News From the Federal Agencies

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U.S. Access Board

Access Board Resolves 43 Architectural Barriers Act Cases Through Corrective Action

U.S. Equal Employment Opportunity Commission (EEOC)

AccentCare to Pay $25,000 To Settle EEOC Disability Discrimination Suit

Day & Zimmermann Will Pay $45,000 To Settle EEOC Disability and Retaliation Suit

Federal Court Rules in Favor of EEOC in Disability Discrimination Charge against Amsted Rail

The Docket

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Ninth and Eleventh Circuits: Reporting To Work Impaired, Failing Drug Test, And Failing To Request Accommodation Doom Employees’ ADA Discrimination Lawsuits

January 14 2019

By Squire Patton Boggs – Melissa Legault

As most readers of this blog are aware, the Americans with Disabilities Act (“ADA”) and analogous state laws prohibit employers from discriminating against qualified employees (and applicants) based on known physical or mental disabilities, and also require employers to provide those employees with reasonable accommodations for their disabilities. Although broad in their protections, these laws have limits, as two recent federal appellate court decisions illustrate.

In Connelly v. WellStar Health System, Inc., the Eleventh Circuit evaluated a plaintiff’s claims against her former employer under the ADA for discrimination, failure to accommodate, and retaliation after it terminated her based on its belief that she had reported to work under the influence of drugs.

When evaluating ADA claims of discrimination, courts apply a multi-step, burden-shifting framework, under which the employee bears the initial burden to demonstrate that she is a qualified, disabled individual who experienced an adverse employment action. If the employee establishes these facts, the burden shifts to the employer to provide a legitimate non-discriminatory explanation for its decision, here to terminate employment. If it does so, the burden shifts back to the employee to prove that the employer’s explanation was not the true reason for its actions by showing, for example, that the decision was a departure from the employer’s normal policies, thereby suggesting that the decision was motivated by discriminatory intent.

Under this framework, the plaintiff in Connelly easily satisfied her initial burden by showing that she has a disability and was terminated. In response, her employer explained that it terminated her because she reported to work with undisclosed prescription drugs in her system, which was a violation of the employer’s drug policy. The court found that the employer’s explanation established a “legitimate, non-discriminatory reason” for her termination. The court further determined that the plaintiff did not rebut that explanation because she failed to present any specific evidence that showed that the employer’s explanation should not be believed (or, in other words, that it was a pretext for discrimination). She argued that the employer’s reason was a pretext because the employer did not consult a physician to determine if the unreported drugs actually caused the impairment. The court however rejected this argument, explaining that the employer’s honest belief that the drug were the cause of the impairment was enough to establish a legitimate reason, even if that belief was mistaken. She also argued that pretext could be found because the employer deviated from its policy by not providing her with a chance to dispute the drug test results. The court rejected that argument as well, concluding that this deviation did not suggest discrimination.

The plaintiff’s failure-to-accommodate claim also failed – which was not a surprise as the court determined that she never requested any accommodation. Under the ADA, an employer’s failure to reasonably accommodate can itself constitute discrimination if the individual is otherwise qualified and providing the accommodation would not present an undue burden or hardship to the employer. Although an employee alleging failure-to-accommodate need not show that her employer enforced a policy in a discriminatory manner, and instead only needs to “identify an accommodation and demonstrate that it is reasonable,” the employer is not obligated to provide any accommodation unless and until the employee makes a direct request (unless the need for an accommodation is obvious, i.e., an employee who uses a wheelchair), which the plaintiff in Connelly didn’t.

Last, the court rebuffed the plaintiff’s retaliation claim. The same burden-shifting analysis described above also applies to retaliation cases. However, because she never requested an accommodation, her ADA retaliation claim, which was based on her employer’s supposedly hostile response to a never-requested accommodation, necessarily failed.

The day after Connelly was decided, the Ninth Circuit came to the same conclusion in Fragada v. United Airlines, Inc., a case with very similar facts. In Fragada, the plaintiff’s employment was terminated after he failed a drug test (thereby violating company policy). Like the plaintiff in Connelly, he sued, alleging disability discrimination under the California Fair Employment and House Act (“FEHA”) and disputing the test results. The court, using a similar burden-shifting analysis as was applied in Connelly, concluded that the employee failed to rebut the employers legitimate, nondiscriminatory reason for the firing or show that the employer’s reason for his termination was pretextual. In addition, the court rejected the plaintiff’s failure-to-accommodate claim because, like the plaintiff in Connelly, he had not requested an accommodation in the first instance.

Although straightforward, these cases provide a good reminder of the limits and requirements under the ADA and other similar state laws, and they demonstrate how courts analyze claims under these statutes.

Question

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Does the ADA apply to web sites of businesses?

Ninth Circuit Rules That Lack of Web Accessibility Regulations Does Not Bar ADA

Suits | Perkins Coie – JDSupra

The U.S. Court of Appeals for the Ninth Circuit issued a decision on January 15, 2019 in a closely followed web accessibility case, Robles v. Domino’s Pizza, LLC, reaffirming Ninth Circuit precedent holding that companies whose online activities share a nexus with physical places of public accommodation may be held liable under the Americans with Disabilities Act for failing to make their websites and apps accessible to persons with disabilities. Most notably, however, the decision expressly rejected the argument that the lack of regulatory clarity on the ADA’s application to web content violates due process rights. Robles may have ramifications for how other courts consider due process arguments under the ADA in the online context and for other regulatory areas where statutory obligations have not been clarified by federal agencies.

Background on Web Accessibility Under the ADA

Title III of the ADA prohibits discrimination on the basis of disability in “places of public accommodation,” which include, among other locations, restaurants and other establishments serving food and drink. However, the ADA—which was signed into law in 1990, well before the advent of digital platforms and media—does not address whether websites and other online fora are considered “places of public accommodation” for purposes of Title III. The Ninth Circuit has held that the ADA applies to online activity only insofar as there is a sufficient nexus between the allegedly discriminatory goods or services and an actual, physical location. Other courts have rejected the nexus requirement or have not explicitly decided the issue of whether and how the ADA applies to websites.

The U.S. Department of Justice, which is responsible for implementing regulations for the ADA, has taken the view that the ADA applies to websites and mobile apps. In 2010, the DOJ released a proposal to extend accessibility requirements to internet content. But seven years later, the DOJ withdrew the proposal, concluding that it needed to conduct further analysis before determining whether specific technical standards for web accessibility were necessary and appropriate.

Due to the DOJ’s inaction, there remain no generally applicable web accessibility requirements in the United States. However, guidelines developed by the World Wide Web Consortium—known as the Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”)—include voluntary best practices and technical criteria that have been widely adopted by members of industry and certain government agencies as the prevailing standard for web accessibility.

Decision and Analysis

In Robles, a man who is blind filed suit against the pizza delivery chain Domino’s Pizza in federal district court in California, alleging that the company had violated the ADA by failing to make its website and app accessible to blind and visually impaired persons who use screen-reading software. The district court determined that Domino’s website and app—which connect customers to the goods and services available in the company’s physical restaurants—constituted places of public accommodation under the ADA and acknowledged that the ADA mandates the provision of auxiliary aids and services to persons with disabilities. But the district court ultimately dismissed the plaintiff’s complaint, concluding that requiring Domino’s to abide by the WCAG 2.0 guidelines, absent formal guidance from the DOJ on the appropriateness of such guidelines, violated the company’s Fourteenth Amendment right to due process. The district court also invoked the doctrine of “primary jurisdiction,” dismissing the case while DOJ continued to consider whether implementing regulations should issue.

On appeal, the Ninth Circuit reversed and remanded the district court’s decision. The court agreed with the district court’s conclusion concerning the application of the ADA to Domino’s website and app. But the court held that imposing liability on Domino’s under the ADA would not raise due process concerns because the ADA’s existing requirements concerning auxiliary aids and services, coupled with the DOJ’s longstanding position that the Act applies to the websites of covered entities, provided Domino’s with sufficient notice that its website and app must be made accessible. Further, the court determined that the lack of specific regulations from the DOJ did not eliminate Domino’s continuing duty to ensure that persons with disabilities have full and equal access to the company’s goods and services, and that reference to specific WCAG 2.0 standards might be an appropriate form of relief, but the court did not seek to impose liability on Domino’s under this standard. The court also rejected the application of the primary jurisdiction doctrine because application of the ADA was within the court’s competence, and deferral to the DOJ would inevitably mean that relief for the plaintiff would be significantly delayed.

Impact on Other Suits

The decision in Robles is likely to influence how courts in other jurisdictions consider due process arguments made by defendants in web accessibility suits. A case to watch is Gil v. Winn-Dixie Stores, Inc., which raises similar accessibility issues and is currently pending before the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit heard oral arguments in the case in October 2018, but has not yet issued a ruling. Regardless of how Gil is resolved, Robles will likely diminish the force of commonly-invoked arguments that the absence of formal web accessibility rules exempts defendants from ADA liability online. The reasoning in Robles also may be relied on in other contexts where statutory obligations are left relatively undefined but where voluntary standards have come to be seen as the prevailing metric for compliance with such obligations.

In Focus

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2019 National ADA Symposium

June 16 – 19, 2019

Gaylord Texan Resort ~ Grapevine, TX

Registration Now Open!

This annual four-day event is the most comprehensive conference on the ADA and provides the latest information on regulations and guidelines, implementation strategies, and best practices related to the ADA. Sessions cover all areas of the ADA including employment, state and local government, business, health care, higher education, and facility access. These sessions are presented by nationally recognized experts including representatives of the Dept. of Justice, EEOC, US Access Board, and Dept. of Health and Human Services.

Features of the 2019 ADA Symposium include:

• Pre-Conference sessions.
• Over 120 break-out sessions
• Advanced workshops
• Exhibits and Exhibitor Reception
• Welcome Reception
• Two full breakfast buffets and three lunches

Register before May 17th to save $150 on Attendee registration fees.

Exhibitor Spaces: This year we only have 30 exhibitor spaces available. Go online to register for yours before they’re gone!

Sponsorships: If your company or organization is interested in sponsoring this event, please contact Lisa Tucker to discuss sponsorship opportunities.

Discover all the details and a link to registration at http://www.adasymposium.org

If you have questions or encounter any registration issues, please contact Lisa Tucker at (352) 669-0076 or by email at TuckerLi@missouri.edu

National ADA Symposium https://www.adasymposium.org

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