All are welcome to attend the next bimonthly meeting of the U.S. Access Board, which will be open to the public and take place virtually on March 9 from 1:00 – 2:15 p.m. (ET). The agenda for the meeting includes the Board’s annual election of officers, updates from federal member agencies, reports from Board committees and the Executive Director, and a guest presentation from Assistant Attorney General Kristen Clarke of the U.S. Department of Justice.

Phil Bratta Named U.S. Access Board’s Public Affairs Specialist

Phil Bratta has been appointed Public Affairs Specialist for the U.S. Access Board in the Office of Executive Director (OED). In this role, Bratta will design, plan, and direct the Board’s public affairs program that includes managing its external communication channels, developing informational materials, handling media relations, leading outreach activities, and serving as point of contact for legislative affairs to explain accessibility and the work of the Board.

U.S. Equal Employment Opportunity Commission (EEOC)

TrueBlue and PeopleReady to Pay $125,000 to Settle EEOC Disability Discrimination Suit

TrueBlue, Inc. and PeopleReady, Inc., labor sourcing companies with offices across the United States, will pay $125,000 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, the companies fired an employee because of her psychiatric disability.

Groendyke Transport / McKenzie Property Management to Pay $65,000 to Settle EEOC Disability Suit

A trucking company and a property management company will pay $65,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. The defendants in the EEOC’s case are Groendyke Transport, Inc., one of the largest tank truck carriers in the United States, headquartered in Enid, Oklahoma, and McKenzie Property Management (formerly known as McKenzie Tank Lines, Inc.), headquartered in Tallahassee, Florida. The EEOC said that Groendyke’s predecessor, McKenzie Tank Lines, failed to provide a reasonable accommodation and fired two long-term employees because of their disabilities.

Ranew’s Management Company to Pay $250,000 to Settle Disability Discrimination Lawsuit

Ranew’s Management Company, Inc. (“Ranew’s”), a local, state, and national provider of fabrication, coating, and assembly products, will pay $250,000 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 suit, a Ranew’s employee informed the company of his diagnosis of severe depression and requested to take three weeks off work, per his doctor’s recommendation. Ranew’s CEO told the employee to take as much time as he needed to get well. However, six weeks later, when the employee tried to return to work, presenting a release to return to work from his doctor, the CEO said he could not trust the employee to perform his job duties and instead fired him.

EEOC Sues Pneuline Supply for Disability Discrimination and Retaliation

Greeley, Colorado parts manufacturer Pneuline Supply, Inc., fired an employee who has a severe hearing impairment because of her disability and/or need for accommodation and in retaliation for requesting an accommodation and complaining about discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed.

U.S. Department of Justice (DOJ)

Justice Department Issues New Guide on Ballot Box Accessibility

This six page document is a technical assistance publication on the accessibility of ballot drop boxes for voters with disabilities. The publication includes a survey to guide election officials in evaluating the accessibility of ballot drop boxes used or being considered for use in elections and is a companion piece to the ADA Checklist for Polling Places.

Justice Department Resolves Lawsuits to Ensure Equal Access to Health Care for People with HIV

The Justice Department announced that it has filed proposed consent decrees with two obstetrician-gynecologist (OB/GYN) doctors in Bakersfield, California. The consent decrees, which are subject to approval by the U.S. District Court for the Eastern District of California, resolve the department’s lawsuits against the doctors, Umaima Jamaluddin MD, and Chibuike Enyereibe Anucha MD, PC, under the Americans with Disabilities Act (ADA). The department sued Dr. Jamaluddin and Dr. Anucha alleging violations of the ADA based on their refusal to provide routine medical care to a patient because the patient has HIV.

U.S. Attorney’s Office Settles Housing Discrimination Lawsuit Against Dansville Rental Property Owners

U.S. Attorney Trini E. Ross announced that a settlement agreement has been reached with the current and former owners of Midtown Motel, LLC, a residential rental property in Dansville, NY, who were named as defendants in a Fair Housing Act complaint. The Government alleged that the owners of Midtown Motel discriminated against Cheryl Martinez based on her disability by refusing to rent to Martinez because of her assistance animal.

Killeen Hotel to Pay Damages to Disabled Veteran with Service Dog

U.S. Attorney Ashley C. Hoff of the Western District of Texas announced that the United States has reached an agreement with the owners and managers of Executive Inn & Suites, a hotel in Killeen, Texas, to resolve allegations they violated the Americans with Disabilities Act (ADA) by denying equal access to individuals with disabilities who use service dogs.

Justice Department Files Statement of Interest in NFB v. Uber

The Statement of Interest was filed to clarify the scope of Title III as applied to private entities primarily engaged in providing specified public transportation services, including entities that operate a demand responsive system.

Justice Department Sues Pennsylvania Court System

The Justice Department has filed suit against the Unified Judicial System of Pennsylvania (UJS) for violating the ADA by prohibiting the use of lawfully prescribed medication to treat Opioid Use Disorder by individuals under court supervision.

U.S. Attorney’s Office Resolves ADA Investigation of Ascension Providence Hospital and Related Medical Facility

The U.S. Attorney’s Office for the Eastern District of Michigan has resolved its investigation into allegations that Ascension Providence Hospital and an Ascension-affiliated medical facility, Washington Primary Care, violated the Americans with Disabilities Act (ADA) by denying patients with disabilities from bringing their service animals into their facilities, U.S. Attorney Dawn N. Ison announced.

The agreement resolves two complaints received by the U.S. Attorney’s Office. The first alleged that Ascension Providence Hospital refused to allow a service dog to accompany a patient with a disability into the pre- and post-operative areas of the hospital. The second alleged that a doctor at Washington Primary Care refused to allow a patient to bring her service dog into an examination room, demanded to see “paperwork” for the animals, and told the patient that she would not continue treatment if she insisted on bringing her service animal.

In Focus

Competition to design new Symbol of Accessibility

The International Union of Architects and Rehabilitation International (RI) are jointly inviting submissions for a twenty-first century symbol of accessibility to represent their core values of rights and inclusion, independence, physical and virtual accessibility for all, including people with disabilities.

The challenge is therefore to develop a new symbol of accessibility that better represents the variety of people who use buildings and other types of built environments. The competition invites professional architects and graphic designers as well as architectural and graphic design students to design a new graphic symbol of accessibility, to be proposed to the International Organization for Standardization (ISO) for adoption as the new international symbol of accessibility.

The Docket

Americans with Disabilities Act–Direct Threat Analysis

On February 11, 2022, the 7th Circuit affirmed an order of summary judgment in favor of an employer in a disability discrimination lawsuit under the Americans with Disabilities Act (“ADA”). Pontinen v. US Steel Corporation, No. 21-1612 (7th Cir. Feb. 11, 2022). The employer rescinded an offer of employment after determining that the potential employee’s disability–seizure disorder–posed a direct threat to himself and to others in the workplace. The 7th Circuit concluded that summary judgment was appropriate because the undisputed evidence demonstrated that the disability was not the ‘but for’ cause of the rescission of the job offer.

The ADA prohibits an employer from discriminating against a qualified individual with a disability on the basis of his or her disability, including with respect to hiring decisions. A qualified individual is a person who can perform the essential functions of his or her job with or without reasonable accommodation. The ADA prohibits an employer from asking a job applicant disability-related questions, unless and until it extends a provisional job offer to the applicant. Qualifying standards that tend to screen out individuals with disabilities are impermissible under the ADA, unless they are job-related and consistent with business necessity. Accordingly, a requirement that an individual does not pose a direct threat to the health or safety of herself or others in the workplace is permissible under the ADA, even if it tends to discriminate.

In this case, after the employer made an employment offer to the applicant, it learned of his disability, determined that the disability posed a direct threat to himself and others, and, consequently, rescinded the job offer. The ‘direct threat’ is an exception under the ADA that provides a justification for an employer to take adverse job action on the basis of a disability, including rescission of a job offer, when the disability poses a danger to the health or safety of the employee or others in the workplace.

The 7th Circuit discussed and explained the legal analysis and standards for the ‘direct threat’ exception. A direct threat is a substantial risk of serious harm that cannot be eliminated or reduced through reasonable accommodation. An individualized assessment of the employee’s present ability to perform the essential functions of the job is required to make an appropriate determination. The individualized assessment must be based on adequate and competent medical evidence. The following factors are considered: (i) the duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm. The 7th Circuit concluded that the uncontrolled nature of the plaintiff’s seizure disorder, in connection with the “safety-sensitive” position of Utility Person, which included, among other things, working with hazardous materials, created an intolerable risk that justified the employer’s rescission of its offer of employment.

Question

Q. Is an employer required to reassign an essential function of a job to another employee as a reasonable accommodation?

A. No. An employer is not required to reallocate essential functions of a job as a reasonable accommodation. In order for an employee with a disability to be considered qualified he/she must:

satisfy the requisite skill, experience, education and other job-related requirements;
perform the essential functions of a position with or without reasonable accommodation

Example: Daniel works as a millwright, and an essential function of his job is repairing and maintaining equipment. Most of the equipment is accessible only by climbing ladders and steps. Due to a recent disability, Daniel no longer can climb and must work only at ground level. The location of the equipment does not allow alternative means to elevate Daniel (e.g., using a cherry picker). With no reasonable accommodation possible, Daniel cannot repair the equipment (an essential function). Daniel is not “qualified” to remain in this position and the employer should explore whether it can reassign him as a reasonable accommodation.

Resources

Applying Performance and Conduct Standards to Employees with Disabilities

Chronicle Archive