News From the Federal Agencies

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U.S. Access Board

Access Board to Hold Town Hall Meeting and Training in Indianapolis on May 21

The Access Board will hold a town hall meeting in Indianapolis on the afternoon of May 21 at Bankers Life Fieldhouse. The event will provide an open forum where members of the public can pose questions to the Board or share comments or concerns about accessibility for people with disabilities. There also will be panel discussions with area speakers on accessible recreation and outdoor environments, the Indiana AgrAbility Project, and local compliance initiatives under the Americans with Disabilities Act (ADA).

The event will take place in the Pacers Square Room at Bankers Life Fieldhouse from 2:00 pm to 4:30 pm. Registration is not required. An assistive listening system, computer assisted real-time transcription (CART), and sign language interpreters will be available. Attendees are requested to refrain from using perfume, cologne, and other fragrances for the comfort of all participants. The meeting will not be streamed online, but there will be a call-in option and streaming CART.

Earlier in the day, the Board will also offer free training sessions on the ADA Accessibility Standards at the town hall site. There will be a program on how to apply the standards and common sources of confusion (9:00 am – 10:30 am). This will be followed by a session on recreation facilities and outdoor sites (10:45 am – 12:15 pm). Advance registration is not required, and participants can attend either or both sessions. Qualified attendees can earn continuing education credits (1.5 per session) from the American Institute of Architects.

For further information, contact Dave Yanchulis at yanchulis@access-board.gov, (202) 272–0026 (v), or (202) 272–0027 (TTY).

U.S. Equal Employment Opportunity Commission (EEOC)

Registration Now Open for the EEOC EXCEL Training Conference

The Equal Employment Opportunity Commission (EEOC) announced a list of some of the featured keynote speakers at the annual EXCEL (Examining Conflicts in Employment Laws) training conference to be held in Atlanta from July 30-August 1, 2019.

Some of the featured speakers include: Dr. Bernice King, the daughter of Dr. Martin Luther King, Jr. & Coretta Scott King, CEO of the Martin Luther King, Jr. Center for Nonviolent Social Change; EEOC Acting Chair Victoria A. Lipnic; world-renown presidential historian, public speaker and Pulitzer Prize-winning author, Doris Kearns Goodwin; and Dr. Chris Haffer, director of the EEOC’s Office of Enterprise Data and Analytics.

The 22nd EXCEL conference, themed Respect, Opportunity, Inclusion is an annual training conference featuring a wide range of workshops on cutting edge issues in the federal EEO arena. EXCEL also presents a series of courses resulting in required certificates for federal EEO professionals. Attendees can attend workshops in specific tracks designed for alternative dispute resolution participants, equal employment opportunity professionals, and agency and complaint representatives.

Registration for the conference is open, with spots in the popular workshops filling up fast. Registration questions can be directed to 1(866) 446-0940 or 1(800) 828-1120 (TTY) or eeoc.traininginstitute@eeoc.gov.

Walmart Stores East, LP to Pay $10,000 to Resolve EEOC Discrimination Finding

Walmart Stores East, LP will pay $10,000 and furnish other relief to resolve a disability charge filed by the Indianapolis District Office of the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. The EEOC’s investigation found reasonable cause to believe that the Walmart Stores East, LP store #2787 in Indianapolis refused to provide a reasonable accommodation to an employee with a disability. As a result, the employee was forced to resign, the EEOC said.

Crain Automotive Holdings to Pay $27,100 to Settle EEOC Disability Discrimination Lawsuit

Crain Automotive Holdings, Inc., headquartered in Sherwood, Ark., will pay $27,100 to a former employee as part of the settlement of a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s lawsuit, the company refused to provide a medical leave of absence as an accommodation to an employee who suffered from anxiety and depression and then fired her because of her disability.

Remedy Intelligent Staffing and Lornamead to Pay $50,000 to Settle EEOC Disability Discrimination Suit

Remedy Intelligent Staffing, LLC, a California-based staffing firm, and Lornamead, Inc., a manufacturer headquartered in New York City, will pay $50,000 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 Remedy and Lornamead violated federal law when they refused to provide a reasonable accommodation to a long-term temporary employee that would have enabled him to continue to work after his kidney condition worsened, and instead ended his employment.

Cooper Machine Company to Pay $20,000 to Settle Disability Discrimination Lawsuit

Cooper Machine Company, Inc., a Wadley, Ga., company that sells and manufactures equipment used in the sawmill industry, will pay $20,000 and provide other relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. According to the EEOC’s lawsuit, on or about April 17, 2017, Janet Bryant, who worked for the company as a purchasing agent, was fired by the company’s chief financial officer after informing the company that she was required to take medication because of her disability, anxiety disorder.

Universal Diversified to Pay $30,000 to Settle EEOC Disability Discrimination Lawsuit

Universal Diversified Enterprises, Inc. and Universal Diversified Solutions LLC, Miami-based sheet metal fabrication and installation companies, have agreed to pay $30,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s lawsuit, a sheet metal worker / installer lost his left eye in injury sustained outside of the workplace. After recovering from the injury and being cleared to return to work by his medical provider, his employer, without any assessment, refused to allow him to return to work.

Golden Corral to Pay $31,000 to Settle EEOC Disability Discrimination Suit

A Golden Corral restaurant franchisee located in Augusta, Ga., will pay $31,000 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 EEOC’s lawsuit, B. Fehr, LLC, doing business as Golden Corral, fired Alicea Cruce in May 2016 after it accused her of “being unwilling or unable to control her epilepsy.”

Party City to Pay $155,000 to Settle EEOC Disability Discrimination Lawsuit

Party City Corporation, a Rockaway, N.J.-based national discount and costume retailer, will pay $155,000 and provide other nationwide and regional relief to settle a discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. The EEOC’s lawsuit, filed in September 2018, charged that Party City violated federal law by failing to hire a qualified employee with a disability at its Nashua, N.H., location after it became aware that she required a job coach as a reasonable accommodation for her disability.

New ‘Digest of EEO Law’ Issued by EEOC

The U.S. Equal Employment Opportunity Commission (EEOC) announced the newest edition of the federal sector Digest of Equal Employment Opportunity Law (EEO Digest), is now available on the EEOC’s website

Safeway to Pay $75,000 to Settle EEOC Disability Discrimination Lawsuit

National grocery store chain Safeway, Inc. will pay $75,000 and make significant changes to its policies and hiring practices to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, Joel Sibert applied online in July 2017 for several jobs at Safeway Store #1551 in Seattle’s Capitol Hill neighborhood and was selected for an interview based on his qualifications and experience working similar jobs. However, once Sibert explained that he is deaf and would need an interpreter for the interview, the in-store hiring recruiter told him she did not know anything about providing an interpreter and then never got back to him about the interview.

U.S. Department of Justice (DOJ)

OVER $3 MILLION PAID TO INDIVIDUALS IN DISABILITY SETTLEMENT WITH GREYHOUND

The Department of Justice announced that payments totaling $2,966,000 were issued to over 2,100 individuals who experienced disability discrimination while traveling or attempting to travel on Greyhound. The payments were part of a broader settlement from 2016 resolving the Department’s complaint that Greyhound Lines Inc., the nation’s largest provider of intercity bus transportation, engaged in a nationwide pattern or practice of violating the Americans with Disabilities Act (ADA) by failing to provide full and equal transportation services to passengers with disabilities. The alleged violations included failing to maintain accessibility features on its bus fleet such as lifts and securement devices; failing to provide passengers with disabilities assistance boarding and exiting buses at rest stops; and failing to allow customers traveling in wheelchairs to complete their reservations online.

U.S. Attorney’s Office Settles Disability Discrimination Allegations Related to the CPA Exam

The U.S. Attorney’s Office has reached an agreement with the American Institute of Certified Public Accountants (AICPA) and the National Association of State Boards of Accountancy (NASBA) related to testing accommodations for individuals who are blind or have low vision who take the Uniform Certified Public Accountant Exam (the CPA exam). This agreement resolves allegations of discrimination on the basis of disability under Title III of the Americans with Disabilities Act (ADA).

The Docket

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Minnesota Court Clarifies Key Difference Between Federal and State Discrimination Laws

Lexology

Employers in Minnesota should be aware of a key difference between federal and Minnesota employment law. In McBee v. Team Industries, Inc., the Minnesota Supreme Court held that, unlike the federal Americans with Disabilities Act (ADA), the Minnesota Human Rights Act (MHRA) does not require employers to engage in an interactive process before deciding whether to accommodate an employee who claims to have a disability.

The interactive process is a duty that the ADA places on employers and employees alike. In order to discharge this duty, both employer and employee must engage in a good faith back-and-forth in order to determine whether there is a reasonable accommodation that the employer can grant a disabled employee to allow that employee to keep working.

In McBee, the Minnesota Supreme Court held that no such obligation extended to employers under the MHRA. The plaintiff in McBee worked as a machine operator in the defendant’s plant. This job required the plaintiff to regularly move and lift objects that weighed thirty-pounds or more. After sustaining an injury to her spine, the plaintiff’s doctor placed a ten-pound lifting restriction on the plaintiff. The day after informing the defendant of this restriction, the plaintiff met with human resources to discuss possible accommodations and—when none were found—the plaintiff was terminated. The plaintiff brought suit and, on appeal before the Minnesota Supreme Court, she argued that the MHRA required employers to engage in an interactive process and that the defendant failed to meet that requirement. The Minnesota Supreme Court rejected this argument, noting that the MHRA had no such requirement and was not similar enough to the ADA for an analogy between the two laws to be relevant.

The scope of the MHRA and the ADA are similar—but not coextensive—and this decision is particularly significant for employers covered only by the state law. The McBee decision does not impact the duties of employers under federal law, which still requires an interactive process. That being said, while the two statutes have a similar scope, their coverage is not coextensive. For example, the ADA only applies to employers with fifteen employees or more, whereas the MHRA extends to all employers. For those employers covered only by the state law, the McBee decision represents a wholesale change in their duties, not just their potential liabilities.

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Question

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The National Law Review

Can we terminate an employee when he or she does not return from FMLA leave?

Employers also are hesitant, and rightfully so, in what actions to take when an employee does not return from FMLA leave when expected.

Again, the answer to this question heavily depends on the specific facts related to the employee. Under the Family Medical Leave Act (“FMLA”), qualified employees are eligible for up to 12 weeks of job-protected leave within a 12-month period. If an employee does not return to work once his or her FMLA leave is exhausted, the employer should consider several factors before pursuing termination of employment.

At the outset, the employer must determine whether the employee’s request to remain out of work is a request for an accommodation under the Americans with Disabilities Act (“ADA”). This will involve outreach to the employee and a request for medical certification so that the employer can determine whether a reasonable accommodation, such as continued leave, is available. Requests for discrete time periods of leave are typically considered reasonable accommodations under the ADA; however, the employer is not required to accommodate the leave under the ADA if it presents an undue hardship, such as when the leave is open-ended with no set duration. This requires careful analysis, and it is recommended that the employer consults with legal counsel prior to making the decision to grant or deny the requested leave accommodation.

Alternatively, if the employee desires to stay out of work beyond approved FMLA and it is not for disability or medical purposes, then the employer must consider whether it has allowed similar types of leave in the past. For example, if an employer has an unpaid leave of absence policy and has previously provided other employees with such leave, the employer must ensure it applies the policy consistently among employees. Otherwise, the employee requesting leave beyond FMLA could allege that he or she is being treated differently based upon membership in a protected class.

Of course, other considerations will depend on the particular situation, but the following are a few steps employers can take to stay ahead of this issue:

Develop clear policies for how the employer complies with FMLA and ADA requirements. If the employer chooses to provide paid time off or other leaves of absences, these policies must also be clear and describe how they interact with other types of leave.

Apply the policies as written and consistently among all employees.

This includes ensuring that managers are trained to adhere to any approval process the employer has put in place, instead of arbitrarily granting or denying leave requests.

Communicate in writing with employees who take extended leave under the FMLA, ADA or any leave of absence to ensure both the employer and employee understand expectations, such as payment of benefits and return-to-work timing.

What do I do if an employee brings an animal into the workplace?

A manager calls Human Resources stating that an employee brought a dog into the office and, while the dog is not bothering anyone at the moment, the manager is unsure what to do. How should Human Resources advise the manager?

First, since the dog was brought into the office, Title I of the ADA permits the manager to ask the employee whether the employee is a service animal or a pet. If the latter, then the employer needs to have a clear policy on whether pets are allowed in the workplace, and apply that policy consistently to all employees. If the former, and the employee states he or she has a need for a service animal, then the manager must engage in the interactive process under the ADA. As briefly described above, this will involve seeking appropriate medical documentation and evaluating whether the employer can accommodate the request without creating an undue hardship to the employer.

Generally speaking, service animals typically will be viewed as a reasonable accommodation under the ADA in the employment context.

However, some confuse ADA requirements concerning service animals in the workplace as compared to service animals in places of public accommodation. For example, if the employer operates a place of public accommodation, such as a restaurant, it must train its employees on Title III of the ADA, which allows service animals to come into any such public place. If an employee is unsure whether an animal meets the definition of a service animal, the ADA allows the employee to ask the patron only two questions: (1) Is the animal a service animal required because of a disability? ( The National Law Review – National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558 Telephone (708) 357-3317

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For students with disabilities, in-class accessibility goes beyond paperwork

The Minnesota Daily

Faculty have to take extra steps to educate themselves on disability, but some say change is coming.

By Audrey Kennedy

For Angela Carter, disability is more than a field of study.

A Ph.D. candidate and instructor at the University of Minnesota studying feminism and disability studies, Carter identifies as a non-apparent disabled person.

“I think about disability sort of always,” she said. “I always knew I wanted to be an educator, but after becoming disabled [in college], it made me realize how inaccessible higher education was.”

Students with disabilities experience college life differently than able-bodied students, dealing with accessibility issues, lack of training and education about disability and negative campus culture.

But while faculty and students have shared the need for changes and updates, many say major systemic changes at the University are few and far between.

Almost 4,000 students are registered with the Disability Resource Center, though not every student with a disability is registered. Many students who can request accommodations don’t know where to go or question if they are “disabled enough” to receive them, said Richard Allegra, associate director of education and outreach services at the National Center for College Students with Disabilities.

“It can’t just be the DRC or student groups working on [education and advocacy]. It needs to be an all-campus approach … so administration, faculty, everyone can learn how to help and how to make campus more welcoming,” Allegra said.

University of Minnesota Senate committee members greenlighted a resolution last month that would instate mandatory disability training for faculty.

It’s a great prospect, but still just the start, Carter said.

“A lot of students have mixed experiences, and some professors just don’t understand why disabled students need support. Campus culture needs to come to an understanding that folks with any disability are just as valid as others … they just need support to level the playing field,” she said.

The Disabled Student Cultural Center is seen on the second floor of Coffman Union on Tuesday, April 30. The center provides a place for disabled students to commune, cook and take a break during their school day.

Adapting the classroom

As an instructor at the University, accessibility is essential in Carter’s classes. Her list of upfront classroom accommodations is extensive — she wants to be inclusive to people of all abilities from the beginning, she said.

All of her handouts can be read by screenreaders, videos are always captioned, groups are chosen by her to avoid anxieties and tests are take-home.

While she’s still learning how to best accommodate a diverse range of needs, Carter said the response from students has been appreciative. She’s been told her classes are unlike most other instructors, and students feel like they can be open with her about their disability status.

“I’m constantly learning and constantly thinking about [accessibility]. I always want to learn more … we all make mistakes in the process, but my students see that I’m trying and I can adapt,” she said.

But Carter’s class isn’t the norm. Many disabled students on campus have described receiving pushback from faculty or classmates because of their requests.

Carter Greenland, who identifies as a disabled person, said they’ve been met with resistance when discussing accommodations from professors throughout their years in school.

Greenland said one instructor failed their paper, then told them if they hadn’t disclosed their disability beforehand, the instructor would have assumed Greenland was illiterate.

“Even in high school, I couldn’t get accommodations for the longest time because they told me I wasn’t failing my classes. Like, that’s the goal, right?” Greenland said.

Part of Carter’s resolve to be adaptive as an instructor is because she’s been where her students are; she has had supportive professors who understood why she needed extra time, while she said others questioned why she needs accommodations if she can still write great papers.

“I’ve had some people push back, and I’ve had other people that understood that they don’t have to understand. They just have to support me and meet my accommodations,” she said.

Current training

The Senate resolution would mandate disability training for faculty, but Carter said while it would be helpful it could also lead to strain on resources for the Disability Resource Center. The DRC has already battled with space for students to test, and adding an entire infrastructure for creating training would require funding they may not receive.

Carter took spring semester off from teaching to instruct at a school in Missouri. She said not much has changed for faculty in her years at the University. She said any training on disability accommodations has always been optional, and most training she has found she had to seek out herself.

The resolution would create training videos for faculty that would contain information on federal mandates regarding disability, the process of obtaining a letter from the DRC and how to address accommodations, co-founder of the Organization for Graduate and Professional Students with Disabilities Ryan Machtmes said.

“The student experience and student perspective should, and will be, front and center, so the faculty [will] have an improved understanding of what their students face and the processes that they go through,” Machtmes said.

Campus training is crucial, but it’s frequently lacking at universities across the country, Allegra said. NCCSD, a federally-funded center, provides assistance and information for anyone learning about disability, whether it be prospective students, parents or faculty. And while some instructors have pushed back against student accommodation requests, Allegra said the vast majority just don’t know what to do.

“Many faculty, when a student tells them in office hours that they need extra time or have an accommodation letter, become deer in the headlights. They don’t know how to handle that,” Allegra said.

Finding or creating spaces

But while most universities have basic accommodations, many say campuses need more. Support from faculty and administration is vital, but social spaces and groups for students with disabilities should be a major point, Allegra said.

“There’s a need for help, but also for a sense of belonging. Students may want to connect with others and identify themselves as a part of a group, but there’s not always a place for that,” Allegra said.

Until a few years ago, many major groups for students on campus with disabilities were defunct or non-existent. The Disabled Student Cultural Center was inactive until recently. It now hosts accessible game nights, advocacy events and discussion hours on topics like accessibility and representation. Some felt there wasn’t a place for them to discuss disability.

For Machtmes, co-founding OGPSD meant building from the ground up. In the past two years, the group’s meetings have grown from five members to 80. In addition to working with other organizations to craft the Senate resolution to improve training, they’re starting the process of documenting all spots on campus with accessibility problems.

“We’re cataloging with geolocation, date and time the various physical facilities with accessibility issues. Hopefully, video evidence en masse [presented] to campus administrative officials will cause them to address those critical needs,” Machtmes said.

Carter co-founded the Critical Disability Studies Collective in 2015. The group examines disability as a distinct culture instead of something that needs to be fixed, which Carter said wasn’t frequently discussed on campus.

“It’s not just something to study in the applied fields like counseling, rehabilitation or medicine,” she said. “It intersects with all of those other vectors of privilege and oppression, race, class, gender and sexuality.”

But as outreach and education on disability continue to grow, those on campus should remember to not assume anything about those with disabilities, Carter said. Some may not identify as a disabled person, others may not want to register with the DRC and some prefer not to talk about their disability at all.

“[You should] listen to disabled people’s experiences from disabled people, and not assume we can’t do things just because we’re disabled. Instead of making assumptions, don’t be afraid to ask us or talk to us,” Carter said. “Don’t assume you know what’s better for them than they do.”

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