News From the Federal Agencies

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U.S. Equal Employment Opportunity Commission (EEOC)

Jury Awards $5.2 Million Against Walmart in EEOC Disability Discrimination Case

A jury determined that Walmart violated federal law when it refused to accommodate the disabilities of a longtime employee, and awarded $5.2 million in damages, the U.S. Equal Employment Opportunity Commission (EEOC) announced. According to the EEOC’s lawsuit, an employee, who has a developmental disability and is deaf and visually impaired, worked as a cart pusher in the Beloit, Wis., Walmart for 16 years before a new manager started at the store. In his first month, the new store manager suspended the employee and forced him to resubmit medical paperwork in order to keep his reasonable accommodations.

Kaiser Foundation Health Plan of Georgia Sued by EEOC for Disability Discrimination

Kaiser Foundation Health Plan of Georgia, Inc., a managed health care provider that is part of the Oakland, Calif.-based Kaiser Permanente organization, unlawfully discriminated against an employee when it refused to accommodate her disabilities. According to the EEOC’s suit, Specialty Appointment Coordinator Sharion Murphy’s disabilities made it traumatic for her to enter revolving doors, so she requested the reasonable accommodation of using non-revolving doors to access her workplace. Kaiser violated federal law when it refused to allow Murphy to use the available non-revolving doors and forced her to use the revolving doors, the EEOC said.

Big Lots Stores to Pay $100,000 to Settle EEOC Disability Discrimination Suit

National retailer Big Lots Stores, Inc., will pay $100,000 and furnish significant equitable relief to settle a disability discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. In its lawsuit, the EEOC charged that a retail worker with hearing and speech disabilities was subjected to harassment by her co-workers at Big Lots’ Elkins, WV, store.

Colorado Excavating to Pay $42,500 to Settle EEOC Disability Discrimination Suit

Gollnick Construction, Inc., which does business as Colorado Excavating, will pay $42,500 and furnish other relief to settle a disability discrimination suit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. The EEOC’s suit alleged Colorado Excavating fired office assistant Dora Marquez just four days after she suffered a seizure at work.

Crossmark to Pay $2.65 Million to Settle Disability Lawsuit

CROSSMARK, Inc., a Plano, Texas-based international sales and marketing company that provides food demonstrators to major American retailers and warehouse stores, will pay $2.65 million and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. The EEOC filed suit in 2018 alleging CROSSMARK allowed employees who prepared and served food samples to shoppers to sit on stools for no more than ten minutes every two hours, regardless of their medical conditions or restrictions.

EEOC and Lifewell Living Center, LLC Conciliate Disability Charge

The U.S. Equal Employment Opportunity Commission (EEOC) and LifeWell Living Center, LLC have reached a voluntary conciliation agreement to resolve allegations of disability discrim¬ination raised by a former employee, the federal agency said. Following an investigation by the Albuquerque EEOC office, the EEOC found it was probable that The Legacy at Santa Fe violated the Americans with Disabilities Act (ADA) by failing to accommodate the Complainant’s requests for a reasonable accommodation and then terminated her employment because she requested a reasonable accommodation.

G&A Partners Sued by EEOC for Disability Discrimination

G&A OutSourcing, Inc. doing business as G&A Partners, a Houston-based professional employer organization that provides human resources services, violated federal law by firing a new employee the day after she disclosed that she had mental health impairments, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. The EEOC’s lawsuit charges that on the first day of her employment, the employee disclosed to her supervisor that she had major depressive disorder (MDD) and attention deficit hyperactivity disorder (ADHD). The following morning, the employee was terminated because of those conditions, the EEOC says.

Fourteen Foods, LLC D/B/A Dairy Queen Brazier Sued by EEOC for Disability Discrimination

Fourteen Foods, LLC d/b/a Dairy Queen Brazier, a limited liability company operating a Dairy Queen Brazier franchise in Savannah, TN, violated federal law by failing to provide a hearing-impaired crew member applicant a reasonable accommodation and denying him employment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. EEOC alleged that the applicant had worked for a predecessor company at the same location for approximately two years. After new ownership took over, he applied for employment. During the interview process, a company official told the applicant that he must wear a hat or a visor. When the applicant said he could not do so because he wears a cochlear implant, the company required that he produce a medical statement from his doctor and a statement from the health department. Although the applicant obtained the necessary medical information from his doctor and provided information from the local health department, the company official would not accept the information and refused to call the health department to confirm the applicant’s information. The company destroyed his application and refused to hire him.

U.S. Department of Justice (DOJ)

U.S. Attorney’s Office Reaches Agreement with William Beaumont Hospital to Resolve ADA Investigation Regarding Effective Communication

The U.S. Attorney’s Office for the Eastern District of Michigan has reached an agreement with William Beaumont Hospital, a component of Beaumont Health — the largest health care system in Michigan, to resolve allegations that it violated the Americans with Disabilities Act when it failed to provide effective communication for individuals who are deaf or hard of hearing, U.S. Attorney Matthew Schneider announced.

The agreement resolves complaints filed with the U.S. Attorney’s Office that alleged that William Beaumont Hospital failed to provide sign language interpreters to deaf patients despite their repeated requests to obtain an interpreter for complex medical appointments and procedures. Because of the hospital’s failure to provide sign language interpreter services, deaf individuals were denied the benefit of effective communication with hospital staff, the opportunity to effectively participate in medical treatment decisions, and the full benefit of health care services provided by the hospital.

Justice Department Settles with Public Accommodations to Protect the Rights of Veterans Who Use Service Dogs | OPA | Department of Justice

As we mark Veterans Day 2019, the Justice Department announced two settlement agreements under the Americans with Disabilities Act (ADA) to protect and advance equal access for veterans with disabilities who use service dogs. One agreement is with Deerfield Inn & Suites, in Gadsden, Alabama. The second agreement is with the Landmark Hotel Group in Virginia Beach, Virginia, which manages the Holiday Inn Express in Hampton, Virginia. These matters were investigated and resolved in furtherance of the Department’s commitment to ensuring that our veterans enjoy equal access to public accommodations, such as restaurants, hotels, and shops.

Settlement Agreement between the United States and the Landmark Hotel
Settlement Agreement between the United States and Deerfield Inn and Suites

Henrico Police Athletic League Agrees to Settle ADA Complaint

The Henrico Police Athletic League, (Henrico PAL), which is a chapter of the National Police Athletic/Activities Leagues, Inc., has agreed to pay $5,000 to one child, provide tuition-free enrollment in its summer camp program to a second child, and take remedial action to resolve two complaints that Henrico PAL failed to modify its policies, practices, and procedures to allow children with diabetes to attend its programs.

The allegations involved two children with Type I diabetes. When Henrico PAL was informed that the children had Type I diabetes and would need help with blood glucose monitoring, insulin administration, and other diabetes care tasks, it allegedly informed one parent that her child could no longer attend its after school program and informed another parent that her child could not attend its summer camp program.

The Docket

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Extreme Obesity Alone Is Not A Disability

December 2 2019

Dean R. Dietrich, Marquette Law School Graduate 1977, is a Shareholder with Dietrich VanderWaal, S.C. in Wausau, Wisconsin, where he has practiced in the areas of employment, labor relations. school law, ethics and professional responsibility for more than 40 years.

The 7th Circuit Court of Appeals recently ruled that extreme obesity, by itself and alone, does not constitute a disability under the Americans With Disabilities Act. Employers must be careful about perceiving an individual who is extremely obese from being considered impaired or in some way unable to perform his/her duties.

We have finally received a decision about obesity from the 7th Circuit Court of Appeals which governs employers in the state of Wisconsin. In this decision (Richardson v. Chicago Transit Authority, No. 17-3508 & 18-2199) (7th Cir. June 12, 2019)), the federal Court of Appeals held that extreme obesity, by itself and alone, does not constitute a disability under the Americans with Disabilities Act. We do not have a clear decision from the Equal Rights Division on this topic, so hopefully the ERD will follow the same reasoning as the Court of Appeals.*1 This is important because Wisconsin is high on the list of states with a large population of obese residents; 32 percent of Wisconsin residents qualify as obese.

The decision holds that an individual suffering from extreme obesity, meaning significantly overweight for his/her height, does not constitute a disability for which ADA protections must be provided. Employers must be careful, however, because there are two circumstances where the decision could be different: (1) instances where the obesity is the consequence of a physiological disorder or impairment, or (2) situations where the employer perceives the employee to be disabled because of his/her health condition being that of extreme obesity. Under either of these scenarios, the employee may be afforded protection from discrimination.

In another recent 7th Circuit Court of Appeals decision, the Court held that an employer did not violate the Americans with Disabilities Act when it had concerns about a future impairment that could be experienced by a candidate suffering from obesity. Shell v. Burlington N. Santa Fe Ry. Co., No. 19-1030 (7th Cir. Oct. 29, 2019) The Court held that the employer did not discriminate when it refused to consider an applicant suffering from extreme obesity for a safety-sensitive position that included the operation of heavy equipment. The Court held that the employer did not regard the candidate as disabled because the candidate did not “have” an impairment at the time although concern was expressed about a future impairment.

Other federal and state Supreme Courts have looked at this issue and provided different guidance. For example, the Court of Appeals for the 9th Circuit in Valtierra v. Medtronic, Inc (926 F. 3rd 881, 2019) failed to reach a conclusion whether obesity (standing alone) is an actionable “impairment” under the Americans with Disabilities Act. The 9th Circuit Court of Appeals ruled similarly to the 7th Circuit by holding that obesity cannot constitute a disability unless the obesity is caused by an underlying physiological condition. The 9th Circuit Court of Appeals found that the plaintiff had not shown a causal relationship between his obesity and his termination from employment.

On the opposite side of the spectrum, the Supreme Court for the State of Washington held that obesity is always an impairment under the Washington Law Against Discrimination and did not require a showing that the obesity is related to some other medical condition. Casey Taylor v. Burlington Northern Santa Fe Railway Company (2019 WL 3023161, Wash., July 11, 2019). The Washington State Supreme Court did not define obesity but relied upon a definition of disability. Disability under the Washington Law is defined as the presence of a sensory, mental, or physical impairment regardless whether it limits life activities that either is medically recognizable or diagnosable or exists as a record or history or is perceived to exist whether in fact it exists in actuality. The Court held that obesity is always an impairment because obesity is both a condition and a disorder affecting various bodily systems. The Court did distinguish situations where simply being overweight would not constitute a disability as compared to situations where an individual would be medically classified as suffering from obesity. The Court relied upon a 2013 pronouncement by the American Medical Association that defined obesity as a medical condition.

Employers need to be very careful about perceiving an individual who is extremely obese from being considered impaired or in some way unable to perform his/her duties. While the employer, under the recent 7th Circuit opinion, would appear to have the right to determine that the employee cannot perform the regular duties of his/her position, there is always the concern that the employer is thereby perceiving the employee to be disabled. In order to avoid that perception, the employer must make a reasonable and fact-based analysis of the ability of the employee to perform his/her regular duties even with the challenges of an extreme weight condition.

*1 The LIRC has held in Elmhurst v. School District of Neillsville (ERD Case No. CR 200500684)Plizka v. A.O. Smith (DILHR Comm., 08/19/75).”

Question

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Q:Does the Americans with Disabilities Act (ADA) prohibit harassment based on a disability?

A. Yes, it does, according to a recent decision by a federal appeals court in Illinois, Ford v. Marion County (IL) Sheriff’s Office

Court Says Disability-Based Harassment Is Unlawful Under ADA But Finds Plaintiff’s Evidence Lacking

Jake Rubinstein

Cozen O’Connor

Although we would like to believe that we live in a more enlightened era, disability rights activists will tell you that the repugnant practice of mocking people with disabilities persists, and not just among schoolyard bullies. But does the law prohibit such behavior, especially if it occurs in the workplace? Or, to ask the question another way, does the Americans with Disabilities Act (ADA) prohibit harassment based on a disability?

Yes, it does, according to a recent decision by a federal appeals court in Illinois, Ford v. Marion County (IL) Sheriff’s Office, No. 18-3217 (7th Cir. 2019).

The plaintiff, Brigid Ford, was a deputy sheriff until she suffered a serious hand injury during an on-duty car crash. After allowing plaintiff to work as a deputy in a light duty capacity for about a year, the Sheriff’s Office told her she would have to transfer to a permanent position suitable to her physical limitations or be terminated. She accepted a position as a civilian jail clerk but later sued the Sheriff’s Office, alleging, among other things, that co-workers harassed her because she was disabled.

At trial, to support the harassment allegation, the plaintiff pointed to three years of clashes with co-workers at the county jail. The plaintiff claimed that one co-worker, CL, behaved like an unhelpful, insensitive bully towards her, mocking her workstation accommodations, adjusting her chair into uncomfortable positions, and disrupting work with loud conversations. The plaintiff claims that another co-worker, EW, left work early and improperly took documents home. After the plaintiff made complaints about CL and EW, the Sheriff’s Office transferred both of them away from the office where the plaintiff worked. Another co-worker, VH, was then transferred into the office. The plaintiff immediately began to have conflicts with VH too, and following an investigation, the Sheriff’s Office transferred VH as well.

The trial court granted pre-trial summary judgment to the Sheriff’s Office on some claims and others were tried to a jury, which found for the Sheriff’s Office and against the plaintiff. The plaintiff appealed.

Before turning to the merits of the plaintiff’s appeal, the Court of Appeals first considered the threshold question of whether the ADA allows for a hostile work environment harassment claim. Surveying decisions from other federal appeals courts around the United States the court concluded that the ADA does allow such claims.

Turning next to the merits of the plaintiff’s hostile environment claim, the court found that, based on the evidence, the jury reasonably concluded that the plaintiff was not harassed by CL or EW because of her disability. Although there was evidence of unkind behavior by CL and EW, the jury stated on a “special verdict form” that the “negative comments” were not related to the plaintiff’s disability. The court also noted that the Sheriff’s Office promptly transferred CL and EW after the plaintiff complained about them, noting, “removing alleged harassers permanently, as the Sheriff’s Office did …, can bring an end to the unlawful employment practice.”

The court next addressed the alleged harassment by VH, which the plaintiff said happened after CL and EW were transferred. The court concluded that the trial judge properly granted summary judgment to the Sheriff’s Office on this aspect of the plaintiff’s claim because, even assuming everything the plaintiff said about VH was true, the conduct described amounted to three supposedly insensitive comments, over a period of a year and a half, which the court found was not sufficiently severe or pervasive to create an abusive working environment. The court noted that, “offhand comments, isolated incidents, and simple teasing” do not necessarily equal unlawful harassment. The court also observed that the Sheriff’s Office transferred VH, too, after the plaintiff complained.

What are the practical lessons learned from Ford v. Marion County Sheriff’s Office?

Harassment because of a disability is illegal, not to mention bad for workplace culture. Make sure your anti-harassment policy explicitly prohibits disability harassment.

Investigate claims of harassment promptly, thoroughly and fairly, and take action if warranted by the evidence — in this case, the Sheriff’s Office was bolstered both pre-trial and at trial by the fact that it investigated the plaintiff’s harassment complaints and took action to address them. This case is a textbook example of how investigating complaints and taking remedial action helps everyone in the workplace and strengthens the employer’s position in litigation.

The Seventh Circuit Court of Appeals (covering Illinois, Wisconsin, and Indiana) continues to hold that minor incidents of workplace teasing do not rise to the level of unlawful hostile environment harassment. Nevertheless, since we all care deeply about employee morale, engagement, recruitment, and retention, you should strive to create a workplace where cruelty does not occur and to act decisively to stop it if it does occur

Copyright © 2019 JD Supra, LL

In Focus

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Six Ways Accessibility Will Impact Businesses And Website Design In The Future

Marty Samples

Marty Samples is the Vice President of Digital Solutions at Fusion Alliance, your digital transformation partner.

Most people take websites for granted. They pay bills, book flights and download white papers online with relative ease. But not everyone assumes that digital tools are designed with them in mind, and that’s a failure for everyone.

One in four U.S. adults report having a disability that impacts major life activities. That’s 61 million friends, neighbors and family members who deserve a digital experience that is just as user-friendly as anyone else’s.

Integrating website accessibility into your design process and culture is a step toward addressing this very human problem of exclusivity. And while a sense of justice is enough to move many organizations to act, there is also a strong business case. Offering a user experience that caters to only a select group of users alienates potential brand advocates and carries serious legal risks.

According to the Americans with Disabilities Act Title III Regulations, public properties, including public websites, have to adhere to accessibility parameters. In other words, your digital presence must be designed and coded so that people can carry out their desired tasks, from completing a form to making a purchase. This should extend beyond your basic site to search tools, mobile apps and social media.

Organizations often find themselves on the wrong side of this issue. Rather than proactively carving out a path to invite accessibility in as a priority, they are reacting to negative feedback and even lawsuits. These companies are well meaning but don’t know what to do to ensure compliance.

To help keep you up to speed, here are six ways accessibility may impact businesses and website design in the near future:

1. Lawsuits will escalate.

From 2017 to 2018, the number of website accessibility lawsuits filed in federal court under Title III of the ADA shot up from 814 to 2,258. This trend will likely continue as more users hold noncompliant websites and other digital tools accountable.

Recent high-profile suits have called out Winn-Dixie, Beyoncé, Burger King, Rolex Watch and Amazon. In a particularly unsavory 2019 story, instead of fixing its online ordering feature, Domino’s pizza responded to a blind customer’s lawsuit with a petition to the U.S. Supreme Court to quash the case.

2. Standard design processes will change.

To achieve a more inclusive user experience, designers and developers follow the Web Content Accessibility Guidelines (WCAG) for web standards. It’s part of their process, showing up as captions on videos for people with impaired hearing or spoken versions of site copy read aloud by screen readers.

Before accessibility can become an intrinsic part of the website design process, organizations will have to rally their troops and emphasize its importance. In the near future, writing alt-text for images, ensuring all content can be accessed with a keyboard and making sure text can be viewed at 200% without impairing readability will be second nature.

While we aren’t there yet, the additional steps needed to build a compliant site will become standard procedure over the next few years.

3. Know-how will develop fast.

Remember back in the 1990s when accessibility ramps were tacked onto commercial buildings like ugly metal afterthoughts, function-rich but design-poor? Today, ramps are architectural features, such as switchbacks crisscrossing wide flights of stairs and curving slopes that appeal to any aesthete’s sense of beauty.

In digital, we aren’t working with hammers and drills, and we’ve had 29 years to appreciate the precepts of the ADA. The speed at which website accessibility can and should evolve will be much faster than its brick-and-mortar counterparts. Plus, adherence helps companies compete more effectively for the more than $645 billion of disposable annual income that Americans with disabilities control, creating an additional layer of urgency.

4. Site facelifts will facilitate compliance.

Organizations regularly upgrade their websites and apps to make them faster, more secure or better optimized for search. Add accessibility to that list.

When talking to our clients about site improvements, accessibility is at the forefront of conversations about website facelifts. These are often great opportunities to ramp up (pun intended) inclusion efforts.

5. Someone will own accessibility.

Who on your team will lead an initiative around accessibility? How will this person develop knowledge and implement more stringent ADA accessibility user testing? Is this a role for design/development or someone in HR/legal?

More organizations are asking themselves these questions, and many are looking to outside partners to help them get and stay compliant. Whether it’s handled internally or externally, accessibility will become part of someone’s job description.

6. Audits will head off future legal fights.

ADA lawsuits and subsequent news stories can burn through an organization’s brand equity, repel customers and rack up hefty legal expenses. When performed by a trusted digital partner, an audit can bring to light web accessibility infractions so that you can deal with them before they impact your audience. (One caveat: Beware of predatory auditors. Scammers have been known to offer auditing services and then threaten to expose noncompliant clients to the ADA if they don’t sign on for follow-up projects.)

As organizations take first steps to prioritize accessibility, initial results might look and feel like that ugly ramp from the 1990s. At Fusion Alliance, the growing pains have been worth it to ensure that our user experience offers everyone the same level of respect and compassion.

Making accessibility part of your digital design conversations now will better serve every human in the future. Don’t wait to talk to your team.

©2019 Forbes Media LLC. All Rights Reserved.

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