ADA accommodation can't be based on disabled employee's promise not to sue
Business Management Daily
Employers are supposed to engage in the ADA’s interactive accommodations process when a disabled employee requests job modifications. When you do, never condition an accommodation on the employee’s promise to drop an EEOC complaint or a threatened lawsuit.
Recent case: Jia worked for the IT department at a bank in the Buffalo area. Her spouse took a job in California, and she decided to resign. Her managers talked her into staying by offering her a telecommute position from California.
All went well for a while until the bank began a reorganization, and it required all telecommuters to periodically come into the Buffalo location.
Jia then informed the bank that she was pregnant and could not travel by plane from California for the duration of the pregnancy. She requested a reasonable accommodation of calling in to the meetings. Jia’s request was rejected and she was warned she would be terminated.
She hired a lawyer, and then the bank suggested it would allow her to telecommute while pregnant if she dropped any legal claims.
Jia decided to sue, claiming she had not been offered an accommodation. The bank argued it had engaged in the interactive process because it offered her the telecommuting option.
But because the offer was conditioned on Jia dropping her claims, the court said the bank had not engaged in the interactive process. Jia’s case will go to trial. (Sheng v. M&T Bank, No. 14-4467, 2nd Cir., 2017)
EEOC, ValleyLife OK $100000 deal to settle discrimination allegations
Legal News Line
The U.S. Equal Employment Opportunity Commission (EEOC) announced March 28 that ValleyLife, a disability support services company, will pay $100,000 over allegations of disability discrimination.
"People with disabilities are valuable contributors to our workforce," said EEOC Phoenix district office regional attorney Mary Jo O'Neill. "It is critically important for employers to make genuine efforts to provide reasonable accommodations for those employees with disabilities who need them. It's good business and it's also the law."
ValleyLife would, rather than provide reasonable accommodation, allegedly fire employees with disabilities if they needed extended leave or reassignment, according to the EEOC. The commission says the company terminated employees who had exhausted their paid time off and/or any unpaid leave under the Family Medical Leave Act (FMLA) rather than determine whether they could provide employees with reasonable accommodations that would allow the employees to continue work.
Man alleges Entergy refused to accommodate disability
The Louisiana Record
A former security shift supervisor alleges he was terminated from his job at the Entergy Nuclear Plant in West Feliciana because of his disability.
Vincent Honey Sr. filed a complaint on March 16 in the U.S. District Court for the Middle District of Louisiana against Entergy Services Inc., Entergy Operations Inc. and Entergy Corp. alleging that they violated the Louisiana Employment Discrimination Law and the Americans with Disabilities Act.
According to the complaint, the plaintiff alleges that he began employment with the defendants in 2009 and suffered a seizure on the job in September 2014. He alleges he requested accommodation to continue working with the defendants. The suit states that on Feb. 24, 2016, he was discharged from his employment because of his disability.
The plaintiff holds Entergy Services Inc., Entergy Operations Inc. and Entergy Corp. responsible because the defendants allegedly refused to provide reasonable accommodation and failed to engage in any interactive process in accordance with the ADA.
The plaintiff requests a trial by jury and seeks punitive damages, plus interest, costs of these proceedings and all other relief to which he is entitled. He is represented by Robert L. Campbell of Williamson Fontenot Campbell & Whittington LLC in Baton Rouge.
U.S. District Court for the Middle District of Louisiana Case number 3:17-cv-00150
Man alleges Papa John's website violates Americans with Disabilities Act
Florida Record
A blind man claims Papa John's website is not accessible to the visually impaired.
Andres Gomez filed a complaint on behalf of himself and all others similarly situated on March 28 in the U.S. District Court for the Southern District of Florida against Papa John's International Inc. and Papa John's USA Inc. alleging violation of the Americans with Disabilities Act.
According to the complaint, the plaintiff alleges that the defendants' website does not properly interact with screen-reader software used by visually impaired individuals and the site does not offer any other type of accommodation. He alleges this is in violation of the ADA.
The plaintiff seeks judgment against defendant, permanent injunction, an order certifying collective action, appoint class representative and counsel, attorney's fees, and other relief as the court deems just. He is represented by Anthony J. Perez and Alfredo Garcia-Menocal of Garcia-Menocal & Perez PL in Miami.
U.S. District Court for the Southern District of Florida Case number 1:17-cv-21155
Wisconsin Employer Resolves EEOC Case Involving Wellness Program and Retaliation
The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has resolved its suit against Orion Energy Systems, a Manitowoc, Wis., lighting company, challenging a wellness program under the Americans with Disabilities Act (ADA) and alleging that the employer retaliated against an employee who objected to the program by terminating her.
In its suit, the EEOC contended that Orion instituted a wellness program that unlawfully required medical examinations and made disability-related inquiries. When an employee, Wendy Schobert, declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert. Shortly thereafter, Orion fired Schobert, the EEOC said.
The EEOC maintained that Orion's wellness program violated the Americans with Disabilities Act (ADA) as it was applied to Schobert, and that Orion unlawfully retaliated against Schobert because of her good-faith objections to the wellness program. The EEOC filed its lawsuit in U.S. District Court for the Eastern District of Wisconsin (EEOC v. Orion Energy Systems, Inc., No. 14-CV-1019 E.D. WI) after first attempting to reach a pre-litigation settlement through its conciliation process.
Upon cross-motions for summary judgment, the district court rejected the employer's argument that the insurance safe-harbor provision in the ADA immunizes wellness plans from ADA scrutiny. The court concluded that the EEOC's recently issued regulations on the ADA's safe-harbor provision were within the EEOC's authority, and further held that the safe-harbor provision did not apply even without regard to the new regulations. However, the court found that the wellness plan was lawful because it concluded that the employee's decision whether to participate was voluntary under that law existing prior to the regulations, which were not applicable in the case.
TheHRDigest
Depression, of course, is not just an extreme form of sadness or grief. It is a clinically defined mental illness that affects roughly one in eight working Americans over the age of 18. Yet, in many workplaces, depression is regarded as a character flaw rather than a treatable illness.
Dentistry IQ
Dental practices are taken by surprise when they find out they can be sued if their websites do not comply with the American with Disabilities Act. This is not a scam! What can your dental practice do to avoid this problem?
Can an Employee take FMLA Leave to Care For a Sibling? Before You Say "No," Read This
JD Supra
Despite the employee-friendly language in an FAQ on the DOL website, FMLA leave for siblings should be a rare event indeed. When your employee seeks FMLA leave to care for a sibling, it’s critical that they first meet the stringent criteria above. Don’t settle for anything less.
Mathis demands apology after ADA scuffle
Visalia Times-Delta
Assemblyman Devon Mathis is demanding an apology from Assembly Judiciary Chairman Mark Stone (D- Monterey Bay) for his conduct during a hearing.
Mathis said Stone was “unprofessional and disrespectful” while Mathis presented AB-150, which provides small business owners a six-month grace period to correct any Americans with Disabilities Act, ADA violations.
Several small business owners from around California, rallied around Mathis to testify on behalf of the bill – Stone denied them their opportunity.
Disabled woman alleges she was denied full access at Westchester Golf & Country Club
Florida Record
A Palm Beach County woman claims a golf course has barriers that restrict access to the disabled.
Janet Hoyt filed a complaint on March 28 in the U.S. District Court for the Southern District of Florida, West Palm Beach Division against Westchester Golf & Country Club LP, doing business as Westchester Golf & Country Club, alleging violation of the Americans with Disabilities Act.
According to the complaint, the plaintiff alleges that on Feb. 2, 2017, she visited the defendant's property and was denied full and equal access and enjoyment of the services, programs, goods, amenities and activities being offered there because of the illegal architectural barriers. The plaintiff holds Westchester Golf & Country Club LP, doing business as Westchester Golf & Country Club responsible because the defendant allegedly does not have an accessible restroom or a loading zone in the parking area.
The plaintiff seeks judgment against defendant, declaratory relief, alter non-compliant premises and facilities, attorneys' fees, all costs, expert fees, and further relief as it may deem necessary. She is represented by Jason S. Weiss and Zachary W. Smith of Weiss Law Group PA in Coral Springs.
U.S. District Court for the Southern District of Florida, West Palm Beach Division Case number 9:17-cv-80394