News From the Federal Agencies

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U.S. Access Board

U.S. Access Board Releases Summary Report on AV Forum Public Forum on Inclusive Design of AVs

The U.S. Access Board has released a summary report on its four-part series of virtual meetings on making autonomous vehicles (AVs) accessible to passengers with disabilities. The sessions featured presentations by invited speakers who shared information and research results on design considerations and solutions for making AVs accessible to passengers with mobility, sensory, or cognitive disabilities. They also provided an opportunity for members of the public to pose questions and to share information and ideas during the session or through an online discussion platform.

U.S. Equal Employment Opportunity Commission

JURY AWARDS OVER $125 MILLION IN EEOC DISABILITY DISCRIMINATION CASE AGAINST WALMART

An eight-member jury in Green Bay, Wisconsin returned a verdict of $125,150,000 in favor of the U.S. Equal Employment Opportunity Commission (EEOC) on three claims of disability discrimination against Walmart, the federal agency announced. The jury found that the retailer failed to accommodate Marlo Spaeth, a longtime employee with Down syndrome, and then fired her in July 2015 because of her disability.

Professional Transportation, Inc. to Pay $60,000 to Settle EEOC Disability Discrimination Suit |

Professional Transportation, Inc. (PTI), a transportation company headquartered in Evansville, Ind., with operations throughout the United States, will pay $60,000 to an individual job applicant who was denied part-time employment and furnish significant non-monetary relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s lawsuit, in February 2019 a job applicant recovering from opioid addiction sought a position as a van driver at PTI’s Bluefield, W.V., branch, and PTI subsequently made a conditional job offer to her. However, PTI later rescinded its offer after the job applicant informed the company that she was receiving Suboxone treatment.

Crothall Healthcare to Pay $37,500 to Settle Disability Discrimination Lawsuit

According to the EEOC’s lawsuit, applicant Billy Pack, who has cerebral palsy and is deaf, was interviewed by Crothall for a laundry services worker position at the company’s Rome, Ga. location. Pack came to the interview with an American Sign Language interpreter and mobility aids and asked for a stool as an accommodation for his disability. Crothall refused to extend an offer to Pack and claimed the position had been filled but hired more than 80 non-disabled workers for the position shortly after Pack applied.

Lonza America to Pay $150,000 to Settle EEOC Disability Lawsuit

The EEOC’s lawsuit charged that Lonza terminated a 14-year employee at its Charleston, Tenn., plant after the employee twice tested positive for a legally controlled substance. The lawsuit further alleged that although Lonza later learned that the employee was a recovering opioid addict participating in a medication-assisted treatment program with a legal prescription for an opioid medication, Lonza forced him into counseling with a clinical psychologist.

U.S. Department of Justice

Justice Department Files Statement of Interest in Gomez v. CSL Plasma, Inc

The Justice Department filed a Statement of Interest in a lawsuit in the Northern District of Illinois to clarify that blood plasma donation centers are “public accommodations” under Title III of the ADA. The lawsuit, Gomez v. CSL Plasma, Inc., alleges that Defendant violated Title III of the ADA by refusing to provide Plaintiff, who is deaf, with an American Sign Language interpreter, making it impossible for him to donate plasma at Defendant’s plasma donation center. Plaintiff has moved for partial summary judgment on the legal issue that Defendant is a “service establishment” and therefore a “public accommodation” under Title III.

Justice Department Reaches Agreement with Volusia County Schools to Protect Students with Disabilities from Classroom Removals and Other Discrimination

The Justice Department reached a settlement under Title II of the Americans with Disabilities Act (ADA) with Volusia County Schools (VCS) to address allegations that the district punished students with disabilities for their disability-related behavior and denied them equal access to VCS’ programs and services through unnecessary removals from the classroom. Under the agreement, VCS will revise and implement policies and practices to comply with the ADA, particularly those relating to attendance and removals, discipline, law enforcement involvement, and behavioral interventions and supports, provide staff training on the ADA, retain an outside behavioral supports consultant, and establish an ADA complaint procedure and tracking system.

Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557

The U.S. Department of Justice and the U.S. Department of Health and Human Services have jointly published guidance that explains when “long COVID” may be a disability under the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. This new guidance document is available online. It addresses titles II and III of the ADA but does not address the employment portions of the law.

Guidance Concerning Federal Statutes Affecting Methods of Voting: Issued by Justice Department

The Department of Justice has issued a guidance document related to state and local governments’ administration of voting that explains the requirements of Title II of the ADA and other federal civil rights laws.

Settlement Agreement between the United States and the County of Muskegon, Michigan

The settlement resolves a complaint the County’s transit system discriminated against the complainant based on his disability in violation of title II of the Americans with Disabilities Act (ADA). The County, in the operation of its Service, shall comply with Title II of the ADA. That requirement includes, but is not limited to, implementing the required service criteria, including to address capacity constraints, and take other related steps to ensure its transit program does not discriminate based on disability.

United States Reaches Resolution of ADA Complaint with RC Theatres Management

The United States Attorney’s Office for the Middle District of Pennsylvania announced a letter of resolution with RC Theatres Management LLLP, the owner and operator of Queensgate RC Theatres located in York, Pennsylvania. The agreement was reached under Title III of the Americans with Disabilities Act (“ADA”).

According to Acting United States Attorney Bruce D. Brandler, the United States Department of Justice received a complaint that the Queensgate RC Theatre was not accessible to individuals with visual impairments, namely the movie theater did not have descriptive audio headsets. After an investigation with the owner’s cooperation, the United States Attorney’s Office determined that the Queensgate RC Theatre failed to have the required descriptive audio headset for the visually impaired complainant.

The Docket

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Court Reject ADA suit from employee whose brother contracted COVID-19 | HR Dive

Ryan Golden, Reporter

A federal judge granted manufacturer Mannington Mills’ motion to dismiss a Georgia-based employee’s suit alleging that the company discriminated against her based on her association with her brother, who testedpositive for COVID-19 (Champion v. Mannington Mills, No. 5:21-cv-00012 (M.D. Ga. May 10, 2021)).

The employee and her brother worked at the same facility. After her brother tested positive for COVID-19, the employee was sent home by her supervisor —who determined that the employee had an in-person conversation with her brother prior to his diagnosis —and was told to quarantine for 14 days. Days later, the employer’s HR director “accused [the employee] of dishonesty” because she failed to disclose the conversation with her brother when the HR director asked if she had contact with him at the time that he was symptomatic. She was terminated the following day.

The employee sued, alleging that Mannington Mills violated the Americans with Disabilities Act, but the district court held that the employee failed to show that the employer regarded her brother as “disabled” as defined under the law.

Dive Insight:
The case touches on a common question among employers, particularly early in the pandemic: Is COVID-19 a disability under the ADA? To this point, the U.S. Equal Employment Opportunity Commission has not said that COVID-19 is a disability, with officials instead stating that the answer is unclear.

The ADA’s association provision prohibits employers from discriminating against employees and job applicants based on their relationship or association with a person who has a disability, regardless of whether the employee or applicant has a disability, according to EEOC guidance.

This provision was central to theemployee’s argument in Champion, but the district court listed three ways in which the plaintiff failed to meet the law’s standard. For one, the employee failed to show that her brother was substantially limited in his ability to work due to his COVID-19 infection, the court said.

Although the employee did argue that her brother “was substantially limited in his ability to communicate” due to his infection, the court said the ADA does not include in-person communication as a form of major life activity under the law’s definition.

The plaintiff also did not succeed under the law’s “regarded as” prong, in part because an association discrimination claim “cannot be based on a plaintiff’s association with a person merely regarded as disabled,” the court said.

“Just because Mannington followed the relevant public health guidance when it sent Evans home from work due to his possible COVID-19 infection and required him to stay home for an unspecified period of time does not mean Mannington regarded him as disabled,” the court said. “To hold otherwise would mean that every person in the United States who was (or who may be) sent home upon feeling sick during this pandemic, or was asked tostay home once testing positive or being exposed to COVID-19, would be disabled for the purposes of the ADA and every such employer covered by the ADA potentially liable.”

Question

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Q. I am altering the dining area in my restaurant and have been told that I need to make the route to the dining area accessible. If I am only doing work on the dining area and not on the other area do I need to make the route accessible?

A. Section 36.403 of the Title III regulations require that when businesses alter an area of primary function the path of travel to that altered area must be accessible to and usable by individuals with disabilities to the maximum extent feasible. The path of travel also includes any bathrooms, public phones and drinking fountains that serve the area of primary function. The Path of travel must comply with the standards up to the point where it becomes disproportionate to the overall cost of the alteration. This means that the cost for making the path of travel compliant doesn’t have to exceed 20% of the original cost of the alteration to the area of primary function. Costs that may be counted include widening doorways, installing ramps, making bathrooms accessible, lowering telephones, and relocating water fountains.

Areas of primary function are areas where a major function take place with in a covered facility. This would include the customer service areas and work areas in places of public accommodation as well asall offices and work areas in commercial facilities. It would not include mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, or restrooms.

The Department of Justice Title III regulations defines a path of travel as a continuous route connecting the altered area to the entrance. The path of travel can include sidewalks, lobbies, corridors, rooms, and elevators.

If the cost of making the path of travel accessible is disproportionate to the overall cost of the alteration then a covered entity should give priority to providing an accessible entrance, a path of travel to the altered area, providing At least one accessible restroom for each sex or a single unisex restroom, accessible telephones, accessible drinking fountains, and when possible additional accessible elements such as parking.

For additional information on the path of travel requirements and other accessibility questions you may contact the Great Lakes ADA Center by calling (800) 949-4232 (V/TTY) or via our on-line contact form.

Resources

Individuals may contact the Great Lakes Center to get materials on the Americans with Disabilities Act and other disability laws. The Great Lakes Center may be contacted by calling (800) 949-4232 (V/TTY) or via our on-line contact form.

ADA UPDATE: A PREMIER FOR SMALL BUSINESS

2010 ADA Standards for Accessible Design

Nondiscrimination on the Basis of Disability in Public Accomodations and Commercial Facility.

In Focus

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Disability rights advocates are worried about discrimination in AI hiring tools | MIT Technology Review

Your ability to land your next job could depend on how well you play one of the AI-powered games that companies like AstraZeneca and Postmates are increasingly using in the hiring process.

Some companies that create these games, like Pymetrics and Arctic Shores, claim that they limit bias in hiring. But AI hiring games can be especially difficult to navigate for job seekers with disabilities.

In thelatest episode of MIT Technology Review’s podcast “In Machines We Trust,” we explore how AI-powered hiring games and other tools may exclude people with disabilities. And while many people in the US are looking to the federal commission responsible for employment discrimination to regulate these technologies, the agency has yet to act.

To get a closer look, we asked Henry Claypool, a disability policy analyst, to play one of Pymetrics’s games. Pymetrics measures nine skills, including attention, generosity, and risk tolerance, that CEO and cofounder Frida Polli says relate to job success.

When it works with a company looking to hire new people, Pymetrics first asks the company to identify people who are already succeeding at the job it’s trying to fill andhas them play its games. Then, to identify the skills most specific to the successful employees, it compares their game data with data from a random sample of players.

When he signed on, the game prompted Claypool to choose between a modified version—designed for those with color blindness, ADHD, or dyslexia—and an unmodified version. This question poses a dilemma for applicants with disabilities, he says.

“The fear is that if I click one of these, I’ll disclose something that will disqualify me for the job, and if I don’t click on—say—dyslexia or whatever it is that makes it difficult for me to read letters and process that information quickly, then I’ll be at a disadvantage,” Claypool says. “I’m going to fail either way.”

Polli says Pymetrics does not tell employers which applicants requested in-game accommodations during the hiring process, which should help prevent employers from discriminating against people with certain disabilities. She added that in response to our reporting, the company will makethis information more clear so applicants know that their need for an in-game accommodation is private and confidential.

The Americans with Disabilities Act requires employers to provide reasonable accommodations to people with disabilities. And if a company’s hiring assessments exclude people with disabilities, then it must prove that those assessments are necessary to the job.

For employers, using games such as those produced by Arctic Shores may seem more objective. Unlike traditional psychometric testing, Arctic Shores’s algorithm evaluates candidates on the basis of their choices throughout the game. However, candidates often don’t know what the game is measuring or what to expect as they play. For applicants with disabilities, this makes it hard to know whether they should ask for an accommodation.

Safe Hammad, CTO and cofounder of Arctic Shores, says his team is focused on making its assessments accessible to as many people as possible. People with color blindness and hearing disabilities can use the company’s software without special accommodations, he says, but employers should not use such requests to screen out candidates.

The use of these tools can sometimes exclude people in ways that may not be obvious to a potential employer, though. Patti Sanchez is an employment specialist at the MacDonald Training Center in Florida who works with job seekers who are deaf or hard of hearing. About two years ago, one of her clients applied for a job at Amazon that required a video interview through HireVue.

Sanchez, who is also deaf, attempted to call and request assistance from the company, but couldn’t get through. Instead, she brought her client and a sign language interpreter to the hiring site and persuaded representatives there to interview him in person. Amazon hired her client, but Sanchez says issues like these are common when navigating automated systems. (Amazon did not respond to a request for comment.)

Trainings and Events

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