April 2017
Volume 12 Issue 4 
 
 
 

Trainings & Events

AccessibilityOnline Webinar Series
Accessible Fitness Facilities and Exercise Equipment
May 4th, 2017 1:30-3:00 CT.

The 2010 ADA Accessibility Standard and the Architectural Barriers Act Accessibility Standard include provisions for exercise equipment and other elements typically found in a health club or fitness facility. This session will highlight provisions for exercise equipment along with a basic review of the building and facility elements such as toilet and bathing facilities, locker rooms, and other site amenities.

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
Free Web Evaluation Tools: What They Can (and Can't) Do
May 18th, 2017 1-2:30 CT.
This presentation will examine some common on-line tools that can be used to evaluate different aspects of web accessibility. The session will discuss why many web site features require human evaluation to truly determine if the site is accessible. The session will also discuss how different parts of the web team should be involved in evaluation and validation issues and work together as a team to produce an accessible product. Ongoing evaluation will be discussed as well.

Speakers:
Julie Brinkhoff Associate Director, Great Plains ADA Center

For more information visit Accessible Technology at http://www.accessibilityonline.org/ada-tech or call (877) 232-1990
ADA Legal Webinar Series
The Interplay Between the ADA and the FMLA
May 24th, 2017

Employee leave is one of the most complex and common situations that businesses encounter. This session will compare and contrast the ADA and Family and Medical Leave Act (FMLA), their respective regulations, and court decisions to assist employers and employees with navigating leave under each statute separately and in tandem.

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
AccessibilityOnline Webinar Series
Accessible Dining Surfaces and Bars
June 1st, 2017 1:30-3:00 CT.

The ADA and ABA Accessibility Standards apply to a wide range of spaces in the public and private sectors and specify which elements and spaces must be accessible. This session will review how to apply these criteria to dining surfaces and bars and provide guidance on some common errors in design. A representative from the Restaurant Association will provide an overview of the most common restaurant design issues, including product selection, installation details, furniture placement and best practice design tips.

Speakers:
Rex Pace, Director, Center for Inclusive Design and Environmental Access

For more information visit AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
AccessibilityOnline Webinar Series
Accessible Courthouses (A refresher)
July 6th, 2017 1:30-3:00 CT.

This session will provide a refresher on requirements in the ADA and ABA Accessibility Standards for courthouses and courtrooms. Presenters will review provisions in the standards for secured entrances, judges' benches, jury boxes, witness stands, clerk and bailiff stations, spectator seating, holding cells, and other courthouse spaces and elements.

Speakers:
Dave Yanchulis Accessibility 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
ADA Legal Webinar Series
Reasonable Accommodation Update
9/20/2017 2:00:00 PM CT.

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

Access Board Issues Guidance on the International Symbol of Accessibility

The Access Board has released guidance on the International Symbol of Accessibility (ISA) to address questions that have arisen on the use of alternative symbols. Some cities and states have adopted a different symbol that was created to be more dynamic and suggestive of movement. The Board’s guidance explains how use of a symbol other than the ISA impacts compliance with the Americans with Disabilities Act (ADA).

Read the Access Board Guidance on the International Symbol of Accessibility=

Access Board to Hold Town Hall Meeting in Minneapolis on May 9

The Access Board will hold a town hall meeting in Minneapolis on the afternoon of May 9 at the University of Minnesota. The event will provide an open forum where members of the public can pose questions to the Board or share comments or concerns related to accessibility. There also will be panel discussions with local speakers on outdoor recreation and Target's accessibility program.

Read More about the May 9th Access Board Meeting

U.S. Equal Employment Opportunity Commission (EEOC)

Wisconsin Employer Resolves EEOC Case Involving Wellness Program and Retaliation

The U.S. Equal Employment Opportunity Commission (EEOC) announced that it has resolved its suit against Orion Energy Systems, a Manitowoc, Wis., lighting company, challenging a wellness program under the Americans with Disabilities Act (ADA) and alleging that the employer retaliated against an employee who objected to the program by terminating her. In its suit, the EEOC contended that Orion instituted a wellness program that unlawfully required medical examinations and made disability-related inquiries.

Read More about the EEOC Settlement with Orion Energy Systems

Zale Delaware Will Pay $30,000 To Settle EEOC Disability Discrimination Lawsuit

Zale Delaware, Inc., dba Piercing Pagoda, a jewelry retailer based in Irving, Texas, will pay $30,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. The EEOC's lawsuit charged that Piercing Pagoda violated federal law by firing an employee because of her disability.

Read More about the Zale Delaware Settlement with the EEOC

Mine Rite Technologies Sued For Disability Harassment And Discrimination

Mine Rite Technologies, LLC violated federal law by subjecting an employee at its Buffalo, Wyo., location to a hostile work environment based on his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. The EEOC also charged the company with forcing the employee out of his job because of his disability.

Read More about the EEOC Settlement with Mine Rite Technologies

Food Service Company to Pay $35,000 to Settle EEOC Disability Discrimination Suit

An Illinois food service company will pay $35,000 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, Nashville, Tenn.-based American Blue Ribbons Holding, LLC dba Legendary Baking, violated federal law by denying light duty work to an employee an employee at its Oak Forest, Ill., baking facility.

Read More about the EEOC Settlement with American Blue Ribbons

Disability Services Company to Pay $100,000 to Settle EEOC Disability Discrimination Lawsuit

ValleyLife, a disability support services company, will pay $100,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC),. According to the EEOC's suit, ValleyLife had a practice of firing employees with disabilities who needed extended leave or reassignment rather than providing them with reasonable accommodations as required under federal law.

Read More about the EEOC Settlement with ValleyLife

U.S. Department of Justice (DOJ)

Justice Department Reaches Settlement Agreement with the NORWICH FAMILY YMCA

The agreement resolves a title III complaint alleging the YMCA denied a membership to a individual with a developmental disability because of the individual’s disability. The YMCA will not impose screening or admissions criteria, or application requirements on individuals with disabilities that differ from those screening or admissions criteria, or application requirements, that the YMCA uses for any other member of the public applying for a membership at the Norwich Family YMCA.

Read More about the Justice Department Agreement with the YMCA

Justice Department Settles with Public School District to Resolve HIV-Related Discrimination Findings

The Justice Department announced that it has reached an agreement with the Pea Ridge School District (PRSD) of Pea Ridge, Arkansas, to remedy alleged violations of the Americans with Disabilities Act (ADA). Title II of the ADA prohibits discrimination by public entities, including school districts, against individuals who have disabilities; individuals regarded as having disabilities; and individuals associated with people with disabilities. Based on its investigation, the Department previously issued a Letter of Findings outlining how the District excluded three students after reviewing a document referencing the human immunodeficiency virus (HIV) status of the students’ family member.

Read More about the Justice Department Agreement

United States Attorney’s Office Reaches Settlement With Luzerne County

The United States Attorney’s Office for the Middle District of Pennsylvania announced a settlement with Luzerne County under Title II of the Americans with Disabilities Act (ADA). The settlement looks to improve physical accessibility at the county’s polling places for individuals who use wheel chairs and other mobility aids, and for individuals who are blind or have vision impairments.

Read More about the Justice Department Agreement with the County

Justice Department Reaches Agreement with Washington Metropolitan Area Transit Authority

Under the terms of a consent decree filed by the Justice Department, the Washington Metropolitan Area Transit Authority (WMATA) will pay a former job applicant $175,000.00 in compensatory damages because it rescinded a provisional job offer to the applicant upon learning that he had epilepsy. The decree, pending approval by the District Court for the District of Columbia, will further require WMATA to institute new policies to ensure employees and job applicants with disabilities have the opportunity to confer with WMATA about their limitations as well as opportunities for reasonable accommodation in the workplace. WMATA will also ensure that supervisors are fully trained in those policies.

Read the Consent Decree between the Justice Department and Metropolitan Area Transit Authority

Great Lakes In Focus

Florida Courts Rule ADA Covers Websites With Nexus To Physical Store | Seyfarth Shaw LLP - JDSupra

Minh Vu | Seyfarth Shaw LLP

Seyfarth Synopsis: Two Florida federal district court judges require websites to have a “nexus” to a physical location for coverage under Title III of the ADA, but a third judge requires more.

The Eleventh Circuit Court of Appeals (which includes Florida, Alabama, and Georgia) has yet to decide whether and to what extent Title III of the ADA applies to websites of public accommodations, but recent rulings from three different federal judges in Florida do provide insight on where the judges in that circuit may draw the lines.

Gil v. Winn Dixie. In December 2016, we wrote about the Gil v. Winn Dixie Stores case where a blind plaintiff alleged that Winn Dixie’s website violated Title III of the ADA because it was not accessible to him. Winn Dixie moved to dismiss the case, arguing that websites are not covered by Title III of the ADA because they are not physical places. Though not a party to the lawsuit, the Department of Justice filed a Statement of Interest supporting the plaintiff and expressing its view that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.” In response, Winn Dixie objected to the DOJ’s involvement and moved to strike the DOJ’s Statement of Interest.

District Court Judge Robert Scola recently denied Winn Dixie’s motion to dismiss the case and to strike the DOJ’s Statement of Interest. The case is now on its way to a bench trial — the first trial concerning an ADA Title III claim about a website, to our knowledge. In denying the motion to dismiss, Judge Scola agreed with the DOJ’s analysis that the law guarantees a plaintiff equal access to the services, privileges, and advantages “of” a public accommodation, not just those that are offered “at” a place of accommodation. Judge Scola noted that “Winn-Dixie’s website is heavily integrated with, and in many ways operates as a gateway to, Winn-Dixie’s physical store locations.” The court found that allegations concerning the website’s store locator feature and prescription ordering service for in-store pick up, if proven, could establish “nexus between Winn-Dixie’s website and its physical stores.”

Gomez v. J. Lindeberg USA, LLC. In this case , the defendant defaulted and District Court Judge Kathleen Williams had to determine if, on the basis of the facts alleged in the complaint, serial plaintiff Andrew Gomez was entitled to have a judgment entered in his favor. The complaint alleged that the plaintiff could not purchase clothing or search for store locations on the defendant retailer’s website because it was not accessible. Judge Williams concluded that the plaintiff had alleged sufficient facts establish a “nexus between the challenged service and the place of public accommodation,” and entered an injunction requiring the defendant to “undertake immediate remedial measures to make its website readily accessible and usable to people with visual disabilities.” The judge also ordered the defendant to pay plaintiff’s attorneys’ fees and costs.

Gomez v. Bang & Olufsen. District Court Judge Joan Lenard held in this case that the plaintiff had failed to state a claim under the ADA because he had not alleged that the website’s alleged inaccessibility impeded his full use and enjoyment of the brick-and-mortar store. The plaintiff had alleged that he could not shop for items on the website to have them delivered to his home. Judge Lenard held that the plaintiff failed to claim “an actual (not hypothetical) impediment to the use of Defendant’s retail location.”

To summarize, two of the three Florida federal judges to have decided whether Title III of the ADA covers websites of public accommodations require a “nexus” between the website and a physical place of business where customers go (in alignment with the Ninth Circuit and precluding suits against web-only businesses), and one requires that the website’s lack of accessibility actually impede a plaintiff’s access to a physical place of business. All three judges agree that websites with no nexus to a physical place of public accommodation are not covered by the ADA.

Edited by Kristina Launey Source: Copyright © 2017 JD Supra, LLC


The Docket

Wisconsin Bell, Inc. v. Labor and Industry Review Commission

The Wisconsin Court of Appeals has upheld a lower Court’s decision holding that a call center employee with bipolar disorder proved that he faced an adverse employment action because of his disability. The Court held that the employee showed he was terminated for misconduct that was caused by his disability.

The Wisconsin Court of Appeals held that if an employee is discharged because of conduct that was a direct result of his or her disability, the discharge is because of the disability. The court did add two qualifications. First, the Court held that the employee must provide evidence that the employer knew of the connection between the employee’s disability and the conduct that resulted in the adverse employment action. Second, the Court found that expert testimony may be required to establish the connection.

From the ADA Expert

Question:
What is the association provision of the Americans with Disabilities Act (ADA) with regards to employment and to whom does it provide protection?

Answer:
The ADA covers private employers with 15 or more full or part-time employees and also state and local government employers. The ADA prohibits discrimination on the basis of disability in all employment practices of covered employers. A covered employer may hire, fire or promote the most qualified individual he or she chooses but that employer is prohibited from using disability in that decision making process.

The purpose of the association provision is to prohibit employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities. The ADA makes actions such as refusing to hire an individual who has a child with a disability based on an assumption that the applicant will be away from work excessively or be otherwise unreliable, firing an employee who works with people who are HIV-positive or have AIDS based on the assumption that the employee will contract the disease, or denying an employee health care coverage available to others because of the disability of an employee's dependent unlawful.

The association provision of the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with which the applicant or employee has a relationship or association.

The ADA does not require a family relationship for an individual to be protected by the association provision. The important factor is whether the employer is motivated by the individual's relationship or association with a person who has a disability.

Employers do not have to provide reasonable accommodations to employees who associate with individuals with disabilities. Only qualified applicants and employees with actual disabilities are entitled to reasonable accommodation under the ADA.

For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability.

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.

Suggested Resources:

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 Apr 26, 2017