News From the Federal Agencies
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U.S. Access Board
The Access Board has issued a correction to its updated accessibility requirements for information and communication technology (ICT) to restore provisions on TTY access that were inadvertently omitted. The action applies to the final rule the Board published last January to jointly refresh its Rehabilitation Act (Section 508) standards for ICT in the federal sector and its Communications Act (Section 255) guidelines for telecommunications equipment.
U.S. Equal Employment Opportunity Commission (EEOC)
ABM Aviation, Inc., formerly Air Serv Corporation, an aviation industry cleaning and services provider at Hartsfield-Jackson Atlanta International Airport in Atlanta, Ga., violated federal law when it denied an employee a reasonable accommodation and terminated her employment due to her disabilities the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. The EEOC further alleged that ABM discriminated against the employee when it suspended her for absences related to her disabilities.
Zachry Construction Corporation, a San Antonio-based construction and industrial contractor, violated federal law when it fired several employees whose post-offer medical questionnaires and subsequent medical examinations revealed they had disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. At the time of termination, all these employees were already performing their job duties in a satisfactory manner, the EEOC said.
InsideUp Inc., a San Diego-based marketing company, will pay $10,500 and provide other significant relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s lawsuit, a marketing consultant with chronic obstructive pulmonary disease (COPD), emphysema and asthma requested a reasonable accommodation. The consultant requested to work on the ground floor of an office building without an elevator, so he would not have to walk up and down the stairs with his condition. InsideUp not only refused his request but thereafter fired him due to his disability.
Signature Industrial Services, LLC (SIS) unlawfully fired three laborers – all of whom were brothers – because of a blood disorder that runs through their family, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed.
The Cheesecake Factory and its wholly owned subsidiary will pay $15,000 and implement changes to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. According to the EEOC suit, The Cheesecake Factory’s Seattle restaurant failed to provide an effective accommodation for Oleg Ivanov, who is deaf and was a newly-hired dishwasher, then subsequently fired him for issues associated with his disability.
Tennessee-based West Meade Place LLP, doing business as The HealthCare Center at West Meade Place, violated federal law by refusing to provide a reasonable accommodation to an employee who suffers from an anxiety disorder, and then firing her because of her disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced on February 1, 2018.
Hester Foods, Inc., the operator of a Kentucky Fried Chicken restaurant in Dublin, Ga., will pay $30,000 to settle a disability discrimination lawsuit filed by the U.S. Employment Opportunity Commission (EEOC), the federal agency announced. The EEOC filed suit in 2017, charging that Hester Foods’ owner violated federal law by firing restaurant manager Cynthia Dunson in July 2015 when he found out that she was taking medications prescribed by her doctor for her bipolar disorder.
Vantage, a Houston-based group of interrelated energy, drilling and management companies, violated federal law by firing an employee because he had a heart attack on board one of Vantage’s drilling rigs, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on January 26, 2018.
Heritage Home Group, LLC (Heritage Home), a North Carolina corporation that designs, manufactures, sources and retails home furnishings, violated federal law when it denied a reasonable accommodation to one of its employees and then fired him, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed.
U.S. Department of Justice (DOJ)
11. The United States Attorney’s Office for the Southern District of Illinois has reached an agreement with Monroe County Illinois. The agreement resolves issues that the County had been excluding individuals with disabilities from participation in or denying them the benefits of the voting program, or subjecting them to discrimination, on the basis of disability. The agreement prohibits Monroe County from excluding individuals with disabilities from participation in or deny them the benefits of the voting program, or subject them to discrimination, on the basis of disability.
The Department of Justice announced an agreement with Denver, Colorado, to improve access to civic life for people with disabilities. The agreement was reached under Project Civic Access (PCA), the Department’s initiative to ensure that cities, towns, and counties throughout the country comply with the Americans with Disabilities Act (ADA). Under the agreement, Denver will ensure that its services, programs, and activities are accessible to people with disabilities.
Monterey Airbus, Inc. has entered into a settlement agreement with the United States Attorney’s Office to resolve allegations that the Monterey-based company violated Title III of the Americans with Disabilities Act (ADA) by discriminating against customers with disabilities. As part of the settlement, Monterey Airbus will take steps to ensure that it provides equivalent service to individuals with disabilities.
The Justice Department reached a settlement agreement with Atlantis Events, Inc., (Atlantis), a cruise and resort vacation company with offices in West Hollywood, California, to ensure that individuals who are deaf or hard of hearing are provided effective communication when travelling with the company.
The Docket
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Manatt Phelps & Phillips LLP
Why it matters?
The Americans with Disabilities Act’s (ADA) “regarded as” protections do not extend to cases where an employee is presently healthy but has the potential to become disabled in the future, a Florida federal court ruled in rejecting a lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The agency filed suit on behalf of Kimberly Lowe, a massage therapist who asked for time off from her job at Massage Envy to visit her sister in Ghana. Although her request was initially approved, Lowe was fired three days before her trip after one of the company owners expressed concern that she would be infected with Ebola during her trip and infect co-workers and clients upon her return. The EEOC asserted that Lowe’s termination constituted disability discrimination in violation of the ADA. But the court disagreed. The employer simply regarded Lowe as having the potential to become infected with Ebola in the future, the court said, which does not fall under the protections of the statute as would be the case for an employee who is currently contagious.
Detailed discussion
Kimberly Lowe began working as a massage therapist at Massage Envy on Jan. 13, 2012. In September 2014, she asked for time off to visit her sister in Ghana. The company’s business manager approved her request. But three days prior to her trip, one of the owners fired Lowe. He expressed concern that she would be infected with Ebola if she traveled to Ghana and infect her co-workers and clients upon her return.
When she returned from Ghana, Lowe filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). After conciliation efforts failed, the agency filed suit in Florida federal court alleging the employer violated the Americans with Disabilities Act (ADA) by firing Lowe with claims under both “regarded as” disability and association discrimination.
The employer moved to dismiss both counts. U.S. District Judge Mary S. Scriven granted the motion, ruling that the statute does not protect an employee who may become disabled.
Under the “regarded as” prong of the ADA’s definition of disability, an individual is regarded as having a disability when he or she is subjected to a prohibited action because of “an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” The EEOC argued that this language means employers can violate the ADA even when they discriminate against an otherwise healthy individual based on misconceptions about that person’s potential to become disabled in the future.
But the court rejected this position, distinguishing cases that involved employees who were presently impaired. Those cases involved a teacher currently contagious with tuberculosis, a job applicant erroneously believed to have a back injury, and an employee who was terminated after traveling to Mexico because her employer feared she had contracted swine flu.
“The Court declines to expand the ‘regarded as’ disabled definition in the ADA to cover cases, such as this one, in which an employer perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct,” the court wrote. “Accordingly, the EEOC has failed to state a claim for discrimination under the regarded as disabled definition of the ADA.”
Turning to the association discrimination claim, Judge Scriven reached the same result. At the time of Lowe’s termination, she had not yet associated with people in Ghana, and there was no evidence that Massage Envy knew that any individual in Ghana with whom Lowe would be meeting had Ebola.
“The plain language of the ADA makes clear that the relevant individual complainant must be ‘known to have [present tense] a relationship’ or association with a person known to have a disability in order for that relationship to serve as a basis for association discrimination,” the court said. “Here, there is no question that [the employer] was without knowledge of a current association between Lowe and individuals in Ghana at the time of Lowe’s termination, because any such association had not yet occurred. This fact is fatal to the EEOC’s prima facie case.”
Further, even if the plaintiff could bring an association discrimination claim for a potential future association with a disabled individual, the ADA clearly requires that such an individual have a “known disability,” the court added.
“The ADA does not establish a cause of action for discrimination against an individual who associates with people who are merely regarded as disabled,” Judge Scriven wrote. “Lowe expressly pleads in her charge that she was not planning to associate with any people who were known by [the owner] to have Ebola. Indeed, it is central to the EEOC’s theme of the case, as articulated in its complaint and opposition to the Motion to Dismiss, that [Massage Envy’s owner] was woefully ignorant in his beliefs and resulting bias that people in Ghana have Ebola. His behavior in terminating Lowe based on this nescience and Massage Envy’s support of him in this behavior, although deplorable, are not actionable under the statute.”
The court dismissed the suit and denied the EEOC’s motion to file an amended complaint, finding the effort would be futile.
To read the order in EEOC v. STME, LLC, click here.
Question
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Judy Greenwald
Article
A federal district court has dismissed an Americans with Disabilities Act lawsuit filed by an employee who was terminated after his employer learned he was taking both prescription morphine and nonprescription opioids.
Robert Sloan worked for Tipp City, Ohio-based Repacorp Inc., which manufactures labels with the use of heavy machinery, from March 2007 to February 2014, according to the Feb. 27 ruling by the U.S. District Court in Dayton, Ohio, in Robert Sloan v. Repacorp., Inc.
He spent about 10%-20% of his time working with heavy machinery, which was indisputably very dangerous, according to the ruling.
Repacorp’s employee handbook requires all employees to notify management if they are taking nonprescription or prescription medication, and Mr. Sloan understood that testing positive for these could result in his termination, according to the ruling.
In the year prior to his hiring, though, Mr. Sloan began taking morphine for neck and back pain, but did not tell his supervisors. He also admitted taking Vicodin, an opiate pain medication, on at least two occasions at work, according to the ruling.
After his company learned of his drug use, Mr. Sloan voluntarily submitted to a drug test and tested positive for hydrocodone, the opiate found in Vicodin. He was put on leave in February 2014 and terminated less than two weeks later.
Mr. Sloan filed suit on charges including disability discrimination and retaliation under the ADA. The court granted Repacorp summary judgment dismissing the case.
Mr. Sloan alleges he was disabled because of degenerative disc disease and arthritis in his neck and back and fired because of his disability, said the ruling.
The ruling said the company’s president had asked Mr. Sloan to consult with his doctor to determine if there were any alterative medications or treatments for his pain that did not include opiates, but Mr. Sloan responded he needed to stay on his medication and would not stop taking it.
“It appears undisputed that Sloan failed to cooperate with (the president’s) reasonable request for additional information concerning Sloan’s alleged disability,” said the ruling.
“While Sloan argues that Repacorp discriminated against him for terminating his employment without properly determining that he posted a ‘direct threat’ while under the influence of morphine…Sloan overlooks Repacorp’s main point, i.e. that Sloan’s employment ended not because Repacorp concluded he was a direct threat to himself or others, but because Sloan impeded its ability to investigate the extent of his disability and determine whether his disabling pain required use of prescription morphine, or whether a non-opiate medication could reasonably accommodate his disability,” said the ruling.
“In other words, Sloan failed to cooperate and/or participate in the interactive process required of all employees requesting accommodations under the ADA,” said the ruling, in granting the company summary judgment in the ADA discrimination claim. The retaliation claim was dismissed as well.
COPYRIGHT � 2018 BUSINESS INSURANCE HOLDINGS
Resources
In Focus
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Rachel Mucha December 4, 2017
National ADA Symposium June 17-20, 2018 Pittsburgh, PA Wyndham Grand Hotel
Features
-Six Pre-Conference Sessions
-100 Breakout Sessions
-Five Advanced Workshops
-Three Lunches & Two Buffet Breakfasts
Venue/Fees
Wyndham Grand Pittsburgh Downtown
1 412-391-4600
Registration Fee: Early Rate: $750 Regular: $900
Trainings and Events
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ADA Legal Webinar Series
Disability Harassment in the Workplace
March 21st, 2018 1-2:30 CT.
While the recent #MeToo and #TimesUp movements shed light on workplace sexual harassment; employers remain less familiar with risks associated with workplace disability harassment. Southwest ADA Center Legal Specialists Diego Demaya and Sashi Nisinakaro will discuss the growing trend of disability harassment in the workplace.
Speakers:
For more information visit
AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
AccessibilityOnline Webinar Series
Accessible Shared Streets: Notable Practices and Considerations for Accommodating Pedestrians with Vision
Thursday, April 5th, 2018 1:30-3:00 CT.
The U.S. Federal Highway Administration (FHWA) has released a report that provides an overview of practices and considerations for accommodating pedestrians with vision disabilities on shared streets, which are streets in which pedestrians, bicyclists, and motor vehicles intentionally mix together. This session will describe the specific challenges pedestrians with vision disabilities face when navigating shared streets and the strategies they employ, and discusses ideas on how accessibility for pedestrians with vision disabilities can be addressed in the planning and design process.
Speakers:
Daniel Goodman Transportation Specialist, Federal Highway Administration (FHWA)
Scott Windley Accessibility Specialist, Office of Technical and Information Services
For more information visit
AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
Recreation Facilities – A Refresher
Thursday May 3rd, 2018 1:30-3:00 CT.
This session will provide a refresher on the requirements common to both the ADA and ABA for recreation facilities. The presenter will provide an overview of the criteria for accessible recreation facilities, including play areas, swimming pools, sports facilities, fishing piers, boating facilities, golf courses, and amusement rides.
Speakers:
Bill Botten Accessibility Specialist/Office of Technical and Information Services, US Access Board
