September 2017
Volume 12 Issue 6 
 
 
 

Trainings & Events

AccessibilityOnline Webinar Series
Looking Ahead - "Frontier Accessibility Issues"
December 7th, 2017 1:30-3:00 CT.

Access Board members and staff continue to examine future trends, new products, and designs in terms of their impact on communication and facility access for persons with disabilities. This session will review some of the more recent trends and technologies that have caught the Board's attention. Some examples include prescription drug labeling, electric car charging stations, and adult changing tables. Session participants are encouraged to provide questions in advance about a future trend or technology.

Speakers:
Bill BottenAccessibility Specialist/Office of Technical and Information Services, US Access Board

For more information visit AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
Accessible Technology Webinar Series
Planning & Producing Accessible Videos for Web, Social Media & eLearning
July 20th, 2017 1-2:30 CT.
Want to create accessible videos? It all comes down to planning. Regardless of the final location (web, social media, eLearning…) videos require key components to enable everyone to access them. Learn about best practices for captioning and audio description; accessibility issues with video players; and what to consider as you plan your project.

Speakers:
Jennie Delisi Accessibility Analyst, Office of Accessibility
Jay Wyant Chief Information Acessibility Officer,Minnesota State CIO Office

For more information visit Accessible Technology at http://www.accessibilityonline.org/ada-tech or call (877) 232-1990
Section 508 Webinar Series
Revised Section 508 Chapter 4 Hardware (including Mobile)
July 26th, 2017

The revised Section 508 Standards and Section 255 Guidelines address many changes to technology that have occurred since 2000. Among the most significant changes are the widespread use of mobile technology and the increasing use of mobile devices to perform a variety of ICT functions.

Join us for this session where the presenters will focus on Chapter 4 Hardware. The presenters will discuss Closed Functionality, the new requirements for speech-output for ICT with display screens, privacy, operable parts, ICT with two-way voice communication, closed caption and audio description processing technologies and user controls and others. The presenters will also discuss sources for technical assistance and provide examples of how the hardware provisions may be implemented.

WHO SHOULD ATTEND: The intended audience for this training includes developers, federal procurement officials and everyone involved with implementing Section 508.


Speakers:
Bruce Bailey,Accessibility Specialist/Information Technology Specialist,US Access Board
Timothy Creagan ,Senior Accessibility Specialist/Information Technology, U.S. Architectural and Transportation Barriers Compliance Board (the Access Board)

For more information visit Section 508 at https://www.accessibilityonline.org/cioc-508/ or call (877) 232-1990
ADA Legal Webinar Series
Readily Achievable Barrier Removal Issues - focusing on small to mid-sized businesses

Removing barriers in existing facilities is an ongoing responsibility for many business owners. However, in recent years we have seen a steady increase in the number of Title III Lawsuits in the U.S. aimed at small businesses. At the heart of many cases are issues involving readily achievable barrier removal. Attorney Diego Demaya with the Southwest ADA Center will discuss readily achievable barrier removal requirements for businesses under ADA Title III. This session will review recent cases and how those decisions affect businesses and consumers as well as provide recommendations for how business owners can comply without much difficulty or expense. A legal update addressing so-called drive-by lawsuits will be provided including a look at developments such as the 99 drive-by lawsuits recently dismissed in the state of New Mexico.

Speakers:
Diego Demaya , JD, Legal Specialist, Southwest ADA Center at ILRU

For more information visit ADA Legal at http://www.ada-legal.org/ or call (877) 232-1990
AccessibilityOnline Webinar Series
Surface Roughness and Rollability Research
August 3rd, 2017 1:30-3:00 CT.

Rough and uneven surfaces can be uncomfortable, even painful, for people who use wheeled mobility aids. While there are ways to measure and analyze surface roughness for roadways, none are appropriate for pedestrian pathways. The Access Board funded a study that used subject testing to examine how the roughness of pathway surfaces impacts wheelchair travel. Conducted by the Human Engineering Research Laboratories at the University of Pittsburgh, the project measured body vibrations resulting from travel across various types of bumpy or uneven surfaces, including existing sidewalks and simulated surfaces. Results from this research were used in the development of a new ASTM standard on pedestrian surfaces. This session will discuss the research findings and the new ASTM standard.

Speakers:
Jon Pearlman Senior Accessibility Specialist/Coordinator of Public Affairs, US Access Board, Office of Technical and Information Services
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
AccessibilityOnline Webinar Series
Open Q & A
September 7th, 2017

This is a regular session in our webinar series that provides an opportunity to ask questions on any topic related to the Board's work and activities. Questions are welcome on the Board's accessibility requirements and rulemaking activities, including the ADA and ABA Accessibility Standards, new standards being developed for medical diagnostic equipment, and other topics related to the Board's work. Accessibility specialists will answer questions submitted in advance during the first half of the session, leaving time in the second half to answer questions in the live session.

Speakers:
Marsha Mazz Director, Office of Technical and Information Services, US Access Board
Rex Pace Senior Accessibility Specialist and Technical Assistance Coordinator,US Access Board

For more information visit AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
ADA Legal Webinar Series
Readily Achievable Barrier Removal Issues - focusing on small to mid-sized businesses
Reasonable Accommodation Update

Providing reasonable accommodations so that employees with disabilities can perform the essential functions of the job is one of the cornerstones of the ADA. However, the process for obtaining and providing reasonable accommodations can be confusing for employees and employers. This session will review the latest reasonable accommodation court decisions so that all stakeholders can better understand their rights and responsibilities.
Speakers:
Barry Taylor , Director of Legal Services,Equip for Equality
Rachel Weisberg , Staff Attorney, Equip for Equality

For more information visit ADA Legal at http://www.ada-legal.org/ or call (877) 232-1990
 

News from the Federal Agencies

U.S. Access Board

Deborah A. Ryan Elected Chair of the Access Board - United States Access Board

The Access Board unanimously elected Board Member Deborah A. Ryan of Boston as its new Chair on. Ryan is head of Deborah A. Ryan & Associates, an accessibility consulting firm that she founded in 2002.

Read More about Deborah Ryan as Chair of the Access Board=

U.S. Equal Employment Opportunity Commission (EEOC)

EEOC Files Suit against Big Lots Stores for Disability Discrimination and Retaliation

National retailer Big Lots Stores, Inc. violated federal law by condoning disability harassment and punishing an employee without disabilities for her association with a co-worker with disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. In its lawsuit, the EEOC charged that a retail employee with hearing and speech disabilities was subjected to harassment by her co-workers.

Read More about the EEOC Lawsuit against Big Lots=

UPCO Will Pay $106,000 For Disability Discrimination

A Claremore, Okla.-based manufacturer of sucker rods and accessories for the oil and gas industry will pay $106,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC),. According to the EEOC lawsuit, Lydia Summers began working as a temporary receptionist and assisting in the accounting department. After five months, UPCO made Summers a conditional offer of full-time, permanent employment, conditioned on Summers passing a pre-employment medical exam conducted by a third-party vendor. Following the exam, the vendor's physician, who never examined or questioned Summers, refused to approve her for employment with UPCO because of the supposed side effects of her prescription medications. Even after Summers provided UPCO with a letter from her personal physician stating that she was not impaired by her medications, UPCO rescinded its job offer, the EEOC alleged.

Read More about the Settlement between the EEOC and UPCO

EEOC Sues Asurion for Disability Discrimination

Asurion, LLC, a customer service support provider for electronic devices, violated federal law by refusing to hire an applicant at its former Meridian, Miss., location because she is a paraplegic, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC lawsuit, Lakisha Person applied for a customer care representative position online. After reviewing her application, Asurion telephoned Person to discuss her interest in and avail¬ability for a position at its Meridian location. According to the EEOC, when the Asurion interviewer learned that Person was paralyzed from the waist down, the interviewer abruptly ended the interview without inquiring into her skills and relevant work experience.

Read More about the EEOC Lawsuit

EEOC Sues Impressions Incorporated for Disability Discrimination

Impressions, Incorporated, a St. Paul-based design, printing and packaging company, violated federal law by requiring unlawful medical exams and then firing an employee because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed.

Read More about the EEOC Lawsuit against Impressions Incorporated

Medstar Harbor Hospital Will Pay $179,576 to Settle EEOC Disability Discrimination Lawsuit

Harbor Hospital Inc., trading as MedStar Harbor Hospital, will pay $179,576 and furnish other relief to resolve a federal disability discrimination lawsuit filed by the U.S. Equal Employ¬ment Opportunity Commission (EEOC), the agency announced. The EEOC said that MedStar Harbor Hospital violated federal law when it refused to provide a reasonable accommodation to and instead fired Jerome Alston, a respiratory therapist, because of his disability.

Read about the Settlement between Medstar Harbor Hospital and the EEOC

EEOC and Flying Star Transport Settle ADA Claims for $65,000

Amarillo, Texas-based fuel transport company has agreed to pay $65,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Oppor¬tunity Commission (EEOC), the federal agency announced. According to the EEOC lawsuit, Flying Star Transport violated federal law by denying hire to truck driver Robert Kallgren because he had had his arm amputated during his teenage years.

Read More about the Settlement between the EEOC and Flying Star Transport

EEOC Sues Tampa Massage Envy Franchise For Disability Discrimination

Massage Envy franchise in south Tampa, violated federal law prohibiting discrimination based on disability status by firing an employee for traveling to Ghana, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC lawsuit, company officials insisted Kimberly Lowe cancel her approved vacation plans because they feared her travel would lead to a potentially catastrophic outbreak of Ebola in the United States, and fired her when she refused to do so.

Read More about the EEOC Lawsuit against Massage Envy

U.S. Department of Justice (DOJ)

Justice Department Reaches Settlement with Dolgencorp, LLC

The Settlement agreement between the Justice Department and Dollar General resolves an investigation by the U.S. Attorney’s Office for the Southern District of Alabama. The agreement focuses on Dollar General Stores to maintain the accessible features of their facilities including accessible parking spaces and associated access aisle, accessible routes to the store entrance and accessible routes throughout the store.

Read the Settlement Agreement between DOJ and Dollar General Stores

Justice and Fill Building Associates, LLC Reach ADA Settlement Agreement

The United States Attorney's Office for the Eastern District of Michigan initiated an investation following the receipt of a complaint. The complaint alleged that an office building owned and by Fill Building Associates, LLC was inaccessible to individuals that use mobility devices because of architectural barriers. The group will provide properly identified and striped operated vehicle and van parking spaces, install signage at inaccessible entrances directing individuals to the location of an accessible entrance and provide accessible exterior routes.

Read the Settlement Agreement between DOJ and Fill Building Associates, LLC

Settlement Agreement between the Board of Election Commissioners for the City of Chicago and the Justice Department

In February the Justice Department conducted a compliance review of polling places under the control of the Board of Election Commissioners for the City of Chicago. Based on polling-place reviews conducted during the March 2016 Primary Election, the Justice Department concluded that many of the Board's "accessible" polling places as determined by rule of the State Board of Elections in fact contain, under the ADA, barriers to access for persons with mobility disabilities and persons who are blind or have other vision disabilities. The agreement in part requires that the Board shall maintain in operable working condition on Election Day and during Early Voting those features of facilities and equipment (including, but not limited to, permanent equipment such as lifts and elevators, and temporary equipment such as portable ramps, traffic cones, signs, wedges, and door stops) that are required to make polling places accessible to and usable by persons with disabilities. 28 C.F.R. § 35.133(a). If circumstances arise such that a polling place location that was previously accessible is no longer accessible because a feature of the facility or equipment is no longer operable, then the Board shall purchase new equipment or relocate the polling place to an alternative, accessible location in accordance with Paragraph 24 of this Agreement, notwithstanding any provision in State law.

Read the settlement agreement

U.S. Equal Employment Opportunity Commission (EEOC)

Hester Foods, Inc., the operator of a Kentucky Fried Chicken restaurant franchise in Dublin, Ga., violated federal law by discriminating against an employee because of her disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed. According to the EEOC lawsuit, Hester Foods' owner violated federal law by discharging restaurant manager Cynthia Dunson in July 2015 when he found out that she was taking medications prescribed by her doctor for bipolar disorder.

Kentucky Fried Chicken Sued By EEOC For Disability Discrimination

Scottsdale Car Dealership to Pay $45,000 To Settle Disability Discrimination Lawsuit

Two Scottsdale, Ariz., companies will pay $45,000 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 EEOC charged that the companies violated federal law when they rescinded a job offer made to an individual after a pre-employment drug test revealed a prescription drug used to treat a disability. U.S. Department of Justice (DOJ)

Scottsdale Car Dealership to Pay $45,000 To Settle Disability Discrimination Lawsuit

New Justice Department Document Issued on the 27th ADA Anniversary

On July 26, 2017, the Department of Justice published "27 Years of the Americans with Disabilities Act," a document that provides brief case highlights about the Department's Americans with Disabilities Act (ADA) enforcement efforts this year. The document recognizes the ADA's 27th anniversary and notes the Department's role in advancing the ADA's goals of ensuring equal opportunity, full participation, independent living, and economic self-sufficiency for people with disabilities.

Read about the 27 Years of the Americans with Disabilities Act

Great Lakes In Focus

A Cautionary Tale for Healthcare Providers: Are You Actually Providing Effective Communication Under the ADA and the Rehabilitation Act?

Lexology

The Eleventh Circuit, in Silva v. Baptist Health South Florida, Inc., recently addressed a healthcare provider’s obligation to provide effective communication, through appropriate auxiliary aids and services, to persons with disabilities pursuant to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (RA).[1] The lessons from this opinion are instructive to healthcare providers around the country who may find themselves in the shoes of the defendants.

The Facts and Procedural History

The plaintiffs in Silva, who are hearing-impaired, alleged that the defendants, two nonprofit hospitals and their nonprofit parent company, failed to provide an in-person interpreter for American Sign Language but relied instead on video remote interpreting (VRI), which was allegedly ineffective in violation of the ADA and the RA.[2] The district court awarded summary judgment to the defendants on the basis that the plaintiffs lacked Article III standing to seek injunctive relief under the ADA or the RA because they did not show that they were likely to return to the healthcare facilities in the future.[3] The district court also dismissed plaintiffs’ claims under the RA because they failed to establish any damages, i.e., they failed to demonstrate instances where communication difficulties resulted in actual adverse medical consequences to them.[4]

The Standard for an Effective Communication Claim Under the ADA and RA

A unanimous Eleventh Circuit panel, however, reversed the lower court’s ruling. While the court recognized that it is ultimately up to the healthcare provider to determine the appropriate auxiliary aid to supply and that it is not required to supply any and all auxiliary aids demanded, the court stressed that the auxiliary aid furnished must provide effective communication.[5] The court held that “the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid impaired the patient’s ability to exchange medically relevant information with hospital staff.”[6] It explained that hospitals must “afford a level of communication to a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”[7] The court further recognized that whether appropriate auxiliary aids have been provided is “inherently fact-intensive.”[8]

The court rejected the requirement that, to make out an effective communication claim, a plaintiff must establish actual deficient treatment or recount specifically what the plaintiff did not understand.[9] It explained that the “focus is on the effectiveness of the communication, not on the medical success of the outcome.”[10] The court also rejected the notion that a defendant could defeat such a claim by showing that a plaintiff was able to participate in the “most basic elements of the doctor-patient exchange.”[11]

The Plaintiffs Offered Sufficient Evidence to Defeat Summary Judgment

The Eleventh Circuit held that the plaintiffs set forth sufficient evidence to overcome summary judgment. The court found that the plaintiffs offered enough evidence for a jury to conclude that the defendants’ failure to offer an appropriate auxiliary aid impaired their ability to exchange medically relevant information with hospital staff. One plaintiff explained that “[o]n some occasions . . . the [VRI] machine was inoperable or unusable” and “it appeared the hospital staff could not figure out how to operate the machine[;] [o]ther times, the picture would be blocked, frozen, or degraded.”[12] She also alleged that she “requested an interpreter many times” but “wait[ed] for so long” before the interpreter arrived.[13] In the meantime, while hospital staff attempted to communicate with the plaintiff through written notes and gestures, the plaintiff attested that she was “unable to understand most of what they attempted to communicate through these means” and that she was made to sign forms consenting to treatment and medications that she “did not fully understand or even have the opportunity to ask questions about.”[14]

The other plaintiff recounted that because the defendants did not have VRI machines at its outpatient facilities, the medical team relied on his wife’s interpretative assistance.[15] The court noted that, with limited exceptions, reliance on companions for communication is not permitted under the ADA.[16] This plaintiff also testified in his deposition that “[i]t was all day long I had a bad experience with that VRI; [e]very staff member tried to get it going and nobody could.”[17] As such, he thereafter declined the VRI because he did not “even want to waste all that time” with a device that often malfunctioned.[18]

The Eleventh Circuit also concluded that the plaintiffs had standing to seek injunctive relief under both acts.[19] Their affidavits set forth that the plaintiffs had a history of prior care and treatment at the hospitals and would likely return to the hospitals for future care.[20] The defendants also maintained the plaintiffs’ medical records, and their facilities were located close to the plaintiffs’ homes.[21]

The Corporate Parent Is a Proper Defendant

The Eleventh Circuit also rejected the defendants’ argument that the parent entity of the hospitals was an improper party to the dispute because it was not a medical facility where the plaintiffs had received medical services. The court rejected this argument because “[t]here is no rule that a covered entity under the ADA or RA must be the direct service provider — in fact the ADA addresses itself to those who own, lease, or operate a place of public accommodation.”[22] It explained that the corporate parent “owns and operates the hospitals at which Plaintiffs presented, it houses the network to which the VRI machines are connected, and applies its various policies and procedures to [the hospitals] and affiliated outpatient facilities.”[23]

Takeaways

The Eleventh Circuit’s opinion in Silva highlights the importance of a healthcare facility having the appropriate resources, policies, and practices in place to provide effective communication to persons with disabilities. Several healthcare facilities (and other public accommodations) have moved toward retaining VRI services given the revised ADA regulations on their use, as well as the convenience and cost savings afforded from such services. It is imperative, however, that healthcare facilities ensure that VRI equipment functions properly and that staff are trained on how to use such equipment and troubleshoot issues that may arise. Healthcare providers may also want to have arrangements in place so that live interpreters can be timely provided when necessary.

While this opinion involves patients with hearing impairments, there are a variety of other disabilities (e.g., vision, mobility, cognitive) that healthcare facilities need also to consider when assessing whether they have the appropriate auxiliary aids and services in place to ensure effective communication with patients with disabilities.

Moreover, healthcare facilities often face greater exposure to disability discrimination claims as compared to other private businesses because many receive federal funding, which makes them subject to the RA. In addition to injunctive relief, the ADA and the RA allow for the recovery of attorney’s fees and costs, and the RA further allows for recovery of damages.

K&L Gates - Carol C. Lumpkin and Stephanie N. Moot

Court's Ruling Requiring The EEOC To Reconsider Its "Wellness" Regulations Is Not Necessarily A Good Thing For Employers

The ruling in the AARP v. EEOC case may be detrimental to employers and their healthcare plans because the EEOC may either reduce the percentage of its allowable inducement (or penalty) below 30% the employee cost for participation in any employer-sponsored "wellness" program to be considered voluntary or even return to its former position that any reward or penalty renders participation involuntary.

The Americans with Disabilities Act (ADA) permits an employer to conduct voluntary medical examinations including voluntary medical histories, including health risk assessments, as part of an employee health program. The Genetic Information Nondiscrimination Act (GINA) also permits the voluntary collection of genetic information. Prior to May 2016 when the EEOC issued its "wellness regulations," the EEOC's position was that the ADA also prohibited penalizing or rewarding any employee for completing a health risk assessment that sought medical or disability-related inquiries or participating in any health insurance program, such as a "wellness" program, on the grounds that the reward for doing so rendered participation involuntary. On May 16, 2016 when the EEOC passed its "wellness" regulations, the EEOC concluded that the ADA would not be violated if any incentive or penalty for participation in a "wellness" program was valued at 30% of the employee-cost of plan participation or less. We addressed the EEOC's 2016 regulations in this blog post.

Source: Lexology


The Docket

Faidley v. United Parcel Service of America, Inc. (8th Cir. 4/4/17)

In an Americans with Disabilities Act (ADA) case, the 8th Circuit Court of Appeals addressed whether employers must consider job positions that may become open in the future as possible accommodations. The question involved When an employer was evaluating an employee’s request for reassignment as an accommodation. The Court cited guidance on reassignment from the U.S. Equal Employment Opportunity Commission (EEOC) in its decision. The court said that employers must consider transfers to positions that the employer anticipates or knows will become vacant in the future.

The employee worked as a delivery driver for UPS and his work activity was limited following an injury to his back. He filed suit under the ADA after his employer failed to provide him another full time position. The employee provided information that indicated that UPS expected that feeder driver positions would become open in the near future .Based on his restrictions he would have been able to perform the feeder driver position.

Justice Department Says Vending Machines Are Not Places Of Public Accommodation

Seyfarth Synopsis: In amicus brief to the U.S. Supreme Court, the Justice Department agreed with the Fifth Circuit and defendant Coca-Cola that a vending machine is not a place of public accommodation and that public accommodations can comply with the ADA by providing assistance to customers in lieu of having accessible self-service equipment.

The Supreme Court recently asked the U.S. Department of Justice (DOJ) to weigh in on whether vending machines are places of public accommodation covered by Title III of the ADA. The Court's request related to a pending a Petition for Certiorari filed by a blind plaintiff who unsuccessfully sued Coca-Cola for allegedly owning and/or operating vending machines that are not independently usable by the blind. Both the District Court and the Fifth Circuit had concluded that such machines are not public accommodations under the ADA.

The DOJ's amicus brief unequivocally stated its position that vending machines are not public accommodations. The DOJ advanced a number of arguments in support of its position that a vending machine does not fall within any of the 12 categories of businesses that are considered public accommodations under the statute. Among other things, the DOJ stated that a vending machine is not a "sales establishment" covered by the law but rather a piece of equipment typically found within public accommodations facilities.

The most significant commentary from the DOJ's brief concerns a public accommodation's obligations with regard to self-service equipment provided for public use. The DOJ stated: the operator of a public accommodation in which the vending machines is located is better suited to determine whether such changes [(i.e. making the vending machines independently accessible by blind users)] are the most efficient means of complying with the ADA. When buying or leasing vending machines, some business owners may insist upon the inclusion of accessible features. Others, however, might choose instead to install the machines at locations within their establishments where their employees will be available to assist customers with disabilities. The business owner is better positioned than the seller or lessor of the machines to determine what method of ensuring accessibility will be most effective at a particular location.

In other words, it is the DOJ's position that providing assistance to customers with disabilities is a lawful way to provide access in lieu of procuring accessible vending machines. Presumably this position would extend to all self-service equipment provided for customer use - at least when there are no privacy concerns. (In 2014, the DOJ had filed a Statement of Interest in a different case involving allegedly inaccessible point-of-sale devices where it took the position that a public accommodation must provide individuals with disabilities independent access to point-of-sale devices which require the entry of Personal Identification Numbers (PINs).)

Also significant was DOJ's view that the Supreme Court should not grant review of the case in order to address the question of whether online-only businesses are covered by Title III of the ADA. The DOJ noted that while "questions concerning Title III's application to non-physical establishments - including websites or digital services - may someday warrant" the Supreme Court's attention, this case was not the time or place to do so since the plaintiff here encountered the machines in person, not via telephone or internet. The DOJ's suggestion that the Court should defer on this issue suggests that the Department may be evaluating its prior position that online-only businesses are covered by the ADA.

Seyfarth Shaw LLP
Kristina M. Launey
Minh N. Vu

ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT

From the ADA Expert

Question1:
Must employer find a reasonable accommodation for employee with an intellectual disability who can no longer perform his job?

Issue:
For five years, Jerry, a factory worker with an intellectual disability, operated a cutting tool by hand until the plant replaced the tool with a more complex automated machine. Although Jerry has received training, his functional limitations prevent him from learning how to operate the new equipment, and there are no reasonable accommodations that will enable him to do his job. He asked Lonnie, his supervisor, if there is some other job he can do at the plant. Lonnie wants to know if he can skip all that and just fire Jerry.

Answer:
No, Lonnie cannot just fire Jerry. The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate applicants and employees with disabilities to enable them to enjoy equal employment opportunities unless doing so would be an undue hardship (i.e., a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability.

Question2:
Are Transgender Employees Disabled under the ADA?

Answer:
There has been a lot of discussion over the last year about whether transgender employees are protected against sex discrimination under Title VII-but what about against disability discrimination under the Americans with Disabilities Act (ADA)? Maybe. In Kate Lynn Blatt v. Cabela's Retails, Inc., a federal district court in Pennsylvania has ruled that a transgender former employee can proceed with her ADA claims. Blatt began work with Cabela's in 2006. She alleges that she complained to management that her coworkers made degrading and discriminatory comments because she is transgender and has gender dysphoria. She also alleges that she was denied requested accommodations for her gender dysphoria (e.g., a female work uniform, use of the women's restroom). She further claims that Cabela's then terminated her in retaliation for her complaints and requested accommodations. She filed a lawsuit under Title VII and the ADA. The ADA provides that the term disability shall not include, among other things, "gender identity disorders not resulting from physical impairments." Accordingly, Cabela's moved to dismiss Blatt's ADA complaint on the grounds that her gender identity disorder was not a covered disability. Blatt responded that if the ADA excluded her condition, it was a violation of her equal protection rights. The court denied Cabela's motion to dismiss, avoiding Blatt's equal protection claim. Specifically, the court held that the ADA's exclusion of gender identity disorders could be read narrowly to exclude only the condition of identifying with a different gender but not excluding "disabling condition that persons who identify with a different gender may have." Ultimately, the court concluded that Blatt's gender dysphoria, which she alleges substantially limits her major life activities, could be a covered disability. So, the court denied the motion to dismiss the ADA claims, both the discrimination and retaliation. On a practical level, this is probably not game changing for employers (at least at this point). It is just one more consideration in dealing with transgender employees or applicants. If a person identifies as transgender, you may want to treat it as a disability issue, which could include engaging in the interactive process and requesting appropriate medical information. Similarly, if an employee complains that he or she is being mistreated because of being transgender, handle it like any other discrimination or harassment complaint. That way if you get sued-either for sex or disability discrimination-you will be in the best position to defend the claim, regardless of where the courts ultimately come down on this issue.

The employer should work with Jerry to determine whether he can be reassigned to a vacant position for which he is qualified. The vacant position must be equivalent in terms of pay and status to the original job, or as close as possible if no equivalent position exists. The position need not be a promotion, although the employee should be able to compete for any promotion for which he is eligible. The employer should work with Jerry to determine whether he can be reassigned to a vacant position for which he is qualified. The vacant position must be equivalent in terms of pay and status to the original job, or as close as possible if no equivalent position exists. The position need not be a promotion, although the employee should be able to compete for any promotion for which he is eligible.

Employers should ask an employee with an intellectual disability, or the person acting on his or her behalf, what the employee needs to help him or her do the job. Also, extensive public and private resources are available to help employers identify reasonable accommodations.

For additional information regarding the employment provisions of the ADA contact the Great Lakes Center by calling (800) 949-4232 (V/TTY) or via our Online Contact Form.

Source:

For more information please call 800-949-4232 (Voice/TTY) or Online via Contact Us form.

Great Lakes ADA Center
University of Illinois at Chicago
Department of Disability and Human Development (MC 728)
1640 West Roosevelt Road, Room 405
Chicago, Illinois 60608-6904
 
 
 
 

Last Updated on:
Wed Sep 27, 2017