ADA
City of LA to review emergency plan for disabled
(Sacramento Bee Los Angeles)
Los Angeles will have to hire an independent expert to review and revise the city's emergency plan to make sure it accounts for the safety of disabled people, a judge said in an order issued Wednesday. Judge Consuelo B. Marshall is giving the city three years to revise all components of the city's emergency plans in the order. At the end of the three years, the independent experts must submit a report detailing the ways they've improved safety for the disabled.
US attorney: NYC taxicabs violate disabilities act
(Wall Street Journal)
The U.S. attorney's office in Manhattan says the lack of wheel-chair-accessible taxis in New York City violates the Americans With Disabilities Act. It urged a federal judge to force the city to address the problem quickly.
Harkins to equip cinemas for deaf, blind, to settle Arizona suite
ý (East Valley Tribune)
The state’s largest movie chain will outfit virtually off its theaters with equipment designed to help those with hearing and sight problems, including those who are totally deaf or blind. In a consent decree filed late Thursday in U.S. District Court, Michael Bowers, president of Harkins Theaters, agreed to install closed caption and descriptive video systems in half of its 25 theaters it operates in Arizona by this coming June 15. And the balance of its theaters will have the equipment by Jan 15, 2013.
Calif. County Settles Disabilities Access Lawsuit
(ClaimsJournal.com)
San Bernardino County has reached a $770,000 settlement with four plaintiffs and attorneys who filed a federal lawsuit claiming its 13 courthouses were inaccessible to disabled people. A five-year rehabilitation schedule for each courthouse will provide access improvements to public areas, including parking, exits, witness stands, jury boxes and restrooms. The cost of those improvements hasn’t been determined.
Resort sues architects over 3000 doors
ý(UPI.com)
The Mandalay Bay Resort and Casino in Las Vegas is suing the building's architects, alleging door design flaws cost it $20 million, court papers show. Specifically, the resort says it had to replace 3,000 doors that were too narrow to comply with the Americans with Disabilities Act, a federal statute, the Las Vegas Sun reported Wednesday.
State Attorney General joins discrimination lawsuit against American Bar Association
(Oakland Press)
State Attorney General Bill Schuette has filed a brief Thursday on behalf of Angelo Binno, a blind man who has sued the American Bar Association for discrimination. Binno of West Bloomfield and his attorney, Richard Bernstein, who also is blind, contends in the U.S. District Court suit that requiring a person who is blind to take the Law School Admission Test places him or her at a competitive disadvantage to get into law school because it requires them to draw diagrams or pictures on one-third of the exam. Comprehending diagrams or drawing pictures is not within the realm of ability of someone who is blind and there is no “reasonable accommodation” under the Americans with Disabilities Act that can overcome this situation.
ADA Employment
Too much talk about employee’s medical questionnaire leads to ADA claim
– complete article (Lexology)
A federal court in Maine determined that employees may bring a claim against their employer under the Americans with Disabilities Act (ADA) for disclosing medical records, even if the information was disclosed only within the company. In February 2008, Bath Iron Works Corporation (BIW) offered a position to Guillermo Blanco. Blanco began his employment in March 2008, after completing a post-offer medical screening, which included the completion of a medical questionnaire. In September 2008, Blanco’s supervisor counseled him about his poor work performance. Blanco informed the supervisor that his performance problems were due to attention deficit and hyperactivity disorder (ADHD). Blanco subsequently provided a doctor’s note confirming his ADHD and requested an accommodation.
BIW sent Blanco to the company’s doctor. After examining Blanco and reviewing his responses to the medical questionnaire, the doctor determined that Blanco had lied on the questionnaire. The doctor informed BIW’s labor relations department of the conclusion, and the company discharged Blanco for failing to disclose his ADHD on the questionnaire. Blanco sued BIW, claiming that the company doctor’s discussion of Blanco’s medical screening questionnaire with the labor relations department was a violation of an ADA confidentiality provision. Under the ADA, an employer must keep strictly confidential all medication information, keeping such information in a separate medical file with very limited access. IW moved to dismiss Blanco’s claim. The U.S. District Court for the District of Maine denied BIW’s motion to dismiss, finding that Blanco had sufficiently pled a violation of the ADA. The court noted that “the ADA mandates that the employer keep strictly confidential the results of a post-job-offer [medical] examination” with only limited exceptions to the strict confidentiality requirement. Supervisors and managers can only be informed regarding necessary restrictions on the duties of the employee and necessary accommodations. In this case, Blanco alleged that the doctor’s discussion with the labor relations department went far beyond any necessary restrictions or accommodations.
Importantly, this ruling was rendered on a motion to dismiss. When ruling on a motion to the dismiss, the court must accept as true all allegations in the plaintiff’s complaint. According to the facts alleged by Blanco in his complaint, the company doctor’s disclosure to BIW was not to inform them of necessary restrictions or accommodations; rather, the doctor disclosed the information because she concluded Blanco had lied on the questionnaire. Although BIW may yet prevail in this case, the case provides an important lesson for employers. Many employers do not take sufficient care to keep employees’ medical information strictly confidential. For example, supervisors are often provided the specific medical reason for an employee’s restriction or accommodation when they do not need to know that diagnosis. Similarly, a doctor’s note excusing an employee’s absence and containing medical information may be kept in the employee’s personnel file; such notes should be kept in the separate medical file. Employers should tighten their controls over employees’ medical information, and ensure that such information is not disseminated except where absolutely necessary.
EEOC Continues To Target Inflexible Leaves-of-Absence, Attendance Policies
(Duane Morris)
Over the last few years, the EEOC has challenged employer leaves of absence and attendance policies. The EEOC is critical of employer policies providing for inflexible, fixed leave periods as well as policies requiring an employee to be able to return to work at full capacity after a leave of absence. The EEOC's view that such policies violate the Americans With Disabilities Act has resulted in significant settlements, with large financial liabilities for employers.
A big problem: obesity discrimination in the workplace
- complete article (Lexology)
Thirty-four percent of adults in the United States presently qualify as obese under standards adopted by the Center for Disease Control. Morbid obesity (defined as having a body weight more than 100% over the norm) and obesity caused by a psychological disorder are "disabilities" as defined by the Americans With Disabilities Act (“ADA”), according to the EEOC. Lawsuits involving morbid obesity are on the rise and come in many shapes and sizes. The most common involves a “substantially limiting” health condition such as diabetes, heart disease, and hypertension. Others involve employers who assume an obese employee would pose a direct threat to the health and safety of him or herself or other employees if he or she were to carry out the essential functions of the job.
On September 27, 2011, the EEOC filed suit against BAE Systems alleging that the company violated the ADA by firing a morbidly obese employee at one of its manufacturing plants. The employee, who weighed more than 600 pounds, sorted parts on a raised platform, drove a forklift, and performed deskwork. In its complaint, the EEOC alleged that BAE terminated the long-term employee, after telling him that it “had reached the conclusion that he could no longer perform his job duties because of his weight.” During the EEOC’s investigation, the company stated that the employee had difficulty bending, stooping, and kneeling. It also contended that the employee had difficulty walking from the parking lot to the plant, from which it concluded that he had trouble walking around the facility. BAE denied the employee's request to be moved to another position. It also allegedly made no attempt to discuss reasonable accommodations.
At present, there are no federal laws designating weight as a “protected characteristic,” like race, sex, and religion under Title VII of the Civil Rights Act of 1991, or prohibiting against discrimination in employment on the basis of obesity. Further, with the exception of Michigan and a few local jurisdictions (e.g., San Francisco), state and local laws likewise do not afford protection against obesity discrimination. The EEOC’s suit against BAE, however, highlights an avenue that obese individuals may pursue for protection - the ADA. Under the ADA, as revised by the ADA Amendments Act of 2008, an individual is considered disabled if he or she has a disability, has a record of a disability, or is regarded as disabled, and that disability “substantially limits one or more of [the individual’s] major life activities.”
Proactive employers can adapt their practices and policies to address this developing issue. In addition to combating stereotypes about obese workers, employers should recognize obesity as a very real, potential disability that may require reasonable accommodation through the “interactive process” called for by the ADA. Employers may also consider other measures that address the root of obesity, such as implementing voluntary, private weight reduction programs or developing a healthier workplace culture, for example, by stocking vending machines with water and low-fat snacks, offering fitness fairs and health screenings, and partnering with local athletic clubs to offer employee discounts.
Comfort Suites To Pay $132,500 For Disability Discrimination Against Clerk With Autism
(EEOC)
Tarsadia Hotels, doing business as Comfort Suites, a hotel developer and operator in California, will pay $132,500 and implement substantial changes to settle a disability discrimination lawsuit that the U.S. Equal Employment Opportunity Commission (EEOC) filed on behalf of hotel clerk with autism.
No free disability pass for insubordination
– complete article (ýBusiness Management Daily)
Employers have the right to expect everyone to behave appropriately at work. That includes employees with mental disabilities who may have trouble with communication and perception.
What that means:
You are free to punish inappropriate behavior regardless of its cause.
Recent case:
Peter Weesner worked for U.S. Bank in the computer support division. He suffers from paranoid schizophrenia, but claims that medication controls his condition. Weesner explained to his supervisors that his condition makes him perceive some comments as so stressful that he shuts down and blocks out the conversation to return to “a better state of mind.” After a heated conversation with a supervisor, he asked HR to intervene. Weesner wondered whether he might be allowed to “take the conversation to HR” as a reasonable ADA accommodation when communications problems arose. HR agreed to give it a try. Then Weesner began regularly dragging his supervisors to the HR office. At one point, he accused an HR rep of being insensitive and biased. During a meeting to discuss his allegations, HR had two employees present. They later testified that they felt threatened by Weesner’s behavior, which included finger-pointing. Weesner was terminated for insubordination during the meeting. He then sued, alleging failure to accommodate. The court dismissed his case. It reasoned that the accommodation Weesner wanted—essentially unfettered access to HR whenever he wanted—was unreasonable. (Weesner v. U.S. Bank, No. 10-2164, DC MN, 2011)
Final note:
The result might have been different if Weesner’s behavior had been truly involuntary. For example, someone with a mental disorder characterized by facial tics or uncontrollable outbursts might be entitled to more leeway (sometimes the case for employees with Tourette syndrome).
Employer did not fail to make reasonable accommodation when it denied a “preferable” (but not required) daytime shift; employee’s retirement was responsible for breakdown of interactive process
– complete article (Lexology)
The Fifth Circuit Court of Appeals ruled that the Americans with Disabilities Act does not require an employer to give an employee a daytime shift when such a shift is deemed by his doctors to be "preferable," but not required. Moreover, the Court held that - by retiring only two weeks after the employer denied his request for daytime work - the employee was responsible for the breakdown of the interactive process, and therefore, the employer did not fail to make reasonable accommodation for the employee. In Griffin v. United Parcel Svs., Inc., No. 10-30854 (5th Cir. Oct. 19, 2011), an insulin-dependent Type II-diabetic employee - after 28 years of service - took a medical leave of absence and received outpatient counseling for recurring numbness and pain. When he returned to work, his physicians restricted him to part-time work for three weeks, a restriction that was observed by UPS. The employee was then assigned to a full-time job on the night shift, the company explaining that his previous full-time position was no longer available. Griffin asked for a schedule on the day shift as an accommodation under the ADA. The medical documentation in support of this request, however, did not state that daytime work was a requirement, just that it was "preferable." Griffin was informed that his request for day shift work was not supported by his documentation. Two weeks later, the employee tendered his retirement papers.
Both the district court and the Court of Appeals ruled the employer was entitled to prevail on Griffin's ADA claims, as a matter of law. Much of the appellate court decision in Griffin is devoted to the question of whether the diabetic employee was "disabled" under the ADA before the 2008 Amendments (he was not). However, most importantly, the Fifth Circuit decided that, even if he had been "disabled," the employer's denial of his daytime work request was not a failure to accommodate, based on the medical documentation. His doctors' information did not indicate that day work was required for the management of his diabetes. Further, even if the initial denial had been a failure to accommodate, Griffin's retirement only two weeks after working on the night shift was found to have caused the breakdown of the interactive process between the parties. "Where an employee terminates the interactive process by voluntarily retiring, it is difficult to discern what measures may have been taken had accommodation discussions continued," reasoned the Court.
Fair Housing Act
Student files lawsuit after UNK denies dog
(Kearney Hub)
The University of Nebraska at Kearney is accused of violating the Fair Housing Act by refusing to allow a student to have a therapy dog in her campus housing. The U.S. Department of Housing and Urban Development claims the university and five employees violated the law and illegally inquired into the nature and severity of the student’s disability, according to a press release from HUD. “UNK is denying the allegations, and we’ll be pursuing the charges in federal court,” said Vice Chancellor of University Relations Curt Carlson.
Apartments Doors must open to service animals
(Chicago Tribune)
Condominiums that don't allow pets must find workable solutions for residents who require medically-prescribed animals. If not, the association can end up in the doghouse — and worse.