the company’s website discriminates against individuals who are blind or visually impaired. That blog discussed a proposed Department of Justice (“DOJ”) rule, which would clearly define accessibility guidelines for public accommodations under Title III, and it was thought that the DOJ would implement those rules in 2018.
All recent signs are now suggesting otherwise. A recent Executive Order seems to put the DOJ rulemaking on website accessibility on hold for the foreseeable future. On January 20, 2017, all administrative agencies were temporarily “frozen” via a White House Memorandum, in order for the new agency heads appointed by President Trump to review all policies and proposed rules, and determine what agency initiatives would be continued or disbanded. On January 30, the President issued Executive Order 13771 titled “Reducing Regulation and Controlling Regulatory Costs.” This Order was issued to manage “costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.”
Bank Website ADA Litigation Update
Lexology
Recent court decisions from California and Florida may provide ammunition to retailers battling claims that their websites and mobile applications are inaccessible in violation of Title III of the Americans With Disabilities Act (the “ADA”). As we reported in a previous blog post, banks and other businesses have faced a wave of such demand letters and lawsuits. Most of these claims settled quickly and confidentially.
However, a California district court recently granted Dominos Pizza’s motion to dismiss under the primary jurisdiction doctrine, which allows courts to stay or dismiss lawsuits pending the resolution of an issue by a government agency. In Robles v. Dominos Pizza LLC, U.S. Dist. Ct. North Dist. Cal. Case No. CV 16-06599 SJO, the court held it would violate Domino’s due process rights to hold that its website violates the ADA, because the Department of Justice still has not promulgated regulations defining website accessibility – despite issuing a notice of proposed rulemaking back in 2010.
The court stated that the DOJ’s application of an industry standard, the Website Content Accessibility Guidelines 2.0 (WCAG 2.0), in statements of interest and consent decrees in other cases does not impose a legally binding standard on all public accommodations. It also noted that those consent decrees indicated flexibility to choose an appropriate auxiliary aid to communicate with disabled customers, and suggested that Domino’s provision of a telephone number for disabled customers may satisfy this obligation. Retailers that do not have an accessible website should therefore provide a toll-free number serviced by live customer service agents who can provide all the information and services available on the website.
The court rejected Dominos’ argument that the ADA simply does not apply to websites. It found distinguishable those cases holding that the ADA does not apply to retailers and service providers that operate solely on the internet, without a nexus to a brick and mortar location. It noted that Dominos “does not challenge the existence of a ‘nexus’ between its websites and its pizza franchises.”
In another website accessibility case, Andres Gomez v. Bang & Olufsen America, Inc., the sole issue before a Florida district court was whether the retailer defendant’s website was a place of public accommodation under the ADA. In granting the retailer’s motion to dismiss, the court relied on cases concluding that a website that is wholly unconnected to a physical location is generally not subject to ADA. The court noted that the plaintiff had alleged that he could not purchase products online, but did not claim that the website’s inaccessibility impeded his ability to go to a store, despite the fact that the website allowed users to make private appointments with sales representatives at a physical location.
Retailers should be aware that these district court decisions are not binding on any other judges, who may reach different conclusions, and that the plaintiffs may appeal.
Website Accessibility Under the ADA, A New Federal Court Ruling Helps Bank
Lexology
Since late last year, many banks in California, New York and Pennsylvania have received demand letters from two law firms that claim the websites of those banks violate Title III of the Americans with Disabilities Act (ADA). The demand letters assert that individuals with disabilities (typically the visually impaired) attempted to use the website of the banks, and faced unreasonable barriers to access, which made it impossible for the claimants to access the websites. The websites, according to the law firms, fail to comply with website standards developed by the World Wide Web Consortium called Web Content Accessibility Guidelines (WCAG 2.0). The law firms seek attorneys’ fees, costs and injunctive relief in connection with the demand letters.
Leave as a Reasonable Accommodation under the ADA
Lexology
In May 2016, the Equal Employment Opportunity Commission (“EEOC”) published “Employer-Provided Leave and the Americans with Disabilities Act” The EEOC published the guidance as it observed a “troubling trend:” employment policies that deny or restrict leave as a reasonable accommodation for employees with disabilities. It has been a year since this guidance was published and it is worth revisiting this issue.
The issue arises as follows. An Employer determines whether an employee is eligible for or has exhausted her Family Medical Leave Act (“FMLA”) leave. If the employee is ineligible or has exhausted her FMLA leave, the employer may deny the employee’s request for leave without consideration of the requirements of the ADA.
The ADA requires, among other things, that employers provide “reasonable accommodations” to employees with disabilities if doing so will allow the employees to perform their essential job functions. An exception exists if the accommodation would cause the employer “undue hardship.”
For many years, the EEOC has reminded employers who are covered by the ADA (those with 15 or more employees) that granting an unpaid leave of absence, or granting additional time off above and beyond that available under the Family and Medical Leave Act (FMLA) or the employer’s leave policies, may be a “reasonable accommodation that the employer should consider granting.”
Lawsuit alleges disability discrimination at nursing facility
WWMT-TV
A former nurse alleges she was forced out of her job at the Laurels of Coldwater after her supervisors informed her the company would no longer accommodate her disabilities.
Rita Morrissey said she worked at the facility in Coldwater for 16 years.
“I enjoyed working there and I loved taking care of the residents,” she said, referring to her tenure before she says new policies prevented her and others from working.
Jimmie's Restaurant alleged to have barriers to disabled patrons
Florida Record
A disabled person alleges a property owner and restaurant in Rockledge are not in compliance with the federal regulations regarding individuals with disabilities.
Patricia Kennedy filed a complaint on March 28 in the U.S. District Court for the Middle District of Florida, Orlando Division against Ichikoshi USA Inc. and Carries Enterprises Inc., doing business as Jimmie's Restaurant, citing the Americans with Disabilities Act.
What Is Autistic Self-Advocacy?
Care2.com
April is Autism Awareness Month, which makes for a great opportunity to learn about autistic self-advocacy. This movement fights to put the conversation about autism policy and the autistic community into the hands of those who know it best: autistics.
Self-advocates have visited the White House to lobby on autism policy, led successful public campaigns to combat autism stigma and organized movements like the Day of Mourning, which commemorates the lives of disabled people killed by family members and caregivers. We think their work deserves a closer look!
Autistic self-advocates, as the name implies, are autistic people who directly engage in public education, policy, and other advocacy work. They believe that they’re the biggest stakeholders in the national and international conversation about autism because they have the most to lose — and gain.
Yet, as Ari Ne’eman, founder of the Autistic Self Advocacy Network (ASAN), a major autism rights group, noted, autistics are often excluded from conversations about their own lives.