ADA Failure To Accommodate Claim Requires Adverse Action
JD Supra (press release)
The Tenth Circuit Court of Appeals has faced one of the least litigated issues under the ADA. Is a failure to accommodate the restrictions of a disabled employee, itself, an adverse employment action? Answer: no.
Almost all ADA failure to accommodate cases arise when the employee is let go because he or she is unable to do the essential functions of the job, but the employee contends a reasonable accommodation would have been possible. In all those cases, the employee has been discharged—a clear adverse employment action. But what happens if the employer and employee engage in the interactive process, run out of ideas for accommodations, and just don’t address the issue again? The employee continues in the job, without discipline and without discharge. Is there an actionable failure to accommodate claim?
In Exby-Stolley v. Bd. Of Cnty Comm’rs, No. 16-1412 (10th Cir. Oct. 11, 2018), the circuit court analyzed the text of the ADA and ruled that substituting “failure to accommodate” into the anti-discrimination provision still leaves the requirement to show the failure was “in regard to” application procedures, hiring, advancement, discharge, compensation, training, or other terms and conditions of employment.
Of course, we can’t take this too far. If the employee is unable to enjoy the benefits of employment or is materially and adversely affected in performing the job, those might supply the necessary adverse employment action. The key here is that the employer does not run out of time to continue the interactive process so long as the employee has not suffered an adverse employment action.
Police Officer's Disclosure Of Adderall Prescription Insufficient To Support Disability Discrimination Claim
JD Supra
A police officer who disclosed his Adderall prescription to his supervisor was unable to state a claim for discrimination based on an actual or perceived disability under the Americans with Disabilities Act or Pennsylvania Human Rights Act. Jeannot v. Philadelphia Housing Authority, et al, Case No. 18-1977 (E.D. Pa. Oct. 2, 2018).
The officer’s lawsuit stemmed from his termination following a reasonable suspicion drug test. The officer, who worked the night shift, filled an Adderall prescription at a drugstore during his shift on the night in question. He claimed that his partner secretly recorded him during a response to a domestic disturbance call, and was away from the patrol car speaking on the phone for a significant amount of time. The officer subsequently was required to return to police headquarters. When he arrived, he was told to go home early.
The following day, the officer’s supervisor visited his home and informed the officer that he was under investigation and that he was required to undergo reasonable suspicion drug testing. The housing authority terminated the officer’s employment within a few weeks of the test. The officer claimed that he disclosed his Adderall prescription to his supervisor during his employment, and that he had a note from his doctor stating that his use of Adderall would not impact his ability to perform his job duties.
The lawsuit alleged that the housing authority discriminated against the officer based on his disability, regarded him as disabled, failed to accommodate his disability, and retaliated against him. The housing authority moved to dismiss the officer’s ADA and PHRA claims for failure to state a claim.
The “lynch pin” of the officer’s “regarded as” claim, was that his supervisor had knowledge of his Adderall prescription. The court first highlighted several cases holding that an employer’s knowledge of an impairment alone is insufficient to establish a “regarded as” claim. The court reasoned, “If an employer’s knowledge of an impairment is insufficient on its own to demonstrate it regarded the employee as disabled, then surely knowledge an employee is taking medication is insufficient as well. To conclude otherwise would allow any individual who provides notice to his employer that he is taking a particular medication, without any additional factual allegations, to establish aprima facie case of regarded as disability discrimination.” Because the employee failed to allege any facts regarding how the officer’s supervisors reacted to or perceived him, the court dismissed the “regarded as” claim without prejudice.
The court also determined that the complaint did not allege sufficient facts to establish the existence of an actual disability. Although the officer claimed he was prescribed Adderall to help him maintain focus and concentration, he did not affirmatively state that he had any problems with focus or concentration. The court also held that the officer’s failure to allege a disability was fatal to his failure to accommodate claim. The officer’s retaliation failed, because he did not allege any facts to show that he engaged in protected activity prior to his termination.
Department of Justice Continues to Focus on Website Access and Disability Accommodations
Lexology
Last week, the Department of Justice (DOJ) sent a letter to Congress reaffirming its stance that Title III of the Americans with Disabilities Act (ADA) applies to websites. The DOJ also signaled that, despite its reaffirmation, it does not intend to issue specific regulations explaining what websites need to do in order to actually comply with the ADA at this time.
Title III of the ADA requires “places of public accommodation” (in other words, businesses open to the public) to meet certain architectural guidelines designed to ensure that disabled patrons can access the business. These regulations are very specific, covering everything from the width of store aisles to the height of checkout counters and the spacing of seating to the amount of pressure needed to open a store’s door. Title III empowers private individuals to sue businesses to enforce these standards and recover their attorney’s fees. This enforcement mechanism has led to a proliferation of law firms that routinely file hundreds of disability-access lawsuits with the goal of settling for their fees.
As we’ve discussed (Labor and Employment Alert: Plaintiff Scores a Landmark Victory in ADA Public Accommodations Website Accessibility Trial and Labor and Employment: Proposed Rule Would Make Websites 'Public Accommodations' under the ADA ), these lawsuits have moved from physical accessibility to the digital realm. Over the last decade, the Obama-era DOJ and courts — notably in Gil v. Winn-Dixie Stores, Inc., for example — have taken the position that Title III’s accessibility requirements apply to websites that are accessible to the public and that bear some nexus to a physical location (e.g., selling goods or services, providing directions to a physical store, listing a restaurant’s menu, etc.). In the absence of regulations interpreting Title III’s accessibility mandates, businesses were directed to a set of Web Content Accessibility Guidelines (WCAG) developed by the World Wide Web Consortium, a non-profit organization dedicated to website accessibility. The Obama DOJ had previously proposed to adopt the WCAG as regulation, but the Trump DOJ shelved that proposal. This led to speculation as to whether the DOJ was reconsidering its position on the applicability of Title III to websites.
However, the DOJ’s letter to Congress indicates the agency has not changed its position under the new administration. But the DOJ remains unwilling to adopt formal regulations that would introduce clarity into this hotly-litigated space. To make matters worse, the DOJ’s letter is unlikely to stem the growing tide of website accessibility litigation. To the contrary, website-accessibility litigation will likely increase.
Given this, it is crucial that businesses proactively address the accessibility of their public-facing websites using the WCAG’s new 2.1 Standards. Many companies can help find and address existing accessibility issues as well as develop a plan to monitor ongoing compliance.
Justice Department failing disabled people and businesses, advocates and attorneys say
WUSA9.com
Advocates argue innovation is ignoring disabled Americans, denying their right to access the Internet, and leaving millions of people lost in the digital space.
Businesses can learn about making websites accessible for people with disabilities
Quad City Times
As more businesses in the past few years have faced lawsuits claiming their websites are not accessible for people with disabilities, leaders of Tag Communications in Davenport decided to make some changes.
For years, the Americans with Disabilities Act had been focused on physical barriers in brick-and-mortar facilities, requiring public places to make accommodations, such as building wheelchair ramps and elevators. But in the age of e-commerce, the ADA is requiring companies to make their websites fully accessible for disabled people, namely those who are visually-impaired.
Appalachian Wood Products sued for not hiring recovering drug addicts
woodworkingnetwork.com
Cabinet component supplier Appalachian Wood Products Inc. is being sued by the U.S. Equal Employment Opportunity Commission (EEOC) for allegedly subjecting job applicants to unlawful medical inquiries and refusing to hire qualified applicants based on their disability or medical treatment.