Articles Posted in Americans with Disabilities Act (“ADA”)

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Kohl’s Department Stores, Inc. is fighting lawsuits brought by disabled individuals. Initially, the individuals sought class action status against the Wisconsin-based stores, but a judge felt that separate actions would advance more efficiently through the courts. This has forced Kohl’s to defend itself on numerous fronts.

Disability-55444138-001The original lawsuit was brought by The Equal Rights Center (ERC), a non-profit civil rights activism organization out of Washington, D.C. In the complaint, Kohl’s is alleged to have operated in violation of Title III of the American’s with Disabilities Act (ADA). Specifically, the stores were accused of “denying shoppers with disabilities the ability to successfully navigate their stores … .” Upon being notified of problems in Kohl’s stores by various members, the ERC surveyed the stores, which they determined were in violation of the ADA.

The ERC sought class action status, but Kohl’s argued against it. A judge found in favor of Kohl’s in this matter, and allowed each discrimination case to proceed separately. Now, Kohl’s is seeking to have the claims of one plaintiff, Devora Fisher, dismissed. Fisher alleges that she made multiple complaints to store management about her inability to maneuver her wheelchair through the aisles. When the complaints were not addressed, Fisher went to the ERC.

Another plaintiff, Patricia Thomas, must use a walker or scooter because of her multiple sclerosis diagnosis. She similarly alleges that she was unable to navigate the Kohl’s stores in her hometown and that her complaints went unaddressed.

In the Fisher case, Kohl’s is arguing that the claims are barred by the doctrine of res judicata which means that the second lawsuit cannot proceed if it is based on three claims that were satisfied in the first lawsuit. The judge has yet to rule on this matter.

In the Thomas case, the judge did not agree with Kohl’s motion for summary judgment. Instead, the court argued that the plaintiff “has set forth a plausible proposal for barrier removal … .”

Complaints about ADA compliance should never fall on deaf ears. Take these matters seriously from the beginning, and it may be possible to avoid costly and distracting litigation.

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Service and support animals are becoming an increasingly common sight, especially with so many veterans suffering from PTSD. These animals are trained to meet the physical, psychological or emotional needs of disabled people. This makes them an indispensable part of everyday life for thousands.

Lawsuit-64354059-001Many public places that do not normally allow animals make exceptions for service animals. This is also true on airlines. However, American Airlines recently settled a lawsuit in connection with an incident in which a veteran says she was harassed and discriminated against when she tried to board a plane with her service dog, Jake.

Lisa McCombs served in the American military in Iraq and Afghanistan. As she suffered from PTSD, upon her return to civilian life, McCombs was partnered with Jake, a support dog that was trained to move closer to McCombs when she experienced trauma or stress. These behaviors are intended to provide reassurance and to help ward off panic attacks.

McCombs and Jake are constant companions, but when she tried to board a flight in Kansas in 2015, American Airlines employees blocked her from boarding with her dog. Apparently, employees did not believe the dog was a service animal despite McCombs having appropriate paperwork and the presence of an identifying vest on the dog. Moreover, McCombs had called in advance to inform the airline that she would be flying with a service animal.

McCombs and Jake were denied boarding two days in a row in Kansas. More alleged harassment followed at a Texas airport. She filed a lawsuit under the Air Carrier Access Act. This law essentially states that airlines cannot discriminate against air travelers based on disabilities. In an answer, American Airlines argued that the law does not provide individuals with the right to privately sue.

Nonetheless, the case has now settled with undisclosed terms. A spokesperson for the airline says that the settlement was to the parties’ mutual satisfaction, and he also thanked McCombs for her service.

Understanding the rights of Americans with disabilities is crucial to avoiding discrimination lawsuits. Contact attorney Rich Oppenheim to learn more.

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It is vital for employers to understand any physical limitations that their employees have. Not responding appropriately can lead to serious legal trouble.

ADA-138029727-001It’s a situation that happened recently in Union City, Georgia where a police detective sued her former employer. Jacqueline Lewis is an African-American woman who had been employed by the department for 10 years when her career stumbled. Lewis suffered a heart attack in 2009 and was diagnosed with a chronic heart condition.

This condition didn’t render her unfit, so Lewis continued in her role until the department decided to require all employees to carry a Taser. As a part of the training, each employee was expected to submit to a five-second shock. Participants had to seek the consent of their physician prior to the training, but Lewis’ doctor refused permission because of her heart condition.

Lewis’ superiors placed her on administrative leave, and a series of mishaps appears to have worsened relations between Lewis’ doctor and the police department. By day 21 of her leave, Lewis had been terminated, with her employer arguing that she had exhausted her leave time.

Lewis promptly filed a discrimination lawsuit, citing disability, race and gender as the grounds. The complaint detailed the stories of two white, male officers who had been given considerably more time before they were terminated for not meeting the physical ability requirements.

A district court didn’t agree that Lewis had demonstrated her status as a qualified individual under ADA. Additionally, they said that the male employees she compared herself to were not “similarly situated.” Lewis appealed this decision, and the Eleventh Circuit found that Lewis’ heart problems did not make her disabled. However, the department’s decision to treat her as if she was gave her protection under ADA. The circuit court also argued that there may be evidence of gender and race discrimination. They ruled that the case should be decided by a jury.

This case illustrates how crucial it is for employers to treat their employees with care. That treatment may grant them some protection under the law to which they wouldn’t otherwise be entitled.

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Most companies have websites today. In fact, there are few business owners who would consider operating without one. That is because consumers are placing increasing reliance as websites to serve as proxies for brick-and-mortar locations. They may expect to shop, procure coupons, order photographic prints or even refill prescriptions from a website that is connected to a retail location.

ADA-138029727-001Everyone appreciates the convenience of being able to take care of a few errands online. However, not every company has fully considered whether or not their website is equally accessible to all users. That problem is at the heart of a recent lawsuit in Florida in which a legally blind man prevailed over well-known grocery chain Winn-Dixie.

Juan Carlos Gill liked shopping at Winn-Dixie because of its affordable pricing and convenient locations. An ad on television alerted him to the fact that Winn-Dixie’s website provided the ability to get digital coupons and refill prescriptions. When he tried to take advantage of these conveniences using the enhanced online software that allows a sight-challenged person to use the Internet with ease, Gil discovered that the Winn-Dixie website was incompatible. Try as he might, he could not avail himself of the useful services on the website that were readily available to consumers who were not sight impaired.

Gil sued Winn-Dixie for violations of the Americans with Disabilities Act, or ADA. Eventually, a two-day bench trial was held with Judge Robert N. Scola, Jr. presiding. Judge Scola ultimately sided with the plaintiff based on what he says is the company’s violation of Title III of the ADA. A witness for Winn-Dixie had testified that the company was in the midst of establishing its website’s ADA policy, and that they had set aside $250,000 for the task. An expert witness for Gil argued that his firm could have made the conversions for as little as $37,000. What’s more, relatively little time would be necessary to make the website accessible to the vision impaired.

Winn-Dixie might appeal this decision, but it is a timely reminder that all company websites should be reviewed for ADA compliance.

One more note of interest: Late last month Gil filed another similar lawsuit. In his lawsuit Gil is asking a federal court to force the owners of Germain Arena in Florida, Gale Force Sports and Entertainment, to make its website accessible to blind internet users.

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In general, most employers are happy to grant reasonable accommodations under the Americans with Disabilities Act. This does not mean that there aren’t limits to which an employer is willing to go. What’s more, employers are by no means obligated to grant every request for ADA accommodation that they receive.

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As an example, consider the case of a librarian employed at Florida Atlantic University. The librarian had suffered from epileptic seizures since childhood, and she had long known that stress aggravated her condition. In an EEOC claim and a lawsuit that she eventually filed against her employer, she asserted that the university had failed to acquiesce in her requests for reasonable workplace accommodations. It seemed that the librarian thoroughly disliked her supervisor’s management style, and that the stress she suffered on the job caused her to have more frequent seizures.

Although her employer accommodated some of her requests, such as ensuring that there were no sharp corners in her cubicle, they declined to grant other requests. They denied requests related to the “rough or harsh” treatment that she alleged came from her supervisor. She demanded that he be ordered to cease the “series of hostile confrontations,” which she said that he repeatedly used with her and that the university find a way to “sensitize” him to the needs of women with epilepsy.

The university did not feel compelled to grant the requests that they believed were vague and difficult to define, and the courts agreed with them. In testimony, the plaintiff could not cite specific instances of confrontational behavior. Moreover, the court argued that it was not the responsibility of the employer to provide a work environment that was free of stress, and that it was not possible for the plaintiff to “immunize herself from stress and criticism.”

This outcome demonstrates that employers are well within their rights to refuse requests for accommodations under ADA when they are not specific and reasonable. Nonetheless, it is crucial that all such requests be thoroughly investigated, preferably under the guidance of legal counsel, to ensure that a legitimate request is not ignored.

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Well-known clothing retailer Abercrombie & Fitch has taken plenty of media heat thanks to its restrictive “look policy.” At one time, they dictated everything from the length of employees’ fingernails to the color of their hair. In addition, employees were required to purchase clothes from the retailer.

Lawsuit word breaking through red glass to illustrate legal action brought by a plantiff against a defendant in a court of law through opposing lawers or attorneys

Abercrombie & Fitch is now being sued for this aspect of their look policy. Judge Jesus Bernal recently ruled that a lawsuit that was originally filed by two former employees could move forward as a class action. The class could potentially have thousands of members, making this case much more significant, and possibly much more costly, if the plaintiffs prevail.

At the heart of the lawsuit is the store’s policy that required its approximately 62,000 employees to exclusively buy their work attire through the brand. The complaint, which was filed in California, notes that workers were expected to purchase clothes at least five times per year to coincide with the seasonal fashions found in the stores. Allegedly, all employees were given a “style booklet” outlining what they were supposed to buy and how it should be worn.

The complaint claims that this policy caused the hourly pay rate to fall below minimum wage. At the same time, the plaintiffs say that Abercrombie benefited from the policy. Although employees received a discount on their purchases, the retailer nonetheless made a substantial profit through requiring workers to shop there. Moreover, employees working on the sales floor were considered “models” who were displaying the store’s latest fashions. This enticed customers to spend more money to attain the same look that employees were wearing.

Abercrombie has already drawn fire for refusing to hire a Muslim female who needed to wear a hajib and for firing another worker who had a prosthetic arm. Their situation provides a helpful reminder for other employers that employee dress codes need to be well thought-out and reasonable. Most importantly, they should be in line with the law and all Constitutional rights. It is a wise idea to have an experienced attorney review a dress code policy to minimize the opportunities for litigation.

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Home improvement retail giant Lowe’s has agreed to pay an $8.6 million settlement to disabled workers that the company fired. The agreement was reached after the federal government’s Equal Employment Opportunity Commission filed a lawsuit against the company in California.

Gardne center worker in a wheelchair holding a flower pot in a greenhouse

The settlement money will be distributed to former Lowe’s employees who were fired from the company between January 1, 2004 and May 13, 2010. Eligible employees were terminated after exceeding the company’s 180-day or 240-day medical leave policy. All of the affected employees were either disabled, “regarded as” disabled or were associated with someone who was disabled.

While Lowe’s stipulated a maximum leave policy of either 180 days or 240 days, officials with the EEOC argued that the policy was not in line with the Americans with Disabilities Act, or ADA. In fact, the EEOC charged that Lowe’s “engaged in a pattern and practice of discrimination” against employees who were disabled. Moreover, the lawsuit argued that Lowe’s routinely failed to provide adequate accommodations for disabled workers.

Also as a part of the settlement agreement, Lowe’s is required to hire ADA consultants who can help to reshape the company’s leave policies and assist them to address accommodation issues. Lowe’s will be required to create a system for recording and tracking employee requests for accommodation and how those requests are dealt with. Additionally, staff and management members across the company will be asked to undergo training related to ADA issues.

Lowe’s executives argue that they revamped their leave policies and more closely examined their compliance with ADA in 2010. Nonetheless, they agreed to this settlement to further the effort to comply with all facets of the ADA.

Lowe’s situation acts as an important lesson to other employers who are not sure if they are in compliance with all applicable aspects of ADA. Hiring a consultant or seeking legal advice before a serious problem arises is the best way to avoid a costly lawsuit from the EEOC or a former employee. Proactive measures toward offering accommodations and not violating ADA medical leave policies are important for any company that is seeking long-term success.

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Schools and businesses beware. Electromagnetic Hypersensitivity Syndrome (EHS) may be hurting your students, employees and customers. While Science has not yet proven a causal link between EHS and the symptoms of its growing numbers of sufferers, lawsuits are being filed here in the US and abroad.

WiFi%20sign%2068234810-001.jpgA woman in France has been awarded about $32,000 in compensation for pain and suffering brought about by an allergy to WiFi. She claimed that she was forced to relocate to the countryside because digital wireless transmissions caused her severe discomfort. Her award will be paid out over the next three years.

Recently, the parents of a 12 year old boy in Southboro Massachusetts have filed a lawsuit claiming that the schools WiFi signal is causing their son to become ill and lose focus and concentration in school.

The complaint alleges that the boy was diagnosed with EHS after experiencing headaches, nausea and nosebleeds after the Fay School installed new, stronger wireless internet equipment in 2013. The lawsuit seeks accommodations and $250,000 in damages.

The World Health Organization acknowledges that EHS is a collection of symptoms, but clarifies it is not a medical diagnosis, and the symptoms may not be caused by a single medical problem.

A number of EHS sufferers have relocated to Green Bank, West Virginia in the Appalachian foothills. Green Bank is within the 13,000 square mile radio free zone in the US. Virtually all wireless devices are against federal law in that zone.

Is the beginning of a trend of EHS lawsuits? Should schools and businesses pay closer attention to the wireless waves being showered on anyone nearby? Will EHS become an ADA issue/category? It is just too soon to tell, but we will keep you informed.

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A California appellate court has ruled in favor of a white employee who suffered from discrimination by his Hispanic boss. The court ordered the City of Los Angeles to give James Duffy $3.2 million for the harassment he received from his supervisor, Abel Perez.

Retaliation%2032004699-001.jpgAccording to court records, Perez told Duffy that he hated Caucasians. Three of Duffy’s Hispanic coworkers related that Perez also told them that he was biased against white people. Additionally, the court determined that Perez harassed Duffy because he was disabled.

Duffy was a gardener for the city from 1991 until 2010. In 2001, Perez began regularly calling his partially disabled subordinate insulting names and making up reasons to write him up for poor performance.

In 2004, Duffy received a workplace injury that resulted in a traumatic brain injury. The injury caused speech and cognitive difficulties for Duffy, including difficulty thinking and repetitive speech. Perez took advantage of Duffy’s added disabilities, ramping up the abuse and even hiding the man’s tools so that Perez could discipline him for not completing his work. He also forbade other employees from coming to Duffy’s aid.

Although he was eventually investigated and transferred, Perez continued to be Duffy’s indirect supervisor and maintained control over his assignments. Perez assigned Duffy harsher working conditions and began driving past Duffy as the man worked, honking his vehicle’s horn and yelling insults.

Throughout the years of abuse, Duffy made report after report. However, the abuse was never stopped. Perez, who maintains his position with the city, denies Duffy’s claims and insists he has never been disciplined by the parks department.

In spite of Perez’ protestations, however, the original court found in Duffy’s favor. The City of Los Angeles appealed the large settlement, claiming that Duffy waived his right to sue when he accepted early retirement. The city also claimed that video testimony of Duffy’s fatally ill wife taken during her deposition was inadmissible because it was hearsay.

The appellate court dismissed the city’s claims as groundless and ordered it to pay the settlement. According to Duffy’s legal counsel, the case was unusual in the realm of employee harassment cases because of the wealth of direct evidence to prove Duffy’s claims.

The case is James Duffy v. City of Los Angeles, available HERE.

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A U.S. Supreme Court decision made in March 2015 has led the EEOC to issue a new enforcement guidance with respect to pregnancy discrimination. The amendments may impact employers going forward, and it’s best to be aware of the changes now in order to avoid possible future complaints that could lead to lawsuits.

Pregnant%20at%20work%202822222%20%282%29.jpgPart-time worker Peggy Young sued UPS, her employer, for not providing her with reasonable accommodations in relation to her pregnancy. Her doctor wanted her to follow certain lifting restrictions. Young asserted that other workers who had been injured received accommodations similar to those she was requesting, such as light duty, but that she was denied. Her case was decided via summary judgment by a lower court, so Young took the matter to the U.S. Supreme Court. The justices ruled that UPS had committed discrimination against Young because of her pregnancy. Accordingly, the summary judgment was vacated and the case continues on.

The EEOC felt it would be beneficial to issue a new enforcement guidance on pregnancy discrimination. Much of the document remains unchanged since the July 2014 update, which was the first revision to have been made in 30 years. The amendments relate to the treatment of workers who are pregnant and include a portion that addresses light duty work for such employees.

The changes are relatively minimal and leave much of the July 2014 revision unedited. For instance, there is no change on the stance about the illegality of firing or refusing to hire someone because they are pregnant and forced leave policies are still prohibited. Similarly, employers are still required to treat both male and female employees equally when considering parental leave.

Keeping up with EEOC changes is important for human resources personnel and for anyone within an organization who may make employment related decisions. A single misstep can have serious consequences, exposing an organization to long, costly litigation that may damage its reputation. Supervisors and managers may want to consult with an employment attorney regarding these EEOC updates to ensure that they are fully understood before being confronted by these issues in the workplace.