Animals as a public accommodation.
A growing public trend is the presence of service animals in places like stores, restaurants, schools, airports and job sites. The basis for this trend is not a new one. It comes from Title III of the Americans with Disabilities Act (ADA) which guarantees people with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” This guarantee from the ADA allows for the use of service animals to help people with disabilities accomplish these public accommodations.
The difference between Service Animals, Emotional Support Animals, and Therapy Animals.
Some employers react negatively to the idea of allowing service animals in the workplace. This might be due to a misunderstanding of the difference between service animals, emotional support animals, and therapy animals. These are entirely different categories of animals.
Service animals are not considered to be pets. These are trained animals that must qualify in two categories to be protected as service animals under the ADA: Continue reading Going Wild About Service Animals at Work
Is it necessary that your company website offer accessibility for people with disabilities?
In June of 2017, Florida federal District Court Judge Robert Scola found Winn-Dixie liable under The Americans with Disabilities ACT (ADA) Title III regarding Public Accommodations and Commercial Facilities guilty of not making accommodations to their website. The court decided the additional cost of upgrading the website was insignificant and not an undue burden when compared to the cost Winn-Dixie spent on creating the website itself.
It has become a growing trend that private parties are filing federal law suits for unsubstantiated violations. In 2017, there was only 814 federal lawsuits filed and according to UsableNet over 2,200 cases where filed in 2018; that was an increase of 181% from the prior year.
In a letter from Congress to the Attorney General, “The absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these complaints have to meet. In fact, in most cases these suits are filed for the purpose of reaching a financial settlement and little or nothing to improve website accessibility.” Congress address the fact that no defined guidance has been establish and law suits of this matter will continue to increase. Continue reading Does Your Company Website Really Have To Be ADA Compliant?
Many employers and HR professionals view disabled employees as being immune to disciplinary actions when they have attendance violations. This view is often based on past experience and the many negative “war stories,” that are often shared when employers are sued for disability discrimination – even after they believe that the were doing everything correctly. The stress of these stories and experiences often causes business leaders to become overly cautious and implement practices where disabled employees are never terminated and never disciplined. While that might suit some situations, recent appellate court decisions have shown that such over-corrections might not be necessary in every case.
There are three recent decisions that come from the Court Appeals that point to the same conclusion – employers can consider attendance as essential to the function of just about and job and in some cases can terminate disabled employees for attendance related issues. The caveat of doing such terminations is that the attendance issues must not be for reasons that are protected leave under laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and any state laws of this nature, including local sick leave laws. When unapproved absences are not related to a protected leave, these decisions show that courts have leaned in favor of employers being able to terminate disabled employees. Continue reading Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues
In a recent case (Hostettler v. College of Wooster), the US Sixth Circuit Court of Appeals held that a requirement that an employee work full time, without a duties-based reason for the requirement.
In this case, the plaintiff was an HR Generalist at College of Wooster. The plaintiff had recently had a baby and, when she was released to return to work, her doctor provided a restriction that the plaintiff could only work part-time because the plaintiff was suffering from postpartum depression and separation anxiety.
Initially, the employer granted the requested accommodation – allowing the employee to work 5 half days per week. The plaintiff worked that modified schedule for one month and then turned in a note from her doctor stating that she would need to continue working the modified schedule for an additional two months. The next day, the employee was terminated. The reason given – the department could not function properly because the plaintiff was not working full-time and working a full-time schedule was an essential function of the HR Generalist position. The plaintiff filed a lawsuit claiming that her termination was discriminatory. Continue reading NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function
In a recently decided federal case ( EEOC v. BSNF Railway Company), the U.S. Court of Appeals for the Ninth Circuit held that employers are required to pay for an employer-required post-offer medical examination.
In this case, the company made an offer of employment to an individual and conditioned the offer of employment on the candidate successfully completing a medical examination. This candidate had a history of back issues and was required to obtain an MRI as a part of the examination (which the candidate was going to have to pay for out-of-pocket). The candidate told the company that he could not afford to pay for the MRI and the company rescinded the job offer.
The Court confirmed that ADA permits follow-up medical testing where such testing is “medically related to previously-obtained medical information.” However, the ADA does not specify who should pay for the additional testing. The Court determined that requiring the candidate to assume the costs of the additional testing could go against the anti-discrimination provisions and the policy purposes of the ADA, by forcing them “to face costly barriers to employment.” As a result, the Court found that employers must bear the costs of any such testing.
In a recent case (Sessoms v. Trustees of the University of Pennsylvania), the Third Circuit Court of Appeals held that while the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to disabled employees, employers are not required to provide the accommodation requested by the employee. Instead, after engaging in the interactive process, employers may choose among reasonable accommodations as long as the chosen accommodation is effective.
In this case, an employee had been out on a medical leave of absence relating to her disability. Prior to returning to work, the employee engaged in the interactive process with her employer (the university) and requested that she be provided a part-time schedule and that she be transferred to a different supervisor in a “lower-stress department/office” as a reasonable accommodation for her disability.
The university agreed to provide the employee with a part-time schedule, but the university did not grant the employee’s request to change supervisors. The university offered the employee several different accommodations (all of which involved reporting to her current supervisor), but the employee refused to accept any accommodation that involved her reporting to her current supervisor. Ultimately, after making several attempts to get the employee to accept the offered accommodation, the employee was terminated. The employee later sued the university for disability discrimination. Continue reading NEW CASE: Court Reminds Employers That Reasonable Accommodation ≠ Employee’s Demand Where There Are Other Reasonable Alternatives
The California Department of Fair Employment and Housing recently published a model Equal Opportunity Policy.
Under California law, employers are required to “take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.” A part of this obligation includes a requirement that employers develop a harassment, discrimination, and retaliation prevention policy that: Continue reading NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy
A Florida jury recently awarded a former Costco employee $775,000 for her claim that the company failed to reasonably accommodate her disability.
The former employee is deaf and she claimed that Costco failed to provide sufficient interpreting services for her at work — specifically during larger group meetings (held via conference call). While Costco had provided this employee with a video phone, the employee had complained that the video phone did not work properly during larger meetings where there are multiple conversations occurring at the same time. The employee asked Costco to provide a live interpreter for the large meetings and, while Costco agreed to provide the interpreter, one was never actually provided.
Continue reading Failure to provide reasonable accommodation to deaf employee costs Costco $775,000
Associated Fresh Market, Inc. has agreed to pay $832,500 to settle a group of disability discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC).
The charges filed against the company by several employees alleged that Associated Fresh Market had a pattern and practice of denying reasonable accommodations to disabled employees.
The EEOC investigated these charges and found that the company had a practice of denying reasonable accommodations under the ADA. Specifically, the company required employees to have no restrictions or be 100% ready to return to work before an employee was reinstated following a medical leave of absence. The company also routinely denied leave as a reasonable accommodation. Finally, the company frequently refused to reassign employees to a vacant position as a reasonable accommodation.
Continue reading Utah Employer Learns A $832,500 Lesson About Disability Discrimination
On June 5th, Nevada Restaurant Services, a large Las Vegas-based gaming company that operates slot machines, taverns, and casinos, agreed to pay $3.5 million to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
In the suit, the EEOC alleged that by requiring workers with disabilities or medical conditions to be “100% healed” before returning to work the Las Vegas gaming company violated the Americans with Disabilities Act (ADA). The EEOC argued that this behavior doesn’t adhere to the ADA’s interactive process, let alone its reasonable accommodation requirement.
Furthermore, the EEOC showed that Nevada Restaurant Services went as far as firing employees because it viewed them as disabled or, in some cases, were simply associated with someone with a disability.
The EEOC’s Fight Moves Onward
Continue reading The EEOC Claims Another Victory in Fight for Disabled Workers