ADA
Museum boosts access to exhibits
(ABC Local)
The Americans with Disabilities Act requires nonprofit entities -- including the arts, education, recreation and human services -- to be accessible for people with disabilities. Keeping thiis commitment is essential, and the Chicago Community Trust helps with a guide called "Renewing the Commitment." Even thought the ADA was implemented 20 years ago, there's still work to be done. The Museum of Science and Industry is one example of a nonprofit facility that has found creative solutions for extraordinary exhibits
Pitkin County drafts plan for disabled Segway use on trails
(Aspen Daily News)
The county open space and trails department has released a plan expanding access to sections of its trail system for power-driven devices, including some electric bicycles and Segway-type vehicles. The new management plan resulted from new Americans with Disabilities Act regulations issued in March by the U.S. Department of Justice. Those federal regulations sought to more clearly define a “wheelchair,” and to officially provide access to public areas on other electric vehicles for the disabled.
County reaches final settlement in ADA lawsuit
(The Northwest Florida Daily News)
Okaloosa County commissioners on Tuesday unanimously approved a final settlement with a man who filed a lawsuit in 2006 to force the Shalimar courthouse annex to comply with the Americans with Disabilities Act.
Milwaukee's Voucher Program Discriminates Based On Disabilities, ACLU Says
(Huffington Post)
Milwaukee's voucher system, which allows low-income students to attend private schools using tax dollars, discriminates based on disability, according to a complaint filed Tuesday by the American Civil Liberties Union, the ACLU of Wisconsin Foundation and Disability Rights Wisconsin.
Settlement Agreement: Wells Fargo & Company
(Department of Justice)
Wells Fargo & Company has reached a settlement with the government under the Americans with Disabilities Act (ADA) to resolve claims that the bank is not equally accessible for individuals with disabilities. Various ADA complaints were filed by individuals, who are deaf, hard of hearing or have speech disabilities. The complaint states that WFC stopped providing phone services using a telecommunications relay service to them. Instead, the individuals were asked to call a TTY/TDD line that asked them to leave a message, which went unanswered.
WFC argued some of their call centers stopped accepting calls made through relay services due to fraud concerns and denied violating the disabilities act. The company also addressed these customers’ concerns before the Justice Department investigation began. But, with the ongoing investigation, WFC worked cooperatively with the department and came to a conclusion addressing all ADA issues in its retail banking and financial services. WFC will pay up to $16 million to compensate individuals affected by certain violations of Title III of the ADA. The department will distribute these funds on the basis of claims.
ADA Employment
EEOC Obtains $600,000 Verdict Against AutoZone For Failure To Accommodate Disabled Employee
(EEOC)
A federal court jury in Peoria has returned a verdict of $600,000 against AutoZone, Inc. for failing to provide a reasonable accommodation to a disabled sales manager, the U.S. Equal Employment Opportunity Commission (EEOC) announced today. An additional claim for $115,000 in back pay will be decided by the presiding judge at a later date.
Randstad US Charged With Discrimination For Denying Job to Man with Asperger's
(Care2.com)
The U.S. Equal Employment Opportunity Commission has filed a lawsuit charging that the employment services and placement referral company Randstad US, LP, failed to hire Jason O'Dell because of his disability of Asperger's syndrome, an autism spectrum disorder. According to an EEOC press release about the suit:
Fighting Back against the EEOC
(Human Resource Executive Online)
Too many employers become so overwhelmed by the EEOC's "war chest" and endless capacity to litigate that they settle the case early, even when they believe they were not discriminating against employees. In this opinion piece, an attorney writes that the EEOC is increasingly distorting the laws that Congress entrusted it to enforce when it brings suit.
7th Circuit: Acrophobic Bridge Worker Protected by ADA
- complete article (SHRM)
The 7th U.S. Circuit Court of Appeals reversed summary judgment granted to an employer on an Americans with Disabilities Act (ADA) claim brought by a former employee who had a fear of heights. Darrel Miller worked for the Illinois Department of Transportation (IDOT). As a highway manager assigned to a bridge crew, Miller was responsible for a variety of tasks, many of which could be performed from the ground. Naturally, some of the bridge work required working at some height above the ground or water. Miller had occasional difficulty working from heights, particularly when he worked in an unsecured environment. Miller informed IDOT and the lead worker of his team that he had a fear of some heights and that there were a few tasks that he would not be able to do. IDOT informally accommodated Miller by allowing other members of his team to handle those tasks for him. It was common practice for the team to take advantage of each member’s abilities and accommodate each member’s limitations. For example, one worker was not required to mow the yard or rake debris due to his allergies.
Miller worked successfully without incident for almost five years. On one occasion, however, he suffered a panic attack when he attempted to change a bulb that would have required him to stand on a bridge beam. In response, IDOT placed Miller on leave and ordered him to submit to a fitness-for-duty examination. IDOT’s physician examiner diagnosed Miller with acrophobia and concluded that he was unfit to work. Contrary to this conclusion, Miller described his limitation as being unable to work at heights above 25 feet in an exposed, extreme position. IDOT, however, treated Miller as if his condition imposed much more extensive limits. Miller filed a grievance and a request for reasonable accommodation. Miller supported his grievance and request for accommodation with the independent evaluation of a psychiatrist who concluded that Miller could continue to perform the functions of his job if IDOT provided him with the same reasonable accommodations that it had in the past. Nevertheless, Miller’s request for accommodation was denied. Shortly thereafter, Miller was terminated for making a verbal statement against a female employee that IDOT perceived as a violent threat.
Miller filed a lawsuit under the ADA. He alleged that IDOT had discriminated against him by failing to provide an accommodation and terminating him. He also alleged that IDOT had illegally retaliated against him for requesting an accommodation. The district court granted summary judgment in favor of IDOT. Miller appealed.
The 7th Circuit noted that some work at heights in exposed positions is an essential function of the bridge crew as a whole. However, the court was not persuaded that any individual assigned to the bridge crew had to be able to perform each and every task of the entire bridge crew; the bridge crew worked as a team, and no one person was assigned permanently to any one task. The team accommodated the various skills, abilities and limitations of the individual team members by organizing itself according to those skills, abilities and limitations.
More particularly, a reasonable fact-finder would have to conclude that some members of the bridge crew had to be able to work at heights in exposed or extreme positions so that the bridge crew—as a unit—could do its job, just as some members of the crew had to be able to weld, ride in the snooper bucket, spray, mow and rake. That conclusion does not mean that the fact-finder would be required to conclude that each member of the bridge crew had to be able to do every task required of the entire team. In terms of the regulation, the evidence of actual experience of past and present incumbents in the job and similar jobs conflicts with the employer’s judgment about which functions are essential. On this record, a reasonable jury could find that working at heights in an exposed or extreme position was not an essential function for Miller as an individual member of the bridge crew.
Additionally, the court concluded that a reasonable jury could find that Miller’s request for accommodation—that other members of his team substitute for him when a task required working above 25 feet in an exposed or extreme position—was reasonable. The court noted that the term “reasonable accommodation” may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”
On the retaliation claim, the 7th Circuit held that a reasonable jury could find that Miller’s statement about the female employee was not a “threat” at all, or that even if IDOT properly construed it as such, its decision to terminate Miller was an overreaction to justify dismissal of a “difficult” employee who asserted his rights under the ADA. In addition, another employee who made a similar outburst was not terminated. The combination of the ambiguity of the asserted threat, the response to the other employee’s violent outburst, the hostility toward Miller’s request for accommodation and the timing provided sufficient evidence to permit a reasonable jury to infer pretext and retaliatory intent. As such, the 7th Circuit reversed summary judgment, concluding that there were genuine issues of material fact regarding Miller’s discrimination and retaliation claims. , 7th Cir., No. 09-3143 (May 10, 2011).
Professional Pointer:
An employer may not irrationally overreact to a perceived disability. Such conduct is illegal. The law requires that in response to a request for accommodation, an employer must rethink its preferred practices or established methods of operation. Employers must, at a minimum, consider possible modifications of jobs, processes or tasks to allow an employee with a disability to work, even where established practices or methods seem to be the most efficient or serve otherwise legitimate purposes in the workplace.
Leave Denials Often Violate ADA
- complete article (SHRM)
Too many employers assume erroneously that they can terminate an employee on leave as soon as Family and Medical Leave Act (FMLA) time off for a medical condition has expired, according to Jeffrey Braff, an attorney with Cozen O’Connor in Philadelphia. The denial of more leave at the end of FMLA leave might violate the Americans with Disabilities Act (ADA), he noted in an interview with SHRM Online. Denying leave in excess of an employer’s cap on leave also might violate the ADA, he noted.
Any employer fixed-period leave cap, whether in months or years, is subject to challenge as being inflexible and in violation of the ADA, Michael Soltis, an attorney with Jackson Lewis in Stamford, Conn., said. Even if an employer has a generous leave cap, such as one year, it is required under the ADA to consider whether additional leave for a definite period would be a reasonable accommodation, he noted.
Indefinite leave, by contrast, is not required. Robin Shea, an attorney with Constangy, Brooks & Smith in Winston-Salem, N.C., noted that the ADA would not require an employer to grant indefinite leave where an employee or his or her physician informs the employer that the employee will never be able to return to work. But the ADA starts with a sympathetic plaintiff, so employers have to show that they really bent over backwards to reasonably accommodate, Braff commented. Employers that retain leave caps should include language that the caps will be enforced only where allowed by law, noted Tim Bland, an attorney in Ford & Harrison’s Memphis, Tenn., office. He said, though, that leave caps can be helpful under some laws, such as some states’ workers’ compensation laws.
EEOC’s Stance
The Equal Employment Opportunity Commission (EEOC) has taken the position that an employer can never terminate an employee based on the length of leave taken by an employee because of a disability unless extending the leave would be an undue hardship, Shea said. But she added that “the courts do not take this hard a line, however.” The courts generally uphold terminations based on extended leaves of absence (six to 12 months, or more) if the employer made reasonable efforts to accommodate the worker, she remarked.
Just because an employer has a generous leave cap policy doesn’t mean that the employer has to wait until the entire period under the leave cap has run to terminate an employee if leave is indefinite before then, Soltis said. But a generous leave cap might make it more difficult to argue that providing more leave was an undue hardship, he added. A downside of leave caps is that they might result in employers overlooking other reasonable accommodations that could get the employee back to work much sooner, cautioned Jennifer Redmond, an attorney with Sheppard Mullin in San Francisco. She recommended entering the reasonable accommodation interactive process with employees as soon as FMLA leave runs to identify possible return-to-work options, such as part-time work, and to send the message that the goal is to get the person back to work. But she emphasized that the amount of leave an employer grants to an employee covered by the ADA must be determined on a case-by-case basis. And that may mean granting leave beyond the hard stop suggested by an employer’s leave cap, even if the leave cap is generous, Soltis said, remarking that “a hard stop for a leave without additional provision for accommodation is at risk for EEOC’s attack.”
Fired Because of Her Disability?
(HR.BLR.com)
A Tennessee worker is blind in one eye and has cerebral palsy. She nevertheless worked successfully in clerical and administrative functions for a state agency for at least 9 years before she accepted a position in a different agency. She requested and was given several accommodations, but they didn’t help enough. Citing poor performance, the agency fired her before her 6-month probationary period was over. She sued.