Employer Law Report

Tag Archives: ADA

Sixth Circuit decision shows similarly situated employees must truly be similarly situated in discrimination cases

Employers facing workplace discrimination claims in the 6th Circuit should find some comfort in the court’s recent decision in DeBra v. JP Morgan Chase & Co., which endorses a heightened standard for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees outside their protected class.

The plaintiff worked as a bank teller for Chase until she was terminated for on-the-job errors, such as overpaying customers, leaving bank funds unsecured on counters and accidentally failing to return bank cards to several customers. She alleged, however, that the bank’s reliance on these errors for her termination …

Adding more confusion to the world of website accessibility, WCAG 2.1 has been published

As many of you know, we have been keeping up on the growing litigation involving the accessibility of websites under the Americans with Disabilities Act (ADA) in our past posts: “Florida federal judge holds that supermarket chain’s website must be accessible to disabled” and “ADA public accommodations law reform on its way?” Many stakeholders have urged that websites of businesses that operate public accommodations should be accessible to the WCAG 2.0 AA standard. WCAG is the Web Content Accessibility Guidelines developed by the World Wide Web Consortium (W3C), the private organization focused on improving the Internet …

ADA public accommodations law reform on its way?

Yesterday (Feb. 15, 2018), The U.S. House of Representatives passed a bill, the ADA Education and Reform Act (HB 620), that would impose new requirements on plaintiffs before they file a lawsuit. Places of public accommodations, including websites and apps, would have 6 months to bring their place of public accommodation into compliance before a claimant could file a lawsuit seeking injunctive relief and attorneys’ fees.

Any employer who is also a place of public accommodation knows that lawsuits under the Americans with Disabilities Act (ADA) Title III have long posed a problem for businesses. Businesses want to comply but …

Eleventh Circuit rejects EEOC position regarding reassignment as a reasonable accommodation

Rejecting the EEOC’s position that an employer must reassign a qualified individual with a disability to a vacant position as a reasonable accommodation so long as the individual was minimally qualified for the position, the 11th Circuit on Dec. 7, 2016 held that even disabled workers in need of a reasonable accommodation must compete with other qualified employees for the vacancy. In EEOC v. St. Joseph’s Hosp., Inc., the plaintiff was a nurse who needed a cane for mobility. Because the cane posed a safety hazard in the psychiatric ward where she worked, she was given the opportunity …

EEOC issues proposed rule on ADA application to employer wellness programs

On April 16, 2015, the EEOC released its long-anticipated proposed rule on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs. For the most part, the rule reflects the EEOC’s efforts to make the ADA’s requirements consistent with the requirements for employer wellness programs that are already found in HIPAA’s non-discrimination provisions, as amended by the Affordable Care Act (“ACA”), but there are some key differences and the EEOC’s proposed rule leaves open some questions that hopefully will be addressed when the final rule is …

Don’t Judge a Book by Its Cover! The Sixth Circuit Provides Employers With A Roadmap For Hiring Persons With Disabilities

The Sixth Circuit Court of Appeals reversed the Michigan district court’s ruling in Keith v. County of Oakland, finding a deaf applicant’s rights under the Americans with Disabilities Act ("ADA") may have been violated when Oakland County ("the County") revoked its job offer to hire him as a lifeguard.

Nicholas Keith, who was born deaf, trained and successfully completed the County’s lifeguard training program in 2007. After receiving his lifeguard certification, Keith applied for a lifeguard position at Oakland County’s wave pool. The job announcement required each applicant be at least 16 years of age and pass the County water …

Eighth Circuit Holds Shift Rotation Can Be An Essential Job Function

Two of the more difficult reasonable accommodation requests that employers see are requests to be excused from shift and/or job rotation requirements. Last week, the federal Eighth Circuit Court of Appeals held in Kallail v. Alliant Energy Corporate Services, Inc. that an employer’s shift rotation requirement was an essential job function that permitted the employer to deny an employee’s request to be excused from the requirement as a reasonable accommodation for her Type I diabetes. In Kallail, the plaintiff was responsible for monitoring the distribution of electricity, gas, and steam throughout the company’s service territory, scheduling and routing resources …

Employer Refusal to Provide a “Fragrance-Free” Workplace May Violate ADA

Presume for a moment an employee complains to Human Resources that a co-worker’s perfume makes her want to choke. The workplace sometimes brings us "closer" together and one worker’s scent can be another worker’s source of distraction or even discomfort. If the complaining employee’s problem is just a matter of personal preference, then the employer has no legal duty to take action, but may want to explore a diplomatic way to resolve the dispute. On the other hand, a recent decision by the United States District Court for the Southern District of Ohio shows that, in some circumstances, this issue …

Sixth Circuit Rejects FMLA Retaliation Claim Based On Employer’s Honest Belief That Employee Had Committed Fraud

Employers often defend against discrimination and retaliation claims by arguing that courts should not act like super human resources managers who second guess their employment decisions. A panel of the Sixth Circuit took that argument to heart in its May 8th decision in Seeger v. Cincinnati Bell Telephone Co., in which the court upheld summary judgment in favor of the employer on the ground that the employer had an “honest belief” that the plaintiff had engaged in disability fraud.

Tom Seeger was on FMLA leave for aback injury when he was spotted at the Cincinnati Oktoberfest by several of …

Fourth Circuit Rejects EEOC Position That Supreme Court Cleveland Decision Does Not Apply To Enforcement Actions

In 1999, in Cleveland v. Policy Mgmt. Sys. Corp., the U.S. Supreme Court held that in order to avoid summary judgment in a disability discrimination case brought under the ADA, a plaintiff must provide a "sufficient" explanation regarding any conflicting statements made in a Social Security disability application.  According to the Supreme Court, that explanation must be "sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good-faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions’ of her job, with or without ‘reasonable accommodation.’"

Last week, in EEOC v. Greater

EEOC Issues Revised Publication on Employment of Veterans with Disabilities

The EEOC recently issued a revised publication on the employment of veterans with disabilities. According to the EEOC, the publication reflects changes in the law made by the ADA Amendments Act of 2008 (ADAAA), which made it easier for persons, including veterans, to establish they meet the definition of “disability.” The wide range of impairments covered by the ADAAA include those that are often not well understood, including post-traumatic stress disorder (PTSD), major depressive disorder, and traumatic brain injuries, as well as deafness, blindness, partial or missing limbs, and mobility impairments. This is an issue that will become of increasing …

Refresher on Alcohol Testing and the ADA

Many employers may be surprised to learn that the ADA’s prohibition of medical examinations treat alcohol tests differently from tests for illegal drugs.

Under the ADA, employers may not require employees to undergo medical examinations or inquiries unless they are job-related and consistent with business necessity. Unlike tests for illegal drug use, the EEOCs’ enforcement guidance considers "blood, urine, and breath analyses to check for alcohol use" to be a medical examination under the ADA. Case law is sparse, but courts have generally followed the EEOC guidance.

So, if employers want to ensure their workers aren’t under the influence of …

Sixth Circuit Orders Reinstatement and Overturns $4.4 Million Front Pay Award In Vet’s Disability Discrimination Case

The recent Sixth Circuit case of McKelvey v. Secretary of United States Army highlights the plight of many disabled veterans returning to the civilian work force and presents a lesson for employers on how not to address those issues.

James McKelvey, an Army veteran who lost his right hand and suffered other serious injuries while trying to defuse a roadside bomb in Iraq in February 2004, returned to work at the Detroit Arsenal where he claimed his supervisors and co-workers at the armory constantly harassed him by calling him "cripple," and "worthless," and not assigning him an equal workload. McKelvey …

EEOC’s Informal Discussion Letter Merits Re-Evaluation of High School Diploma Requirements

Employers frequently require a high school diploma as a condition of employment. Employers not only look to hire individuals who possess basic skills in reading, writing and math, but also believe that having a high school diploma demonstrates a level of maturity and perseverance.

That requirement seems reasonable — except when it "screens out" individuals based on their protected status. For instance, the EEOC has long taken the position, upheld by the courts, that high school diploma requirements have an adverse impact on minorities and therefore can be used only when a high school diploma can be shown to be …

Verizon Consent Decree Provides Road Map For Surviving EEOC Scrutiny of No Fault Attendance and Leave of Absence Policies

On July 6, 2011, the EEOC announced a settlement with Verizon of a nationwide class action lawsuit alleging that Verizon violated the ADA by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. According to the EEOC’s press release, Verizon violated the ADA by failing to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations. In addition to requiring the payment of …

EEOC Releases Final Rule on ADAAA-Expect Continued Increase in Disability Charges

Yesterday, the EEOC released its Final Rule implementing the American with Disabilities Act Amendments Act, which we discussed back in September 2008 and which was signed by President George W. Bush on September 25, 2008. The Final Rule, which runs 202 pages long, includes many revisions. But the most significant revisions as discussed in the EEOC’s Fact Sheet are:

  • The definition of disability should be interpreted broadly in favor of broad coverage of individuals, in direct contradiction to several Supreme Court decisions that had, according to Congress, too narrowly interpreted the definition of "disability;"
  • The determination of whether an individual

EEOC Report On Charge Statistics Provides Lessons For Employers

 Yesterday, the EEOC released its charge statistics report for its 2009 fiscal year, which ended on September 30, 2009. Not surprisingly, during an economically difficult period, the statistics show a near record number of charges filed — 93,277 — which is second only to the 2008 fiscal year when 95,402 charges were filed.

As usual, sex and race discrimination charges led the pack, but they also showed a slight decline from the previous fiscal year. Somewhat surprisingly, during a period that saw extensive reductions-in-force, age discrimination charges were significantly down. On the other hand, disability discrimination and retaliation charges showed the …

EEOC Publication Summarizes Requirements for Discrimination Waivers

On July 15, 2009, the EEOC published “Understanding Waivers of Discrimination Claims in Employee Severance Agreements,” a document directed to employees facing layoffs. The publication is not apparently intended to change existing regulations, but rather to summarize the legal requirements for severance agreements under the ADA, Title VII, the Equal Pay Act, and, separately, the Age Discrimination in Employment Act.

As noted by the EEOC’s summary, in order to minimize the risk of potential litigation, many employers provide laid-off employees with optional severance agreements, by which employees may obtain certain compensation or benefits in exchange for releasing the employer from …

EEOC Issues Technical Guidance on ADA-Compliant Employer Preparedness for the H1N1 Flu Virus

We have been receiving more and more questions from human resources professionals asking how the ADA might impact their preparation for a potential pandemic flu. Now the EEOC has issued technical guidance on the topic, focused primarily on employers’ rights to make medical inquiries and require medical examinations of applicants and employees.  With respect to applicants, the EEOC notes that the ADA operates normally to preclude all disability-related questions and medical exams until after a conditional offer has been made.  With respect to current employees, who can be required to respond to medical inquiries or undergo medical exams only if they are …

Disabled Former Employees Lack Standing to Sue under ADA

The Sixth Circuit weighed in on an issue that has split the federal courts and has joined the Seventh and Ninth Circuits in holding that disabled former employees lack standing to sue under Title I of the Americans with Disabilities Act. McKnight v. Gen. Motors Corp., No. 07-1479 (6th Cir., Dec. 4, 2008). The Court found that three General Motors Corp. retirees lacked standing under the ADA to challenge the reduction of their pension benefits when they started receiving Social Security disability benefits. …

President Bush Signs the ADA Amendments Act

President Bush signed the ADA Amendments Act (S. 3406) into law Thursday, September 25. The new provisions, intended to clarify and strengthen protections Congress intended to guarantee in the original ADA, go into effect on January 1, 2009. For more information on the provisions of the new law and what the law means for employers, please read our previous postings where these issues are discussed in more detail.…

ADA Amendments Act Passed by House and Senate; President Expected to Sign Bill

On Wednesday, September 17, by voice vote, the House of Representatives approved the Senate version of the ADA Amendments Act (ADAAA) (S.3406), which the Senate had unanimously approved last week. The White House immediately issued a statement that President Bush looks forward to signing the bill into law. Once signed, the ADAAA will take effect on January 1, 2009.

The Senate bill differed slightly from the previously passed House version. For employers, the most significant difference between the two bills is the decision to eliminate a definition for “substantially limits,” which was included in the House bill. Instead, the new bill directs the …

House Overwhelmingly Approves ADA Amendments Act

The U.S. House of Representatives overwhelmingly passed the ADA Amendments Act, H.R. 3195, by a vote of 402-17. The bill would amend the Americans with Disabilities Act (ADA) and reject several U.S. Supreme Court decisions that have narrowed the scope of the ADA’s protection. If enacted, the bill would be effective January 1, 2009.

The intent of the bill is to restore the broad scope of protection available under the ADA.  The legislation includes the following key provisions:

  • The definition of disability is to be construed broadly.
  • Clarifies the definition of “disability” by:
    • Defining “substantially limits” to mean materially restricts (rather than