News From the Federal Agencies

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U.S. Equal Employment Opportunity Commission (EEOC)

NEW ‘DIGEST OF EEO LAW’ ISSUED BY EEOC

Latest Quarterly Edition Includes Selected Notable 2020 Decisions

The U.S. Equal Employment Opportunity Commission (EEOC) announced the newest edition of the federal sector Digest of Equal Employment Opportunity Law (EEO Digest) is now available on the EEOC’s website.

“This annual compilation edition of noteworthy decisions provides a convenient reference for federal sector stakeholders,” said Carlton M. Hadden, director of the EEOC’s Office of Federal Operations (OFO). “The latest edition highlights important 2020 case decisions.”

EEOC Issues Updated COVID-19 Technical Assistance on Vaccines

The U.S. Equal Employment Opportunity Commission (EEOC) posted updated and expanded technical assistance related to the COVID-19 pandemic, addressing questions arising under the federal equal employment opportunity (EEO) laws.

The expanded technical assistance provides new information about how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer offers incentives for employees to provide documentation or other confirmation of vaccination when an employee gets a vaccine in the community or from the employer or its agent.

The technical assistance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers and employees.

The key updates to the technical assistance are summarized below:

• Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

EEOC posts a new resource for job applicants and employees

The new resource for job applicants and employees provides basic information about how federal employment discrimination laws help workers who are being harassed; who need extra protection against getting sick; who are not being allowed to work; or who need a modification of their employer’s COVID-19 safety requirements. These two publications follow an EEOC hearing on April 28 issued on May 13, 2021, and do not specifically address that new guidance.

EEOC Sues United Parcel Service for Disability Discrimination

United Parcel Service, Inc. violated federal law by firing an employee because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC’s suit, a UPS human resources supervisor at a Jacksonville ware-house location referred to an employee with a disability as a “liability,” claiming that he could not do his job because of his diabetes. The employee requested the accommodation of an occasional short break of less than five minutes in between unloading trailers to check his blood sugar and eat or drink something if necessary.

Agri-AFC, LLC to Pay $40,000 to Settle EEOC Disability Discrimination Lawsuit

Agri-AFC, LLC, an agricultural retailer which operates 21 retail locations throughout Alabama, Florida, Georgia and Mississippi, has agreed to pay $40,000 and furnish significant equitable relief to settle a federal lawsuit charging that Agri fired an employee because of a pre-existing back condition, the U.S. Equal Employment Opportunity Commission (EEOC) announced .

According to the EEOC’s lawsuit, the employee was hired in 2017 to work at Agri’s Poplarville, Miss., facility as a driver and warehouse worker. Two months after his hire, the employee disclosed to Agri’s district manager that he was taking medication for a back injury he had suffered during military service. Almost immediately thereafter, the company demanded a list of the employee’s medications and then fired him, telling him the district manager felt he was a liability to the company because of his back injury and feared he would injure himself further, the EEOC said.

National Spine & Pain Centers to Pay $75,000 to Settle EEOC SuitCommission

National Spine & Pain Centers, LLC, a Rockville, Md.-based medical practice with over 60 offices in the Mid-Atlantic and Northeast, will pay $75,000 and furnish significant equitable relief to resolve a federal disability discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s lawsuit, National Spine & Pain Centers denied leave to a patient services coordinator who had breast cancer.

EEOC Sues Opportunities and Resources, Inc. for Disability Discrimination

Opportunities and Resources, Inc. and ORI Anuenue Hale, Inc. (ORI), a work placement agency for individuals with disabilities, violated federal law when the agency routinely refused to provide sign language interpreters to deaf employees, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC’s lawsuit, several deaf employees made repeated requests for sign language interpreters for staff meetings where ORI discussed work safety procedures, work protocols and assignments, and other work-related information.

Treehouse Foods to Pay $50,000 and Provide Benefits to Settle EEOC Discrimination Suit

Treehouse Foods, Inc. / Treehouse Foods Private Brands, Inc., a food products manufacturer in Forest Park, Ga., will pay $50,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced . The EEOC’s suit charged that Treehouse Foods denied its 19-year employee’s request for intermittent unpaid leave as an accommodation to receive treatment for her disabilities. Instead, the EEOC said, the company failed to engage in the required interactive process and assessed attendance infraction points to the employee under a rigid attendance policy.

U.S. Department of Justice (DOJ)

Kaiser Permanente Agrees to Comply with the ADA by Improving Access for People Who Are Deaf or Hard of Hearing

Southern California Permanente Medical Group and Kaiser Foundation Hospitals have agreed to resolve allegations that they violated the Americans with Disabilities Act (ADA) by failing to provide at one of their facilities a qualified sign language interpreter or other appropriate form of auxiliary aid or service to a deaf patient.

Settlement Agreement with the City of Killeen

The Justice Department entered into a settlement agreement with the City of Killeen, Texas to resolve an investigation conducted under Title II of the Americans with Disabilities Act (ADA). Under the agreement, the City will make changes to its buildings and facilities, provide auxiliary aids and services to ensure effective communication, reasonably modify policies, practices, and procedures to provide access to City programs and activities, implement a plan for accessibility of sidewalks and curb ramps within the City, and designate an employee to serve as the City’s ADA Coordinator.

Settlement Agreement between the United States and San Luis Obispo County

The Agreement resolves the Department of Justice’s investigation of SLOC for alleged violations of the architectural and program access requirements of Title II of the Americans with Disabilities Act . SLO Jail is a maximum, medium and minimum-security facility, which houses pretrial arrestees and sentenced inmates. The United States initiated this investigation based on a complaint from an inmate at SLO Jail who has mobility disabilities and uses a prosthetic leg.

Justice Department Settles with North Carolina Dental Offices Over HIV Discrimination

The Justice Department announced that it has reached a settlement to resolve a claim that Night and Day Dental Inc. discriminated against a woman with HIV in violation of the Americans with Disabilities Act (ADA).

Title III of the ADA prohibits dentists and other health care providers from discriminating against people with disabilities, including HIV. Following an investigation, the department found that Night and Day Dental discriminated against a woman with HIV when it refused to accept her as a new patient because of her HIV status. The patient was seeking routine dental care, including a cleaning and check-up. In addition, Night and Day Dental has a policy of requiring certain bloodwork results from patients with HIV before deciding whether to provide dental care, when in fact requiring such results is not medically necessary or recommended.

Settlement Agreement between the United States and Newton County, Arkansas

The United States conducted an investigation of the Newton County Board of Election Commissioners (“the Board”) under Titles II and V of the Americans with Disabilities Act of 1990, as amended (“Title II”, “Title V”, and “ADA”, respectively), and their implementing regulations, 28 C.F.R. Part 35.

During Early Voting on March 2, 2020, and during Election Day on March 3, 2020, the United States surveyed the county courthouse used for Early Voting and all 18 of the Board’s polling places used during the election. The United States observed that all of the polling places surveyed contained architectural barriers that rendered the facilities inaccessible to voters with disabilities, such as a lack of accessible parking areas and accessible routes due to gravel and grass ground surfaces; excessively sloped ramps, some without handrails and edge protection; numerous gaps and level changes along exterior routes; and protruding objects. In addition, the United States observed a lack of operable accessible voting machines at all polling places, including at Early Voting.

Sporting Goods Company Changes Policy Following ADA Allegation

Scheels All Sports Inc., located in Overland Park, Kansas, agreed to create a new policy as part of a settlement following allegations the company violated the Americans with Disabilities Act. The allegations stem from a discrimination complaint filed in 2019 by an 18-year-old woman with Down Syndrome. An investigation revealed that during a high school outing at Scheels, a Ferris wheel attendant refused to allow her to ride with a classmate because of her disability. He cited a company policy requiring individuals with disabilities to be accompanied by an adult. Although a teacher assured the attendant as well as managers the complainant could safely ride with her classmate, the staff refused service because of her disability.

Settlement Agreement between the United States and New London County 4H Foundation

This matter is based upon a complaint filed with the United States Attorney’s Office for the District of Connecticut against New London County 4-H Camp alleging violations of Title III of the Americans with Disabilities Act (“ADA”). The complaint alleges that New London County 4-H Camp refused to provide a reasonable accommodation to a child with diabetes by refusing to train any members of its staff on the use and application of glucagon, in case the child with diabetes needed it in an emergency. The complaint further alleges New London County 4-H Camp refused to conduct an individualized assessment to determine if they could make reasonable modifications to their policies to accommodate the child and denied the child admission to the camp.

DOJ and Whatcom County resolve multiple complaints regarding violations of the Americans with Disabilities Act

The U.S. Department of Justice and Whatcom County have reached agreements to ensure individuals who are deaf or hard of hearing are able to effectively communicate during encounters with the criminal justice system, announced Acting U.S. Attorney Tessa M. Gorman.

According to the settlement agreement with the Whatcom County Sheriff, a Whatcom County resident filed a complaint that his rights under the Americans with Disabilities Act (ADA) were violated when he was questioned and arrested by Sheriff’s deputies after a dispute with his tenant. The investigation found that the deputies knew the complainant was deaf and communicated via American Sign Language (ASL).

Nevertheless, when investigating a complaint from the man’s tenant, they failed to use an interpreter and instead relied on hand-written notes to communicate.

Justice Department Agreement Requires Building Owners to Remove Barriers

The Justice Department reached a single agreement with nineteen building owners in Washington D.C., Maryland, and Virginia who rent space in their buildings to stores and restaurants. The agreement requires the owners to fix their buildings so that people with mobility disabilities, like wheelchair users, can get in the door to shop or eat. Physical barriers, like steps at an entrance, can keep people with disabilities out and cause discrimination under the Americans with Disabilities Act (ADA).

The Justice Department inspected three buildings on 14th Street N.W., in Washington, D.C., to see if people with disabilities could enter the businesses renting space there. Two of the buildings had steps at the entrances and one did not have enough space at the entrance for wheelchair users to open the door and go in on their own.

The building owners agreed to hire an architect to check their nineteen buildings in Washington, D.C., Maryland, and Virginia to make sure the buildings can be used by people with disabilities. The owners agreed to fix any problems by the end of next year. Possible fixes are adding a ramp where there are steps or putting in an automatic door opener when there is not enough space for wheelchair users. Fixing the buildings is an important step toward providing people with mobility disabilities an equal opportunity to shop and dine at the stores and restaurants inside.

The ADA requires stores and restaurants located in new buildings to make sure the spaces their customers use in those buildings are useable by people with disabilities, such as those who use wheelchairs. If a business is located in an older building, the business must make sure barriers to people with disabilities are removed when it is easy to do. And if a business makes changes to a building, those changed areas must be made useable as much as possible. These rules also apply to the companies that own the buildings that they rent to businesses like stores and restaurants.

Statement of Interest of the United States in Migyanko v. Aimbridge Hospitality

The Justice Department filed a Statement of Interest in a lawsuit in the Western District of Pennsylvania to clarify that where an alleged barrier—the height of a hotel bed—is not addressed by the ADA Standards, the ADA’s general nondiscrimination provisions still apply, including making reasonable modifications where necessary to provide goods and services to people with disabilities. The lawsuit, Migyanko v. Aimbridge Hospitality, LLC, alleges that the world’s largest third-party operator of hotels provides hotel beds that are too high for individuals who use wheelchairs or other mobility devices to transfer into them.

Justice Department Resolves ADA Complaint with Maine Department of Health and Human Services

The Justice Department reached an agreement with the Maine Department of Health and Human Services (DHHS) to resolve alleged violations of the Americans with Disabilities Act (ADA). A young man with intellectual disabilities (ID) filed a complaint with the Justice Department alleging that Maine imposed restrictions that placed him at serious risk of having to move from his own home into a congregate setting in order to receive the services he needs. Congregate settings are multi-person homes or facilities where residents receive needed services. This agreement will help ensure that Mainers with ID and autism can receive the personal assistance they need in their own homes.

The Justice Department announced settlements with Central Texas College of Killeen, located in Killeen, Texas (CTC) and Tidewater Community College, located in Virginia Beach, Virginia (TCC), to improve access to education for students with disabilities. Under the agreements, CTC and TCC will take important steps to improve physical access for students with disabilities such as removing barriers to accessibility in buildings such as classrooms, dormitories, libraries, technology centers, and places of recreation. The agreements require CTC and TCC to make physical modifications to facilities so that parking, routes into the buildings, entrances, restrooms, service counters and drinking fountains are accessible to people with disabilities; and assembly areas have the required wheelchair and companion seating. The agreements also require these colleges to implement a plan for the accessibility of sidewalks and curb cuts within their borders.

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California Federal Court Holds Domino’s Website Violates the ADA

Limits Penalties Under Unruh Act to $4,000

• Heather Goldman,
• Merrit Jones,
• Daniel Rockey,
• Steven Stimell
• Bryan Cave Leighton Paisner

Summary

A California federal district court has held that the website of Domino’s Pizza violates the ADA, following a long saga that included the Ninth Circuit’s reversal of the district court’s prior dismissal of the case.

Judge Jesus Bernal of the Central District of California granted the motion for summary judgment by plaintiff Guillermo Robles on June 23, 2021, on grounds that Robles could not order a pizza from Domino’s website using screen reader technology, and ordered Domino’s to make the website accessible in accordance with the Web Content Accessibility Guidelines (WCAG), version 2.0. The court denied the plaintiff’s motion for summary judgment as to Domino’s app, however, finding that whether the app is currently accessible – and therefore whether the plaintiff’s claim for injunctive relief under the ADA is moot – to be a disputed issue of fact.

The court also held that Domino’s violated California’s Unruh Act, which incorporates the ADA. In a bright spot for Domino’s and other website accessibility defendants, however, Judge Bernal rejected the plaintiff’s argument that he was entitled to $4,000 in statutory damages under the Unruh Act for each of his visits to Domino’s website, because each visit constituted a separate violation. Instead, the court held that Domino’s inaccessible website constitutes a “single overarching violation,” and that the plaintiff is limited to $4,000 in Unruh Act penalties.

The court rejected Domino’s argument that its phone line was an acceptable accessibility substitute for its web page and app, because the plaintiff had waited for more than 45 minutes before hanging up on at least two occasions. The court’s decision leaves open the question of whether Domino’s phone line otherwise would have been an acceptable accessibility substitute.

As we previously reported, the Ninth Circuit in Robles v. Domino’s Pizza, 913 F.3d 898 (9th Cir. 2019) held that Title III of the Americans with Disabilities Act (ADA) applies to Domino’s website and app, and rejected the due process and primary jurisdiction challenges successfully raised by Domino’s in the court below.

In considering the parties’ cross-motions for summary judgment, Judge Bernal rejected Domino’s argument that its website and app are not subject to the ADA because the brick and mortar store locations are owned by franchisees, and therefore there is no “nexus” to a place of public accommodation as required to state a violation of the ADA within the Ninth Circuit. Instead, the court agreed with the plaintiff, who argued that a defendant’s ownership of the physical location is not required, and that the Ninth Circuit addressed this issue in holding that “[t]he alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” Robles, 913 F.3d at 905.

In considering the plaintiff’s motion for summary judgment, Judge Bernal noted that the plaintiff’s expert had testified that the browser used by the plaintiff was outdated for purposes of using JAWS screen reader technology, but that Domino’s expert had conceded using up-to-date technology that Domino’s website was not fully accessible. The court therefore was not required to “wade into a sticky question: what level of technological capabilities is required of a blind website user such that the failure of JAWS technology is necessarily the fault of the website owner?” The court rejected Domino’s argument that the plaintiff’s claims as to its website were moot, since Domino’s expert did not find the current website to be fully accessible.

Copyright © 2021 JD Supra, LLC

Question

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Q. Does the ADA require an employer to create a position as a reasonable accommodation?

ADA didn’t require Sanofi to allow sales reps’ ‘job sharing’

Daniel Wiessner

A U.S. appeals court on Tuesday ruled that Sanofi-Aventis U.S. LLC was not required to allow a pharmaceutical sales representative with an autoimmune disease to share her job duties with a coworker in order to accommodate her disability.

A unanimous three-judge panel of the 4th U.S. Circuit Court of Appeals said that because the job-sharing arrangement proposed by Janet Perdue did not exist at the time, it did not amount to a reassignment to a vacant position that is required under the Americans with Disabilities Act.

Perdue was backed by the Equal Employment Opportunity Commission, which in an amicus brief last year said the case should have survived summary judgment because a jury could have found that job sharing was a “feasible, plausible, and effective” way to accommodate her medical condition.

Michelle Gessner of Gessner Law, who represents Perdue, did not immediately respond to a request for comment. Nor did New Jersey-based Sanofi and its lawyers at Womble Bond Dickinson.

Perdue, who was originally based in South Carolina, was hired by Sanofi in 2001 and in 2013 was diagnosed with an autoimmune disease and underwent surgery to remove a brain tumor, which affected her vision and ability to walk. When Perdue returned to work, Sanofi allowed her to split her job duties with another employee. She eventually returned to a fulltime position, and in 2017 was transferred to Asheville, North Carolina.

Perdue in a 2018 lawsuit in Asheville federal court accused Sanofi of failing to accommodate her disability in violation of the ADA. Both sides moved for summary judgment and U.S. District Judge Martin Reidinger in 2019 sided with the company. The ADA requires employers to reassign workers to vacant positions when possible, the judge said, but the job share proposed by Perdue was not a “vacancy” because it never existed in the first place. The 4th Circuit on Tuesday agreed, pointing to Sanofi’s policy of requiring approval by managers before any job-share position was created. “Sanofi appears willing to consider flexible-employment situations. But its generosity and overall flexibility does not raise the legal standard,” Circuit Judge Julius Richardson wrote.

The panel included Circuit Judges G. Steven Agee and Allison Rushing. The case is Perdue v. Sanofi-Aventis U.S. LLC, 4th U.S. Circuit Court of Appeals, No. 19-2094.

© 2021 Reuters. All rights reserved

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1st ADA Anniversary

July is Disability Pride month and July 26th marks the 31st anniversary of the signing of the landmark civil rights law, Americans with Disabilities Act (ADA). Join the Great Lakes Center and the ADA National Network as we acknowledge the work that has been done and the work that still needs to happen in order to insure the full inclusion of persons with disabilities in all aspects of society. Visit the Great Lakes and the National Networks ADA Anniversary pages to get information about the ADA as well as information on events and activities taking place to commemorate the signing of the law.

Great Lakes ADA Anniversary Packet

ADA31 – Celebrate. Learn. Share. | ADA Anniversary Tool Kit

Trainings and Events

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