ADA Developments in the Great Lakes Region Over the Last Year (2016-2017)


Prepared by:
Barry C. Taylor, Vice President of Systemic Litigation and Civil Rights, Equip for Equality
Rachel M. Weisberg, Staff Attorney / Employment Rights Helpline Manager, Equip for Equality

Definition of Disability

Richardson v. Chicago Transit Authority, 2016 WL 6070359 (N.D. Ill. Oct. 17, 2016)
A former bus operator attempted to return to work following an extended medical leave. While Defendant's physician determined that Plaintiff was physically able to return to work and Plaintiff was also given a safety assessment different from that normally required, Defendant eventually rejected Plaintiff's request to return to work. Plaintiff alleged that Defendant refused to allow him to return to work because Defendant regarded him as disabled due to his obesity. Defendant sought a motion to dismiss, which the court denied. Defendant asserted that to sufficiently allege that he was disabled pursuant to a "regarded as" claim, Plaintiff needed to prove that Defendant believed he had an impairment which substantially limited one or more major life activities. The court rejected this argument, because it was based on standards which were no longer applicable following the passage of the ADA Amendments Act. Under this standard, an individual is regarded as having such an impairment if he is subjected to a prohibited action because of an actual or perceived impairment, whether or not that impairment actually substantially limits or is perceived to substantially limit a major life activity. Defendant then argued that Plaintiff's claim failed because obesity does not qualify as an impairment unless it both falls outside the normal range for weight and occurs as the result of a physiological disorder. The court also rejected this argument. While noting that there was a split among courts whether a plaintiff alleging discrimination on the basis of obesity must demonstrate that the obesity resulted from a physiological disorder, it found that it did not have to resolve this question at this stage of the litigation, because even if Plaintiff would be ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege this in his claim. Finally, Defendant argued that Plaintiff failed to exhaust administrative remedies, because his complaint did not explicitly allege that Defendant regarded him as disabled. This argument was also rejected as being overly formalistic, as courts have frequently found that regarded as claims were reasonably related to actual disability claims made in EEOC filings, just like that made in Plaintiff's own EEOC charge.

Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016) (8th Cir: MN)
In this case, the U.S. Court of Appeals for the Eighth Circuit held that obesity-without an underlying impairment-is not a disability under the ADA. The plaintiff in this case applied for a safety sensitive position that required applicants to have a body-mass index (BMI) under 40. Although the plaintiff had no medical condition, his BMI was 40.9 and his job offer was revoked. The Eighth Circuit concluded that the plaintiff did not have a disability under the ADA as obesity has to be due to an underlying physiological disorder to constitute a disability. The court acknowledged that other courts have come to different conclusions and interpreted guidance from the Equal Employment Opportunity Commission differently (EEOC). The plaintiff asked the U.S. Supreme Court to review the case, but the Court denied this request on October 3, 2016.

Qualified/Essential Functions

Brown v. Smith., 827 F.3d 609 (7th Cir. 2016) (7th Cir: IL, IN, WI)
The plaintiff was fired from his position of street supervisor because he was unable to obtain a commercial driver's license (CDL) due to his insulin-dependent diabetes. The question before the court was whether having a CDL was an essential function of the street supervisor position. The U.S. Court of Appeals for the Seventh Circuit affirmed a jury verdict and judgment for the plaintiff. Although the job description stated that the position required a CDL, the court credited the plaintiff's testimony that he had worked in the position for four years without needing to drive. It also emphasized that many other employees were available to drive, if necessary, noting that replacement drivers could be secured within 10 minutes, allowing supervisors to focus on their other duties.

Camp v. Bi-Lo, LLC, 662 Fed.Appx. 357 (6th Cir. 2016) (6th Cir: MI, OH)
Plaintiff worked as a stock clerk at a grocery store for 38 years. He was restricted from lifting over 35 pounds due to a back impairment. However, the employee had worked in a small team and had an informal arrangement where his co-workers lifted the very heavy items. The issue in this case was whether lifting over 35 pounds was an essential function. The employee argued that it was, citing a job description that required lifting 20-60 pounds frequently. The district court found for the employer, but this decision was reversed and remanded by the U.S. Court of Appeals for the Sixth Circuit. The appellate court held that lifting 35 pounds was not an essential function. In so holding, the court explained that the three-man team had been able to shelve product using the informal arrangement for years without problem. It also cited the testimony from plaintiff's immediate supervisor and colleagues that plaintiff could perform the essential functions of the position without this type of lifting.

Reasonable Accommodations

Lawler v. Peoria Sch. Dist. No. 150, 837 F.3d 779 (7th Cir: IL, IN, WI)
A special education teacher with post-traumatic stress disorder (PTSD) had a difficult relationship with her principal and requested leave and a transfer. The district placed the teacher in a Day Treatment program working with children with learning disabilities and also severe emotional and behavioral disorders, a position that neither the plaintiff nor the principal thought was an appropriate fit. The teacher was injured by a disruptive student and her PTSD was further triggered. The plaintiff requested another leave and another transfer, but instead of granting these requests, the district terminated her position after finding that she was not performing well. Although the district court granted the school district's motion for summary judgment, the U.S. Court of Appeals for the Seventh Circuit reversed and remanded this decision. It held that the teacher presented sufficient evidence that the district failed to consider transferring her out of the Day Treatment program and that there were at least seven vacancies for special education positions.

Settlement Agreement: EEOC v. Walmart, 15-cv-5796 (N.D. Illinois) (Dec. 2016)
https://www.eeoc.gov/eeoc/newsroom/release/12-12-16.cfm This settlement agreement resolved a lawsuit brought by the EEOC on behalf of an employee who was a cancer survivor with physical limitations. The employee requested a chair and a modified work schedule. While Wal-Mart agreed to provide both accommodations for a temporary period of time, it ultimately revoked both without explanation. Further, instead of providing the employee with a chair in her work area, Walmart told the employee that she had to move the chair from the furniture department to her work area, which was difficult due to her disabilities. The EEOC also asserted that a co-worker called the employee "cripple" and "chemo brain." To resolve this case, Walmart agreed to pay the former employee $75,000 and to train its employees on disability discrimination and requests for reasonable accommodation under the ADA.

Direct Threat

Fortkamp v. City of Celina, 159 F.Supp.3d 813 (N.D. Ohio 2016)
An employee injured his back while working as an electric lineman. After a spinal fusion surgery and nearly five year absence, he applied for reinstatement, but the city refused, arguing that he posed a direct threat because there was a high likelihood that re-injury would occur. The employee responded by asserting that the employer was inflating the arduousness of essential functions, and provided videos of him lifting weights as well as support from physicians. The court denied the employer's motion for summary judgment, finding that the employer failed to demonstrate that the employee posed a direct threat as a matter of law.

Wellness Programs

EEOC v. Orion Energy Systems, Inc., 2016 WL 5107019 (E.D. Wis. Sept. 19, 2016)
Orion offered a wellness plan to its employees. To encourage participation, Orion required employees who opted out of the wellness plan to pay their entire monthly health insurance premium, which cost employees from $413.43 to $1,130.83 per month. The EEOC brought a lawsuit on the employee's behalf asserting that the wellness plan violated the ADA because it constituted a medical exam or inquiry that was not job-related and consistent with business necessity. Orion defended itself asserting that the wellness plan was voluntary and therefore, not a required medical exam, and alternatively, that it fell within the ADA's safe harbor exception. In its analysis, the court also considered whether the EEOC's newly promulgated regulations applied. Ultimately the court agreed partially with the EEOC and partially with the employer. With respect to the safe harbor provision, the court held that the EEOC's new regulation applied, that the safe harbor provision is not applicable to wellness programs, applied. The court held that even if the regulation did not apply, this particular plan did not fall within the narrow safe harbor provision as it was unrelated to basic underwriting and risk classification. Despite that conclusion, the court found for the employer because it held that participation was not mandatory-it was just a "strong incentive." Note that the EEOC regulations now defines what out-of-pocket costs can be incurred and still be considered voluntary, so this type of program would not likely pass muster under the new EEOC regulations. To learn more about the EEOC wellness plan regulations, see: https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm

Pretext

Ross v. Bayloff Stamped Products Detroit, Inc., 2016 WL 3743131 (E.D. Mich. July 13, 2016)
Plaintiff worked as an operations manager and required medical leave first for hernia surgery and then cancer treatment. Although he was first permitted to modify his schedule and take leave, at some point, he was told that due to recommended management changes, he was being forced to resign or work at the same compensation until the end of the year. Plaintiff was ultimately fired, and brought claims for FMLA retaliation or interference, as well as for discrimination under the ADA and analogous state statutes. Both parties moved for summary judgment and they were both denied. Defendant asserted that Plaintiff was terminated based on the recommendation of a consulting company. Plaintiff was able to show that that the stated reason was potentially pretextual by showing temporal proximity between the adverse decision and the date he notified the company, and further provided evidence that Defendant's stated reasons were not backed up by the facts. The court also held that Plaintiff provided sufficient evidence to survive summary judgment as he was disabled within the meaning of the statutes, suffered an adverse employment action, his disability was known to Defendant, and Defendant ultimately hired someone else who assumed the majority of Plaintiff's responsibilities. Further, contrary to Defendant's arguments, there was "ample" evidence that Ross requested time off as an accommodation and Plaintiff met his burden to show that Defendant's explanations for the adverse employment action were disingenuous. Thus, summary judgment was denied to both parties and Plaintiff's case was permitted to go to trial.

Community Integration

Ball by Burba v. Kasich, 2017 WL 1102688 (S.D. Ohio Mar. 23, 2017)
A class action lawsuit was filed on behalf of thousands of people with developmental disabilities living in large institutions, as well as thousands of others living in the family home on waiting list who are at risk of institutionalization. In denying the State's motion to dismiss, the court confirmed that the Supreme Court's decision in Olmstead and the ADA's integration mandate apply to those who are living in the community who allege current harm and serious risk of institutionalization. The U.S. Department of Justice (DOJ) filed a Statement of Interest in support of the plaintiffs' position, and the court favorably cited DOJ's Statement on the Enforcement of the Integration Mandate supporting "at risk" claims: https://www.ada.gov/olmstead/q&a_olmstead.htm. The court also held that a one-time, time-limited settlement in a similar case that ended in 2009 did not prevent the plaintiffs from filing a new case for new wrongful conduct. The court noted that where "important human values" are at stake, even a small change in circumstances is enough to allow new legal claim."

Access to the Courts

King v. Marion Circuit Court, 2016 WL 3031085 (S.D. Ind. May 27, 2016)
The court system in Indiana created an alternative dispute resolution (ADR) plan for domestic relations matters called the Modest Means Mediation Program. The plaintiff participated in this program, as he did not want his daughter to have to go through a trial. He requested an ASL interpreter, but the judge who worked for the defendant denied this request citing budgetary concerns. The plaintiff brought a lawsuit under Title II of the ADA, and the Court found for the plaintiff and granted his motion for summary judgment on ADA liability and intentional discrimination. In so doing, the court confirmed that the mediation program was a service, program or activity of the public entity. Further, the defendant argued that it had accommodated the plaintiff by offering to "release" him from participation. The court rejected that proffered accommodation, as it was not one that enabled full participation in the program. The defendant also argued that providing an ASL interpreter for this one plaintiff would cause a slippery slope of requests and needs, an argument also denied by the court.

Criminal Justice

Settlement Agreement: United States and the Ohio Department of Rehabilitation and Corrections
https://www.ada.gov/ohio_doc_sa.html (Dec. 2016)

The United States conducted a compliance review and concluded that three Ohio correctional institutions had architectural and programmatic barriers to access for persons with disabilities. As a result, qualified individuals with disabilities were being excluded from participation in or denied the benefits of programs, services, or activities. To resolve this dispute, with respect to the architectural modifications, Ohio agreed to complete a set number of accessibility modifications within a three-year time frame, and to retain an architect as an expert to monitor compliance. Ohio also agreed to create a plan to provide a sufficient number of accessible cells with mobility features at each classification level. With respect to services, programs, and activities, Ohio agreed to take steps to ensure that inmates with disabilities are housed in the most integrated setting appropriate to their needs, ensure that they are not housed in designated medical areas unless they are actually receiving medical care or treatment, provide equal opportunity to participate in education, work, recreation, and early release, ensure that inmates are provided with a shower chair, and ensure that wheelchairs and other adaptive equipment is routinely cleaned, repaired and maintained.

Clemons v. Dart, 168 F.Supp.3d 1060 (N.D. Ill. 2016)
This case was brought by an inmate in county jail who used wheelchair, but was not assigned to an accessible room. The jail provided the inmate access to around-the-clock nursing services, and the nurses helped him access the sink, shower, and toilet. The jail defending this ADA and Rehabilitation Act lawsuit, arguing that there was no violation because the nursing staff successfully enabled plaintiff to access all facilities. The court, however, rejected this argument when denying the jail's motion for summary judgment. The court explained that on-demand nursing support was not equivalent to providing an accessible cell because it reduced plaintiff's ability to engage in independent living to the fullest extent possible. The court further clarified that Title II "requires affirmative, proactive accommodations necessary to ensure meaningful access to public services and programs, not accommodation upon request." A jury ultimately found for the plaintiff, awarding him $95,000. Following the jury verdict, the jail appealed and the case was remanded. The parties then reached a settlement whereby the jail paid the full amount of damages awarded by the jury as well as agreed attorneys' fees and costs. The parties asked the court to vacate the judgment to further the settlement agreement, which he reluctantly did, given that the jury verdict was fully satisfied by the settlement agreement.

Access to Voting

Settlement Agreement: United States and the Chicago Board of Elections
https://www.ada.gov/chicago_boe_sa.html (April 2017)

The United States conducted an initial investigation into the accessibility of polling places in Chicago and found that a significant percentage had multiple accessibility barriers. After informing the Chicago Board of Elections (CBOE) of these initial findings, CBOE contracted with Equip for Equality, the Illinois Protection and Advocacy Agency, to inspect over 1,000 polling sites to assess their accessibility. As a result, CBOE entered into a settlement agreement with the United States to ensure that every polling site in Chicago (2,000 precincts and nearly 1,500 polling sites) is accessible to persons with disabilities by the November 6, 2018, general election. CBOE also agreed to train all precinct coordinators on the installation and maintenance of any equipment, including wheelchair ramps, and has agreed to retain EFE to act as an expert consultant to continue its review to effectuate the terms of the settlement.

Hindel v. Husted , 2016 WL 2735935 (S.D. Ohio May 11, 2016)
The plaintiffs in this case are the National Federation of the Blind (NFB) and three individual NFB members who live in Ohio. Plaintiffs brought this lawsuit to challenge the fact that Ohio's absentee voting does not permit an individual who is blind to vote privately and independently because it uses paper absentee ballots that require third-party assistance. Plaintiffs further challenge Ohio's website as it includes information about voting procedures and policies, candidates, new voting initiatives, and election results, but the site is inaccessible to plaintiffs, who use screen reading technology. In May 2016, the court granted the State's motion for judgment on pleadings with respect to plaintiffs' arguments about the absentee ballots. Notably, the court held that although plaintiffs were denied meaningful access to voting in light of the inaccessible ballots, plaintiffs' proposed tool is a fundamental alteration. It reasoned that Ohio state law requires certification of any new voting mechanisms, and it was unclear whether proposal would be compatible with Ohio's various systems. The court encouraged parties to work on issue to implement software before future elections. In November 2016, the court denied Plaintiffs' motion for reconsideration. 2016 WL 6677170. Plaintiffs have appealed this case to the Sixth Circuit, and the appeal is currently pending. However, in February 2017, the court granted Plaintiffs' motion for a permanent injunction regarding the State's website. The parties agreed that the website should be, but is not, complaint with WCAG Level 2.0 AA. The court ordered the State to make the website complaint by September 29, 2017, in accordance with this standard, and to ensure that all forms are capable of being electronically filled, saved and submitted. 2017 WL 432839. See also Nat'l Fed'n of Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) (case outside of the Great Lakes region where Plaintiffs raised similar arguments and the court required the State of Maryland to ensure that its absentee voting system was accessible to voters who are blind).

Access to Emergency Medication in Childcare Setting

Settlement Agreement: United States and the YMCA of Metro Chicago
https://www.ada.gov/ymca_chicago.html (December 2016)

Complainants filed a complaint with the United States on behalf of their nine-year-old daughter with type 1 diabetes. She participated in the YMCA's swim team and requested that staff receive training on the administration of glucagon, a potentially life-saving medication administered if the daughter experienced severe hypoglycemia. The YMCA agreed to resolve this dispute by adopting a diabetes management policy and providing training to its employees. Note that in addition to this agreement, in 2016, there were three other agreements with YMCAs across the country on issues related to the inclusion of kids with diabetes.

Post-Secondary Education

Consent Decree: Dudley, U.S.A. v. Univ. of Miami (in Ohio)
https://www.ada.gov/miami_university_cd.html

This lawsuit was brought initially by a student who is blind about her experience without accessible classroom technologies. The United States intervened expanding this case to impact all students with disabilities at Miami University in Ohio. The parties entered into a consent decree, whereby the University agreed to improve its technology to ensure that it is accessible to students who are blind. This comprehensive and detailed consent decree addresses the wide-range of issues from web content to textbooks to course materials to IT procurement policy. For instance, the University agreed to ensure that its web content and learning management systems will confirm with WCAG 2.0 AA. It also agreed to meet with every student with a disability who requires assistive technology or curricular materials in alternate formats, and their instructors, every semester to develop an accessibility plan, and to procure web technology or software that best meets the accessibility standards.

Transportation

Access Living of Metropolitan Chicago, et al v. Uber Technologies, et al, 16-cv-09690 (N.D. Illinois) (filed 10/13/16)
https://www.accessliving.org/1410ga676

While no decision yet, Access Living filed a lawsuit in 2016 against Uber for failing to provide equivalent service to users with disabilities who require wheelchair accessible vehicles (WAVs). This is one of the first cases brought against a ridesharing business on this issue, and the first one where Uber answered the complaint instead of filing a motion to dismiss. The case is currently in the discovery phase of the litigation.

Public Schools

OCR Investigation: Ashby (MN) School District, 54 NDLR 151 (OCRV Chicago (MN) 2016)
A complaint was filed against a Minnesota school district alleging that it discriminated against a student with epilepsy because it did not make her medication available during all school activities, including during field trips, afterschool activities, and on the school bus. The complainants also asserted that the district failed to ensure that school personnel would administer medication to the student if she was having a seizure at school. The district responded quickly to OCR's investigation and engaged in a number of actions. Specifically, it worked with the school nurse, medical professionals and the complainant's family to develop a seizure action plan that, among other things, noted where the student's medication was located throughout the building. The district also trained a number of staff on how to administer medication in an emergency setting. Following these actions, the Department of Education's Office of Civil Rights closed its investigation.

 

Last Updated on:
Tue Jul 18, 2017