ADA
Ninth Circuit Issues Yet Another Opinion Imposing More Stringent Pleading Requirements In ADA Title III Lawsuits (SeyfarthShaw)
On August 17, 2011, the Ninth Circuit held, in Oliver v. Ralphs Grocery Company, et al., that plaintiffs in disability access lawsuits under Title III of the Americans with Disabilities Act ("ADA") must allege in their complaint all of the architectural barriers which form the basis for the ADA claim. A plaintiff cannot rely on an expert's report created later in discovery identifying such barriers, but must specifically plead each and every barrier in the complaint so as to afford the defendant fair notice and an opportunity to respond.
Oliver marks yet another decision from the Ninth Circuit imposing more stringent pleading requirements on plaintiffs in disability access lawsuits. The Ninth Circuit held earlier this year that a plaintiff must specifically allege that he or she personally encountered a barrier at a place of public accommodation and must further allege how his or her disability was affected by at least one of the barriers. Such allegations are necessary to satisfy the requirement for standing that a plaintiff have suffered an injury-in-fact.
DOJ looking into mental health programs (Houston Chronicle)
A Mississippi mental health official says the Department of Justice Department is looking into whether the state is providing appropriate care to mentally ill. "They don't think our state has made a sufficient effort to move into community-based services," Region 8 Executive Director Dave Van told The Clarion-Ledger. "They say we're institutionally heavy."
Mayor intent on improving handicapped accessibility (ABCLocal - Chicago)
A new mayor, a new administration, and new traditions are taking hold in City Hall. What does this mean for Chicago's residents with disabilities? For more than 20 years, Mayor Richard M. Daley's agenda included making Chicago the most accessible city in the world. Will Mayor Rahm Emanuel continue this commitment? "Mayor Emanuel is very supportive of the Mayor's Office for People with Disabilities and disability issues," said Karen Tamley, who has been commissioner of the Mayor's Office for People with Disabilities for six years.
ADA Employment
Employers faulted for no-fault attendance policies – complete article (Lexology)
Many employers have no-fault attendance policies that subject employees to discipline for too many absences, without considering the reason for the absence. Some employers enforce absence “caps” and terminate employment after a fixed duration of absence, regardless of the reason for the absence. Such policies violate the Americans with Disabilities Act, says the Equal Employment Opportunity Commission.
In June 2011, the EEOC held a public hearing on the issue of unpaid leave as a reasonable accommodation under the ADA. At the hearing, the EEOC stated that infl exible attendance policies violate the ADA because employers must consider whether additional time off would be a reasonable accommodation of an employee’s disability. Thus, for example, an employer may not simply terminate an employee with a disability for failing to return from FMLA leave but must fi rst have a dialogue with the employee to determine whether some additional time off would be reasonable and not an undue hardship on the employer. The EEOC also warned that use of third-party administrators to handle leave issues is a dangerous practice because the third party often does not understand the employer’s workforce and needs and cannot accurately engage in the individualized assessment required by the ADA. (For more details of the hearing, go to http://www.eeoc. gov/eeoc/meetings/6-8-11/index.cfm.)
The EEOC is also suing employers over no-fault attendance policies. The agency recently announced a $20 million settlement with Verizon Communications over its policy, the largest disability discrimination settlement in a single lawsuit in EEOC history. Under Verizon’s policy, employees were subject to discipline if they accumulated a certain number of “chargeable” absences. However, the policy did not exclude absences that were caused by a disability or consider whether some or all of the absences should be allowed as a reasonable accommodation of the disability. Earlier this summer the EEOC entered into two other multi-million dollar settlements also involving infl exible leave policies and the employer’s failure to enter into the interactive process at the end of the leave period. In short, no-fault attendance polices can be costly.
The EEOC suggested in its June hearing that it might issue new guidance on this issue or consolidate its existing guidance. Until then, employers may look to existing agency publications and judicial decisions, such as EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (10/17/02) and Taylor v. Pepsi-Cola, 196 F.3d 1106 (10th Cir. 1999).
Although no bright-line rules exist, helpful principles include the following:
- Unpaid time off can be a reasonable accommodation of a disability under the ADA.
- The ADA’s duty of reasonable accommodation may require more time off than the Family and Medical Leave Act provides.
- Before disciplining or discharging an employee for an absence due to a disability, the employer should engage in dialogue with the employee regarding the expected date of return to employment and then make an individualized assessment as to whether some additional amount of time off would be a reasonable accommodation of the disability.
- Leave of unspecified or indefinite duration is usually not required as an accommodation.
- Leave as an accommodation may be denied or terminated once it becomes “unreasonable” in duration.
Fair Housing Act
HUD Charges Iowa Landlord with Refusing to Allow and Assistance Animal
On August 19, 2011, HUD charged the owners/managers of a 4-unit apartment building in Trader City, Iowa for refusing to allow an assistance animal into the complex to assist a 7-year-old girl with cerebral palsy, The refusal worsened the girl's symptoms and eventually caused the family to have to move to a less desirable apartment.
HUD Charges Design and Construction Violations in 275-unit Salem, Oregon Apartment Complex
On August 23, 2011, HUD charged the owners, developers, contractor, and architect of Gateway Village Apartments in Salem, Oregon for designing and constructing its ground floor units and public-use areas in a manner that is inaccessible to persons with disabilities in violation of the Fair Housing Act. The case arose from a disability discrimination complaint filed by the Fair Housing Council of Oregon based on testing done at the property.
HUD Charges New York Co-Op with Discriminating against Tenant with Disabilities
On August 10, 2011, HUD charged a housing cooperative located in the Bronx, and two of its employees with violating the Fair Housing Act for denying a disabled man’s reasonable accommodation request. HUD brought this charge on behalf of the disabled tenant, claiming that co-op refused to allow the tenant to have a medically prescribed emotional support animal and that the cooperative’s security officers harassed the tenant because of the service animal.