News From the Federal Agencies

| News | Docket | Question | Focus | Calendar |

U.S. Access Board

Inclusive Design of Autonomous Vehicles: A Public Dialogue

the U.S. Access Board, in partnership with other federal agencies, will host a series of virtual meetings on making autonomous vehicles (AVs) accessible to passengers with disabilities. The four-part series will provide an open forum where meetings on making autonomous vehicles (AVs) accessible to passengers with disabilities. The four-part series will provide an open forum where members of the public and stakeholders can discuss considerations, challenges, and solutions in designing accessible AVs. All are welcome to attend.

U.S. Equal Employment Opportunity Commission (EEOC)

Optimal Solutions & Technologies Will Pay $60,000 to Settle Disability Discrimination Suit

Optimal Solutions & Technologies, Inc. (OST), a provider of cyber, engineering, logistics and managed services, will pay $60,000 and furnish significant equitable relief to resolve a federal disability discrimination suit by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s suit, a senior SharePoint administrator working at OST’s Hyattsville, Md., facility informed his supervisor that he had a benign brain tumor which would require about six weeks of radiation treatment, and that the treatments, which would be scheduled after work, would not affect his ability to perform his job. The EEOC charged that despite his good job performance, OST abruptly fired the administrator about one month after he disclosed his medical condition and only one week before he was scheduled to begin his radiation treatment.

EEOC Releases Fiscal Year 2020 Enforcement and Litigation Data

The U.S. Equal Employment Opportunity Commission (EEOC) has released detailed breakdowns for the 67,448 charges of workplace discrimination the agency received in Fiscal Year (FY) 2020. The agency secured $439.2 million for victims of discrimination in the private sector and state and local government workplaces through voluntary resolutions and litigation.  The comprehensive enforcement and litigation statistics for FY 2020, which ended on Sept. 30, 2020, are posted on the agency’s website, which also includes detailed breakdowns of charges by state.

T&T Subsea Will Pay $125,000 to Settle EEOC Disability Discrimination Suit

T&T Subsea, LLC, a Galveston marine services company, will pay $125,000 and furnish significant equitable relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the suit, after being diagnosed with cancer, the commercial diver continued to work for T&T through his chemotherapy and radiation treatment until he took leave for surgery. When he notified T&T that he was ready to return to full duty, the company fired him.

EEOC Sues Saint Clare’s Health for Disability Discrimination

Saint Clare’s Health, a division of Prime Healthcare Services that operates two hospitals in Morris County, N.J., violated federal law when it refused to accommodate a new employee’s sudden disability by delaying her start date, and withdrew her job offer instead, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed.

Cracker Barrel Old Country Store Will Pay $15,000 to Settle Disability Discrimination Lawsuit

Cracker Barrel Old Country Store, a major restaurant chain, will pay $15,000 and provide significant equitable 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 suit, an applicant who is deaf applied online for the position of dishwasher. When he appeared for his scheduled interview at the restaurant’s Linthicum Heights, Md., store, however, he was turned away by a manager and later formally rejected by the restaurant after repeated attempts to contact them. Despite this, he was able to achieve a successful employment history elsewhere in the restaurant industry, including as a dishwasher.

Pirtek USA to Pay $85,000 to Settle EEOC Disability Discrimination Suit

Pirtek USA LLC, a fluid power system company based in Rockledge, Fla., has agreed to pay $85,000 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 charged that Pirtek violated federal law by firing an employee because of a perceived disability.

U.S. Department of Justice (DOJ)

U.S. Attorney’s Office Settles Service Animal Dispute with Haddam Restaurant

the U.S. Attorney’s Office has reached a settlement agreement with the Brookside Bar and Grill in Haddam to resolve allegations that the restaurant was not operating in compliance with the Americans with Disabilities Act of 1990 (“ADA”). The settlement agreement resolves an ADA complaint filed by an individual with disabilities who relies on a service animal and who was a patron of the restaurant.  The complainant alleged that the restaurant asked her to show identification for the services animal and, on one occasion, asked her to leave the restaurant because of her service animal.

Under federal law, private entities that own or operate places of “public accommodation,” including restaurants, are prohibited from discriminating on the basis of disability.  The ADA requires that a public accommodation, such as a restaurant, modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

United States Reaches Settlement Agreement with Bucks County Summer Camp to Resolve Allegations of Disability Discrimination

Briarwood Recreation, Inc., d/b/a Briarwood Day Camp (“Briarwood”), located in Furlong, PA, resolved allegations that it violated the Americans with Disabilities Act by denying a child the opportunity to participate in summer day camp programs because of his Type 1 diabetes (also known as insulin dependent diabetes). The settlement resolves a complaint filed by parents of a young child alleging that, after the boy was diagnosed with Type I diabetes in 2017, Briarwood refused to permit him to continue to participate in the 2017 summer program, and also that Briarwood refused to consider and provide reasonable modifications that would allow the child to attend the 2018 summer day camp program.

The Docket

| News | Docket | Question | Focus | Calendar |

Companies Consider Transparent Face Masks as an ADA Accommodation During Pandemic

Dorsey & Whitney LLP

Lawsuits from the deaf and hard-of-hearing community may require companies to consider new reasonable accommodations during the COVID-19 pandemic, such as transparent face masks for employees and clean writing tools for customers, in order to comply with state and federal disability discrimination laws.

On September 22, 2020, the shoe company, Nike, Inc., was sued by a San Diego customer who is deaf after the customer was unable to communicate with an employee in a Nike retail store who was wearing an opaque face mask in compliance with Nike’s face mask requirements. According to court filings, the customer alleged that Nike violated state and federal law, including 42 U.S.C. section 12182(1)(A)(1), by denying “goods, services, facilities, privileges, advantages, or accommodations” to a person with a disability. The customer also alleged that Nike failed to provide auxiliary aids and services to ensure effective communication for customers, as required by 28 C.F.R. section 36.303(a).

Nike reached a settlement in the action, pending court approval, in which Nike has agreed to (1) pay $85,000 in attorneys’ fees and costs; (2) provide guidance to California store employees on how to accommodate customers who have difficulty communicating due to employees’ opaque face covering; (3) post notices in all California store entrances noting that accommodations are available for customers with hearing loss; (4) ensure that transparent face masks and clean writing tools are available upon request; and (5) pay the class plaintiff up to $5,000. Nike may still face additional monetary claims from class members as the proposed settlement will only resolve claims for injunctive relief, not compensatory or other damages.

Retail companies can proactively ensure that their employees are trained on how to respond to requests for accommodations from deaf and hard-of-hearing customers during the COVID-19 pandemic. If transparent face masks are not immediately available, employees can provide clean pens and paper to communicate with customers in order to minimize any liability under the Americans with Disabilities Act (ADA).

In addition, employers can also take steps to avoid employment-related disability claims by ensuring that transparent face masks and/or other auxiliary aids are available for employees who are deaf or hard-of-hearing.

Finally, companies should consider other areas in which new pandemic-related policies may adversely affect employees or customers with disabilities, such as specific social distancing requirements, virtual communications, and remote working policies.

Copyright © 2021 JD Supra, LL

Question

| News | Docket | Question | Focus | Calendar |

Q1: My restaurant was constructed in 1998 and has 2 toilet rooms. A customer told me that the rooms do not comply with the 2010 standards because the sinks are too close to the toilet/water closet. Do I have to alter my toilet rooms, so they comply with the 2010 ADA standards?

A. The 2010 ADA standards apply to any new construction or an alteration of an existingfacility/building on or after March 15th, 2012. The regulations implementing the 2010 ADA standards include an element by element safe harbor. This means that any facility/building that was altered or newly constructed in compliance with the 1991 ADA standards does not have to be altered to comply with incremental changes in the 2010 ADA standards.

The 1991 ADA standards allowed a sink/lavatory to overlap the clear floor space alongside the toilet/water closet. The 2010 ADA standards no longer allows this overlap. The toilet rooms in your restaurant would need to meet the 2010 ADA standards if they are being altered. If you are not planning to alter the toilet rooms and theycomply with the 1991 ADA standards,the rooms do not need to be changed. Safe harbor does not apply to spaces/elements not included in the 1991 ADA standards such as: play areas, swimming pools, recreational facilities. The entire list of spaces/elements not covered by safe harbor may be found in the title III regulations in section 36.304.

Resources
Nondiscrimination based on Disability in Public Accommodations and Commercial Facilities
2010 ADA Standards for Accessible Design
Accessible Toilet Rooms (Webinar Archive)

In Focus

| News | Docket | Question | Focus | Calendar |

2020 marked 7-year high unemployment rate for people with disabilities

AUTHOR: Ryan Golden, @RyanTGolden
PUBLISHED: March 2, 2021

Dive Brief:

Fewer U.S. persons with a disability were employed in 2020 with a total employment rate of 17.9%, down from 19.3% in 2019, according to data from the U.S. Bureau of Labor Statistics (BLS). That translated to an unemployment rate of 12.6% for persons with a disability, the highest such mark in seven years.

The decline amounts to a 5.3 percentage point increase year over year, compared to a 4.4 percentage point increase year over year for persons without a disability, who experienced an unemployment rate of 7.9% last year, up from 3.5% in 2019. “Data on both groups for 2020 reflect the impact of the coronavirus (COVID-19) pandemic and efforts to contain it,” BLS said in its analysis.

Persons with a disability were more likely to work in service occupations and occupations involving production, transportation and material moving in 2020 than those without disabilities, BLS noted. Many job categories within these areas experienced heavy losses last year. For example, employment in leisure and hospitality — which represented 8.3% of employed persons with a disability — fell by 8.2 million jobs in the first two months of the pandemic, and the sector remains 3.9 million below February 2020 levels, according to a report last month by BLS.

Dive Insight:

The agency’s data show a clear decline in employment for persons with a disability, though HR industry observers have noted that the pandemic may also have created some positive changes for this category of job seekers.

Accessibility to job opportunities has long been a challenge for individuals with disabilities. However, due to public health measures taken to limit the spread of COVID-19, many employers adopted hiring processes that are mostly or entirely virtual. Moreover, that adoption is expected to continue well into 2021. Combined with other measures to reduce bias in the hiring process, this change could vastly improve accessibility for individuals with disabilities, according to sources who spoke to HR Dive last year.

A similar change has occurred with respect to telework and other flexible work arrangements. The impact of remote work in 2020 could change, for instance, the compliance conversation about whether such arrangements could be considered reasonable accommodations under the Americans with Disabilities Act.

Still, there are steps that employers can take to support workers with disabilities during the pandemic. A 2020 report by the Association of People Supporting Employment First (ASPE) noted that many persons with disabilities work in essential categories of jobs, such as those in grocery stores and healthcare facilities.

“Many of these essential workers regularly rely on supports from job coaches and employment specialists to navigate changes in business practices and job responsibilities,” ASPE said. “These direct support professionals are crucial in ensuring the safety and health of people with disabilities.”

In an opinion piece to HR Dive, consultant Toby Mildon wrote that employers may want to reach out to their employees and listen to their experiences during the pandemic. Among other things, employers can also ensure that technologies adopted in the past year, such as online meeting platforms like Zoom, have accessibility features enabled, Mildon wrote.

© 2021 Industry Dive. All rights reserved.

Trainings and Events

| News | Docket | Question | Focus | Calendar |