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Total Articles: 84

Serial ADA Plaintiff Declared Vexatious Litigant in Federal Court in California

On April 19, 2020, Judge James V. Selna of the United States District Court, Central District of California, granted a motion to declare pro se plaintiff Peter Strojnik, Sr. a vexatious litigant, requiring him to obtain the permission of the Court before filing any future accessibility lawsuits with the District Court. Federal courts by statute have the discretion to enjoin vexatious litigants.

Reopenings in COVID-19 Era and Employee Disability, Leave Litigation

The flurry of federal, state, and local laws hastily passed in response to the COVID-19 pandemic have affected the workplace in ways employers have not seen before. Now, as employers seek to reopen their businesses, in-house counsel and Human Resources professionals tasked with navigating these uncharted waters should bear in mind which decisions could give rise to disability and leave litigation once the dust settles.

In Wave of Opinions, Court Rejects ADA Requirement for Braille Gift Cards

On Friday, April 23, 2020, Judge Gregory Woods of the Southern District of New York issued a first of its kind decision rejecting the argument that ADA Title III requires business that offer gift cards to also offer them in Braille. Dominguez v. Banana Republic, LLC, 1:19-cv-10171-GHW (S.D.N.Y. April 23, 2020).

EEOC Opines on COVID-19 Testing by Employers

In the past few weeks, the EEOC has updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws on multiple occasions. The EEOC’s most recent update to this informal guidance provides an answer to the following question: “May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?”

EEOC Issues New Guidance Addressing the ADA, Rehabilitation Act and COVID-19

The EEOC issued guidance today (March 18, 2020) to help aid employers who are wondering whether certain actions would violate the Americans with Disabilities Act (ADA) or the Rehabilitation Act, considering the COVID-19 epidemic. The EEOC’s latest guidance stresses that the ADA and Rehabilitation Act do not interfere with or prevent employers from following the guidance of the CDC or other public health authorities. It also provides some guidance for employers on what they can do during this pandemic.

A 2019 ADA decision regarding Ebola may become relevant because of the new coronavirus.

Although the Americans with Disabilities Act (ADA) protects qualified individuals who may be perceived as having a disability, that Act does not protect individuals who may be perceived as possibly becoming disabled in the future. EEOC v. STME, LLC, 11th Cir., No. 18-11121, 9/12/19.

Can an Employer Refuse to Hire an Employee Because of the Employee’s Risk of Developing a Disability?

The Seventh Circuit joins the Eighth, Ninth and Tenth Circuits in holding that such a refusal would not violate the Americans with Disabilities Act. In Shell v. Burlington Northern Santa Fe Railway Company, No. 19-1030, the appellate court addressed the certified question “whether the ADA’s regarded-as provision encompasses conduct motivated by the likelihood that an employee will develop a future disability within the scope of the ADA.”

First Circuit Rules Inconsistent SSDI Statements Doom ADA Claim

In Pena v. Honeywell International, Inc., issued on July 22, 2019, the U.S. Court of Appeals for the First Circuit denied a former employee’s petition for rehearing en banc of the court’s April 26, 2019, decision addressing whether her inconsistent statements on her Social Security Disability Insurance (SSDI) benefits application and complaint precluded her from bringing a claim pursuant to the Americans with Disabilities Act (ADA).

ADA Litigation Lessons Surfaced From a Zamboni Machine

Employers, you see this movie all too often. You tolerate, and then ultimately discharge, a poor-performing employee who displays a bad attitude. Unfortunately, supervisors have not documented the employee’s prior instances of insubordinate and adversarial behavior. In addition, he hurt himself on the job, filed a workers’ compensation claim, and presented medical restrictions. In his mind, he cannot believe that he was the problem. So he sues, alleging that you failed to accommodate his disability and unlawfully terminated his employment.

The ADA, Occupational Injuries and Light Duty

It is not uncommon for employees who are on leave and receiving workers’ compensation benefits to be released to return to work with light duty restrictions. To account for these situations, some employers have designated light duty positions reserved for employees who are released to return to work on light duty after an occupational injury.

Older Applicants Cannot Utilize ADEA to Challenge Neutral Hiring Criteria, Seventh Circuit Rules

The Age Discrimination in Employment Act does not permit non-employees to bring claims under a disparate impact theory, the Seventh Circuit has ruled. Kleber v. CareFusion Corp. (7th Cir. Jan. 23, 2019). Accordingly, in Illinois, Indiana, and Wisconsin, job applicants will not be able to challenge hiring decisions that are neutral, but which disproportionately exclude job applicants over 40.

Second Circuit Adopts Heightened “But-For” Standard But Rejects “Sole-Factor” Test for Disability Discrimination Claims

In a recent 2-1 decision, the Second Circuit Court of Appeals rejected its prior precedent,1 joining the Fourth,2 Sixth,3 and Seventh4 Circuits in adopting a “but-for” causation standard in disability discrimination cases brought under the federal Rehabilitation Act of 1973.5 In doing so, the Second Circuit explicitly noted that, with respect to employment discrimination claims, the Rehabilitation Act incorporates the same causation standard as appropriate under Title I of the Americans with Disabilities Act of 1990, and amendments thereto (ADA).6

Dear Littler: An employee was diagnosed with the measles. What do we do now?

Dear Littler: I just learned that one of our employees has the measles. He works on a floor with 20 coworkers in an open office seating arrangement. Can I tell the other employees why he’s out so they can get tested or monitor their own health? Can I require them to receive the measles vaccine?

The Americans with Disabilities Act Prohibits Hostile Work Environments, Second Circuit Rules

On March 6, 2019, the U.S. Court of Appeals for the Second Circuit decided Fox v. Costco Wholesale Corporation, eliminating any uncertainty concerning whether an employee can assert a hostile work environment claim under the Americans with Disabilities Act (ADA). The court’s ruling is clear: “hostile work environment claims are cognizable under the ADA.”

Flesh Eating Bacteria Ate My Homework

If you’re like most folks, you’ve been wondering “when am I going to see a story mentioning both flesh eating bacteria and reasonable accommodation.”

How the Government Shutdown Impacts Employee Leave Requests

As of midnight December 21, 2018, 380,000 federal employees were placed on furlough. An additional 420,000 are considered “excepted” and have continued working without pay. Federal employers and employees should be aware of how the government shutdown impacts both paid time off requests as well as approved FMLA leaves.

Service Animals and the ADA - Part IV

The Americans With Disabilities Act (ADA) requires covered entities to make "reasonable modifications" in their policies, practices, or procedures when necessary to accommodate people with disabilities. Many individuals with disabilities use a service animal to conduct their daily life activities. Thus, businesses that have a "no pets" policy generally must modify the policy to allow “service animals” into their facilities.

Website Accessibility and Americans with Disabilities Act

An issue frequently raised in “drive-by” Americans with Disabilities Act (ADA) lawsuits is the claim that a company’s website is not accessible to users with disabilities. Some websites can pose significant barriers for people with disabilities including those who (a) are blind or have low vision, (b) are deaf or hard of hearing, (c) have mobility-related disabilities, (d) have some type of learning or cognitive disabilities. In addition to having physically accessible facilities, the ADA requires businesses to have compliant websites, although the ADA and the case law interpreting it are unclear regarding what standards must be met for compliance.

A fully Qualified Promise is No Promise

As law students learn early in first year contracts, not every statement is an enforceable promise. That point formed the basis of a recent decision from the United States District Court for the District of Vermont. See Noel v. Walmart. The case concerned the termination of a pharmacist who suffered from trypan phobia (a fear of needles that causes nausea, dizziness and fainting at the sight of a needle) because he could not administer immunizations for Walmart customers—something that Walmart had determined to be an essential job function.

House Takes a Step to Curb ADA Title III Lawsuits by Serial Plaintiffs and Attorneys

In an effort to curb the onslaught of Americans with Disabilities Act (ADA)Title III lawsuits, which have increased dramatically over the past few years, the House of Representatives passed H.R. 620. The bill requires potential plaintiffs intending to bring lawsuits under Title III (for failure to remove architectural barriers to access from public accommodations) first to provide written notice to owners and operators along with an opportunity to make improvements or repair.

Title III Notice and Cure Bill Passes Initial Legislative Hurdle

The House of Representatives passed a bill on February 15, 2018, that requires Americans with Disabilities Act (ADA) Title III plaintiffs to provide businesses with notice and an opportunity to cure any barriers before filing suit. The Senate must also pass a version of the bill before it can be sent to the White House for signing. Senate passage is reported as uncertain.

Sharing an employee’s EEOC charge with other employees may violate the ADA.

The right to communicate with the Equal Employment Opportunity Commission (EEOC) is protected by federal law. In fact, the EEOC’s Strategic Enforcement Plan identifies, as one of its six enforcement priorities, “preserving access to the legal system.” Recently, one employer learned that a letter from its in-house attorney to its workforce may be viewed as violating federal law by “chilling” employees’ willingness to file discrimination claims.

Bad Back? You’re Fired.

Employers rely upon employees to get the job done. Usually, the “job” requires the employee’s physical presence at work. But injuries and medical conditions throw a wrench in the works. Most employers are at least generally aware of the implications of various federal and state laws governing treatment of employees with medical conditions and injuries. Yet, there is plenty of gray area where employers may be subject to liability. Take for example the recent decision in Severson v. Heartland Woodcraft, Inc. where the Seventh Circuit decided whether an employer could terminate an employee who requested a multi-month leave of absence from employment.

The ADA Is Not a Medical Leave Entitlement, Seventh Circuit Declares

Today’s employers must run their businesses within the competitive environment in which they operate while affording employees an ever-increasing array of leaves. Yet, running a business without a full complement of employees is difficult.

The End of DACA and its Effect on California Employers

This morning, the Trump administration announced the end of Deferred Action for Childhood Arrivals (“DACA”), the Obama Administration’s immigration program designed to shield undocumented immigrants brought to the United States as children from deportation. DACA gave roughly 800,000 people an Employment Authorization Document (a/k/a EAD card) or the right to work in the United States.

Are maximum leave policies legal?

An employer has agreed to pay 2M to resolve a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), according to the EEOC and court records.

Wild Kingdom: ADA and Service Animals

What do a parrot named “Sadie," a Shih Tzu/poodle mix named “Jazz,” and a miniature horse have in common? SC Lawyer called on Nexsen Pruet employment and labor law attorney William Floyd to answer this question.

Groundbreaking Trial Ends with Ruling that Grocery Store Must Make its Website ADA Accessible

In a first, a federal court in Florida ruled recently that a grocery store must make its website accessible to the disabled. The plaintiff in the case, a blind man who uses screen-reading technology to access and view websites, obtained injunctive relief, as well as his attorneys’ fees and costs.

The Continuing Stream of Website Accessibility Claims: A Trial Victory for a Plaintiff and a Dismissal for a Company

Over the past 18 months, the number of claims being filed over website accessibility has increased dramatically.1 Although courts continue to differ as to whether websites are places of public accommodation covered by Title III of the Americans with Disabilities Act (“ADA”), and if so, whether all websites are covered or whether there must be a nexus between a physical location and a website for the website to be a place of public accommodation, litigation over website accessibility continues to proliferate. In recent months, there have been two notable district court opinions in this area.

Interviewing an Individual with a Visible Disability: From the Employer’s Perspective

In a recent Q&A on the “Ask a Manager” blog, an individual wrote in to say that she had a genetic disorder requiring the use of a cane for walking and ring braces for finger stability. Although she had been public about her condition with friends and family, both in person and through social media, she was concerned that a job interviewer might view her ring braces as a form of costume jewelry inappropriate for an interview setting and, presumably, hold that against her. She did not believe that removing the ring braces for the interview was the best approach, both because they would be necessary in the performance of the job(s) for which she would be applying and because she felt that doing so “erased” her disability when she otherwise had embraced it as part of her life.

Ninth Circuit Upholds Owners Rights to Seek Contribution From Third Parties for ADA Violations

In a victory for owners of facilities covered by the Americans with Disabilities Act (ADA), the U.S. Court of Appeals for the Ninth Circuit has upheld a property owner’s right to seek contribution from third parties who fail to perform their obligations to the owner to design or build a facility that complies with the ADA. Many property owners rely on architects, designers, builders, and even ADA compliance experts to help them ensure that their facilities comply with the ADA. This decision restores the power of owners to enforce their agreements with those third parties.

Federal Judge Rules that Transgender Employee's ADA Claim May Proceed

Executive Summary: On May 18, 2017, in the first decision of its kind, the Eastern District of Pennsylvania held that transgender people are not categorically barred from protection by the Americans with Disabilities Act (ADA) if they suffer from gender dysphoria. While it remains true that being transgender is not in and of itself a disability under the ADA, in ruling on the employer’s motion to dismiss in Blatt v. Cabela’s Retail, Inc., the court held that the plain language of the ADA’s exclusion of “gender identity disorders” from the definition of “disability” in 42 U.S.C. § 12211(b)(1) (“the GID exclusion”) must be read narrowly. In so doing, the court held that transgender individuals who experience gender dysphoria are protected by the ADA and, therefore, Blatt could proceed on her ADA discrimination, failure to accommodate and retaliation claims.

Businesses Face Conflicting State and Federal Accessibility Requirements

Many states and localities have their own distinct accessibility laws and regulations for businesses. Often these are not analogous to the ADA.

Employer’s Enforcement of Its Call-In Policy Was Reasonable Vis-à-Vis a Disabled Employee

Employers frequently struggle with enforcement of call-in and job abandonment policies when there has been a lack of communication by a disabled employee. In Alejandro v. ST Micro Electronics (N.D. Cal.) 178 F.Supp.3d 850, the court offers a favorable ruling for employers seeking to enforce such a policy respective to a disabled employee who had been non-communicative about his whereabouts in violation of company policy.

“Goldilocks” Work Environment Not Required Under the ADA

Just over two decades ago, when the ADA was in its infancy and this blogger was a summer associate heading into his final year of law school, I attended a hearing in federal court where the judge was considering a motion to dismiss the ADA claims of a plaintiff-employee.

Federal Court in Los Angeles Dismisses Website Accessibility Claims

On March 20, 2017, a federal district judge in Los Angeles granted Domino’s Pizza’s motion to dismiss a website accessibility lawsuit in a ruling that raises hopes for those battling the massive wave of web accessibility litigation and arguably makes it more difficult for businesses to decide between fight or flight. Robles v. Domino’s Pizza LLC, No. CV 16-6599 SJO (SPx), U.S. District Court for the Central District of California.

4.5 Million Disability Discrimination Verdict Against Auto Dealer Who Failed to Investigate

A federal jury in Florida has awarded $4.5 million against an auto dealer for claims of disability discrimination under the Florida Civil Rights Act (FCRA). Axel v. Fields Motorcars of Florida, Inc., No. 8:15-cv-893-17JSS (M.D. Fla. Feb. 22, 2017).

EEOC Claims Company Didn't Hire Veteran Over Use Of Service Dog

Last week, the U.S. Equal Employment Opportunity Commission filed a lawsuit against freight company CRST Expedited Inc. on behalf of a truck driver trainee who is a veteran. According to the Commission, the employer violated the Americans with Disabilities Act by refusing to hire the trainee because he uses an emotional support dog to manage post-traumatic stress disorder. The EEOC also claims the employer failed to discuss other potential job accommodations with the trainee and retaliated against him by dismissing him from a new driver orientation program for requesting help with his PTSD.

Arizona Judge Finds Standing Is a Must for Serial ADA Plaintiff, Dismisses More Than 1,100 Cases

An Arizona judge dismissed more than 1,100 lawsuits against Arizona businesses alleging that their parking lots are not accessible to persons with disabilities. Judge David M. Talamante rejected the plaintiffs’ argument that the Arizonans with Disabilities Act (AzDA) permits any person who believes a place of public accommodation has violated the act to bring a civil action.

Disability Self-ID form approved for another 3 years

As some of you may have noticed, the current OMB approval for the required disability self-identification form expired January 31, 2017. On the eve of its expiration, OMB approved the form for another three years – until January 31, 2020.

Share WCAG 2.0 AA Gains Prominence as Website Accessibility Standard

The U.S. Architectural and Transportation Barriers Compliance Board (Access Board) finalized a regulation this week that will make the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) Level AA the design standard when interpreting and implementing Section 508 of the Rehabilitation Act of 1973, which requires federal agencies and contractors to make their websites accessible to disabled individuals. Affected federal agencies and contractors will have one year from the publication of the final rule to comply with the revised 508 standards, which would place the compliance deadline sometime in early 2018.

Saying Goodbye to 2016 – It’s Been Quite the Year!

2016 has come to an end and it’s been busy year for disability leave management issues. The year has seen a variety of new developments, including issuance of additional guidance from administrative agencies, new leave and benefit related laws, and a slew of court opinions.

60 Minutes Goes Prime Time with ADA Drive By Lawsuits

In case you missed it, on December 4, 2016, the popular news program 60 Minutes aired a story on the alarming growing number of ADA drive-by lawsuits filed against businesses. A transcript of the story is provided here. Title III of the ADA requires places of public accommodation, such as restaurants, banks, movie theaters and just about any business that sells goods and services to the public, to make their premises accessible to disabled people through a comprehensive and detailed design code called the ADA Standards for Accessible Design.

Must Your Stadium, Theater, or Museum Offer Complimentary Admission to Personal Care Providers?

Are public accommodations required to admit personal care providers for free? That’s the question that the lawyers in our Disability Access Practice Group have been hearing with increasing frequency since the U.S. District Court for the Eastern District of Pennsylvania issued a decision in May of 2016 holding that The Franklin Institute, a nonprofit museum, was required to offer complimentary admission to the personal care attendant of a severely disabled individual. Below we provide a brief overview of the case and its currently narrow reach, an even shorter critique of the decision, and finally a summary of what your public accommodation may want to consider in the wake of the decision. Anderson v. The Franklin Institute, No. 13-5374 (May 6, 2016).

Does the ADA Protect a Customer Service Agent With Dissatisfied Customers? The Ninth Circuit Says No

The Ninth Circuit Court of Appeals recently ruled against a failure-to accommodate claim brought by a customer service employee who was fired for poor performance. According to the court, the former employee, who suffered from endometriosis and headaches, was not able to show that she was qualified to perform the essential functions of a customer service job. Kelley v., Inc., No. 13-36114, United State Court of Appeals for the Ninth Circuit.

Half a Loaf: Court Rejects ADA "Safe Harbor" But Approves Pre-Regulations Wellness Program as "Voluntary"

The EEOC’s attack on employee wellness programs as unlawful under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) that began in 2014 with three lawsuits, and continued with more recent regulations under these laws, has taken another turn. On September 19, 2016, a federal court in Wisconsin denied the EEOC’s summary judgment motion in one of the three cases that directly challenged an employer’s wellness program requiring employees who sought health plan coverage with a wellness component to undergo a medical examination or pay higher premiums. EEOC v. Orion Energy Systems, Inc., Civil Action 1:14:-cv-01019 (E.D. Wis., Sept. 19, 2016).

Half a Loaf: Court Rejects ADA "Safe Harbor" But Approves Pre-Regulations Wellness Program as "Voluntary"

The EEOC’s attack on employee wellness programs as unlawful under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) that began in 2014 with three lawsuits, and continued with more recent regulations under these laws, has taken another turn. On September 19, 2016, a federal court in Wisconsin denied the EEOC’s summary judgment motion in one of the three cases that directly challenged an employer’s wellness program requiring employees who sought health plan coverage with a wellness component to undergo a medical examination or pay higher premiums. EEOC v. Orion Energy Systems, Inc., Civil Action 1:14:-cv-01019 (E.D. Wis., Sept. 19, 2016).

How to Respond When ACA Electronic Reporting Triggers Notification of an Incorrect TIN

The Affordable Care Act’s (ACA) electronic reporting requirements for larger companies may inadvertently notify employers of employees using incorrect Social Security numbers. The ACA requires certain large employers with 50 or more employees to offer qualified healthcare plans to employees or risk paying fines. Employers can report employee insurance coverage with Form 1095-C. In the 2015 tax year, it became mandatory for employers that submit 250 or more Forms 1095-C to do so electronically. The electronic reporting system also automatically checks the employee’s name and Taxpayer Identification Number (TIN), which is almost always his or her Social Security number, against government databases, flagging any mismatches. A mismatch will then generate a notification for the employer. Employers should prepare for mismatch notifications and take care not to run afoul of discrimination laws. Importantly, employers should not automatically assume that the employees whose information generates mismatches are not authorized to work in the United States.

Bridging The App: Apps That Aid Individuals With Disabilities Enter The Workplace

Over the past 20 years, the number of individuals with disabilities in the workforce has increased due in part to the Americans with Disabilities Act (ADA). Contemporary technological developments could help increase this number to an even greater extent over the next several years. A growing number of phone and computer apps, available for purchase with a simple tap, are specifically designed with access needs in mind.

Disability Discrimination Claims Face Stricter Standard in the Fourth Circuit

The Americans with Disabilities Act (ADA) became law over 20 years ago. But until last month, the Fourth Circuit Court of Appeals, which includes North and South Carolina, had never specified a plaintiff’s burden of proving a claim for discrimination under the act. Indeed, lower courts are split over whether a plaintiff must show that his or her disability was a “motivating factor” in the employment decision at issue or that “but for” the disability, the personnel action would not have occurred. In a recent case, however, the Fourth Circuit determined that a plaintiff must meet the more demanding standard and show that “but for” the disability, the employer would not have taken action. Gentry v. East West Partners Management Co., Inc., et al., No. 14-2382, 2016 WL 851673 (4th Cir. 2016).

ADA 'Drive-by' Lawsuits are Targeting Restaurants

An increasing number of plaintiffs’ attorneys are targeting restaurants, bars, and retail establishments in urban areas for “drive-by” lawsuits under Title III of the Americans with Disabilities Act (ADA). Despite its commendable purposes, the ADA has been increasingly abused by individuals, organizations, and plaintiffs’ attorneys for monetary gain.

Harvard and MIT: A Decision Is Here! (Sort Of)

Long after the Department of Justice’s (DOJ) Statements of Interest (SOI) were filed in June of 2015 in the cases involving Harvard University and the Massachusetts Institute of Technology (MIT), touching off a flood of litigation and threatened litigation, the magistrate judge has issued her report and recommendation to the district judge that the defendants’ motions to dismiss be denied. While subject to objections and the district judge’s determination, the decision is a setback for those who do not currently have websites that are accessible to persons with disabilities.

Are Hidden Title III Claims Lurking in Your Business?

With the extraordinary volume of Americans with Disabilities (ADA) Title III claims clogging the courts, and an increase in the number of plaintiffs’ lawyers litigating ADA issues, we can expect to see another flood of Title III cases in 2016. After defending countless “drive-by” lawsuits through the years, we have learned that, for the most part, these suits lack creativity in identifying barriers presented by public accommodations. Put another way, the same types of barriers are routinely alleged in complaints. While few Title III plaintiffs visit retail stores with tape measure in hand, nearly anyone with minimal training can detect a host of technical violations very quickly. The following is a breakdown of the most commonly alleged violations that we see in the disability access cases involving the retailers that we defend.

Serial Accommodation Lawsuits Against Restaurants

Earlier this year, we reported on a spike in the number of ADA public accommodation lawsuits being filed against businesses in Illinois. (FR Alert: Wave of ADA Public Accommodation Lawsuits Continues to Spread, Hits Illinois.) Barely a week into the new year, it is clear that this trend is not going away in 2016. On January 5 and 6, a single “tester” plaintiff filed at least eleven new lawsuits against retailers and restaurants in the Chicago metro area. It is a safe bet that there will be more to follow from this plaintiff and others.

Website Accessibility Regulations Delayed Again! (For At Least Three Years!!)

In a surprise announcement with major repercussions for businesses and their websites, on November 19, the Department of Justice (DOJ) announced in its Fall 2015 Statement of Regulatory Priorities that it is delaying—by at least three years—its proposed regulations on the standards for creating websites that are accessible to the disabled. This is the latest of many delays in the regulatory process that started when the DOJ issued an Advanced Notice of Proposed Rulemaking on web accessibility in July of 2010. 75 Fed. Reg. 43460 (July 26, 2010), The new target date for the website regulations is for some time in 2018.

ADA Suit Not Precluded By State Agency Decision

A district court improperly granted summary judgment to an employer defending against a claim of disability discrimination where the district court relied too heavily on the state agency’s finding that an employee failed to establish his prima facie case of discrimination, the Second U.S. Circuit Court of Appeals held. Cortes v. MTA New York City Transit, 2nd Cir., No. 17-7123-cv (Sep. 4, 2015)

Train Agent’s Lilly Ledbetter Argument in ADA Demotion Claim Left on Platform

A plaintiff may not salvage her untimely ADA demotion claim by alleging that the statute of limitations began anew with each paycheck pursuant to the Lilly Ledbetter Fair Pay Act, according to the Second Circuit Court of Appeals. Davis v. Bombardier Transportation Holdings (USA) Inc. (Second Circuit, July 25, 2015).

Wave of ADA Public Accommodation Lawsuits Continue to Spread, Hits Illinois

In recent weeks, we have seen a surge in Illinois of private plaintiff lawsuits filed under the public accommodation provisions of the Americans with Disabilities Act of 1990 (ADA). Public accommodation lawsuits have been common for nearly a decade in some states, such as California and Florida, but these cases have been filed with increasing frequency in Illinois and other states.

The ADA: A Far Cry From the ABCs (Education Update)

Qualified individuals, reasonable accommodations, undue hardship, fundamental alteration – these terms associated with the Americans with Disabilities Act (ADA) are a far cry from the simplicity of the ABCs, and cause much confusion for schools tasked with complying with the statute. But there can be no question that compliance with the ADA is the subject of increased interest to federal and state governmental agencies nationwide, and that more and more individuals are exercising their rights under the ADA, particularly when it comes to seeking reasonable accommodations.

Jerk Isn't Disabled: However, Can They be Lawfully Terminated

Myra Creighton’s article “Jerk Isn’t Disabled: However, Can They be Lawfully Terminated?” was featured in Legal and Compliance Excellence Magazine on December 9, 2014.

Biggest Loser Contests at Work? Only If They Pass Muster With the EEOC

We are again running a Biggest Loser Contest among our 31 offices and will award prizes, beginning at $1,000, to individuals who lose the most weight.

Disability Access Litigation on the Rise

In an article published recently in The Wall Street Journal (“Disability Lawsuits Against Small Businesses Soar,” October 15, 2014), staff writer Angus Loten reported that accessibility lawsuits brought under the Americans with Disabilities Act (ADA) against public accommodations increased by nearly 55 percent in the first six months of 2014 as compared to the number of filings in the same period in 2013. This increase follows a reported 9 percent increase in disability access lawsuits from 2012 to 2013. The article also reported that many of the lawsuits were brought in California, New York, and Florida.

Does a 100% Healed Policy Violate the ADA? What to Require of Employees Returning From Leave

Earlier this month, the U.S. District Court for the Northern District of Illinois denied a motion to dismiss a claim filed by the Equal Employment Opportunity Commission (EEOC) on behalf of a class of individuals challenging United Parcel Service, Inc.’s leave policy. The EEOC claimed that the challenged policy, under which employees will be “administratively separated” from employment after 12 months of medical leave, violates the Americans with Disabilities Act (ADA). EEOC v. United Parcel Service, Inc., No. 09C5291 (February 11, 2014).

Participation in a rehabilitation program does not always trigger the ADA's "safe harbor" provision for prior addictions.

Under the provisions of the American with Disabilities Act (ADA), as well as under many parallel state laws, individuals who successfully have completed a supervised drug rehabilitation program and who are no longer engaged in the illegal use of drugs are protected from employment discrimination. However, courts that have reviewed cases under this “safe harbor” provision also have held that the provision applies only to individuals who have been drug-free for a “significant” period of time.

Disability Discrimination Law Is a Mess in More Than Ohio

Jon Hyman, at Ohio Employer's Law Blog who does a great job of keeping up with developments in the Buckeye state and beyond, has an interesting post about the differences of the definition of disability under the ADA and the Ohio state version. Because of that difference, it's hard not to agree with his conclusion, Disability discrimination law in Ohio is a mess.

EEOC has issued final regulations implementing the ADAAA.

The ADA Amendments Act (ADAAA) was signed into law by President George W. Bush on September 25, 2008. On March 25, 2011, and after review of over 600 public comments, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the enforcement of that Act. Check the EEOC’s website at for a summary of the provisions of those regs (Fact Sheet on the EEOC’s Final Regulations).

New ADA Rules Provide Much Needed Clarification

After a lengthy wait, the Equal Employment Opportunity Commission (EEOC) has issued final regulations and interpretive guidance for the Americans With Disabilities Amendments Act (ADAAA), the new disability law which was passed in 2008. Many employers were prepared for the worst after the agency first proposed dramatic and game-changing regulations in 2009 which would have tilted the playing field even further in favor of employees. Although the final regulations published on March 24, 2011 strongly emphasize that the law's coverage is to be quite broad, the EEOC pulled back from its original position and published regulations that are fairly consistent with the statute.

EEOC Releases Final Regulations to ADA Amendments Act

Yesterday, the Equal Employment Opportunity Commission (EEOC) released the much-anticipated final regulations (PDF) for the ADA Amendments Act of 2008. The EEOC will publish the regulations in the Federal Register today, and they will become effective in 60 days, on May 24, 2011. The EEOC has issued a press release highlighting the release of the new regulations. It also has drafted a "Questions and Answers" guidance sheet and a fact sheet to better aid employers in understanding the final regulations.

Hospitality Industry: Changes In ADA Accessibility Standards Are On The Way.

On July 26, 1990, President George H. W. Bush signed into law the Americans with Disabilities Act (ADA). The ADA provided broad anti-discrimination prohibitions against disabled individuals in several areas, including employment, state and local government services and facilities, public accommodations, and telecommunications.

Hospitality Industry: Gone To The Dogs: Rules on Service Animals to Become Much Stricter

Regulations issued in 1991 following the enactment of the Americans with Disabilities Act (ADA) required that public accommodations (which include restaurants, hotels, retail establishments, theaters and concert halls) modify their policies, practices, or procedures to permit the use of a service animal by an individual with a disability. Essentially this means that service animals accompanying persons with disabilities have to be admitted to establishments with policies otherwise excluding pets or other animals.

Changes In ADA Accessibility Standards Are On The Way

On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act (ADA). The ADA provided broad anti-discrimination prohibitions against disabled individuals in several areas, including employment, state and local government services and facilities, public accommodations and telecommunications.

The Office of Disability and Employment Policy Releases a “Return-to-Work” Toolkit for Employers and Employees

President Obama declared October as "National Disability Employment Awareness Month 2010." To that end, the Office of Disability and Employment Policy (ODEP) recently released an online return-to-work toolkit for employers and employees. According to the ODEP, this toolkit is intended to offer insight into the return-to-work process and apprise employers and employees about their rights and responsibilities following an employee’s disability-related leave of absence.

Cautionary Comments as the ADA Nears Adulthood.

Turning 21 is a much bigger deal than turning 20 if you are one who is looking forward to consuming adult beverages legally. But if you are a statute, twenty years is a nice point for others to weigh in on your success.

Employees With Medical Marijuana.

One of the most common questions I hear from clients is: "We have an employee with a medical marijuana card; what do we do?" Employers often are unsure about their rights and responsibilities when it comes to dealing with employees who hold the legal right to smoke marijuana in the state of Oregon. Many are concerned that such employees are immune from discipline, and have the legal right to smoke pot in the workplace without consequences. Others believe firmly that they can terminate any such employee without a second thought, but want confirmation before they pull the trigger.

EEOC Issues Long-Awaited ADA Guidelines.

Approximately one year after former President Bush signed the ADA Amendments Act (ADAAA), the EEOC has finally issued proposed regulations and an Interpretive Guidance for public comment. As expected, the new regulations make significant changes in how certain terms under the ADA are defined, which certainly will give rise to more disability claims. Here is a summary of the most significant changes and guidance to the regulations.

Start Out 2009 Right With This Employment Law.

As you plan for 2009, every employer should take steps to address the amendments to the Americans with Disabilities Act (ADA), the new Family and Medical Leave Act (FMLA) regulations, and the anticipated passage of the Employee Free Choice Act (EFCA). The following is a suggested "to do" list.

President Signs Major Overhaul Of The ADA.

President George W. Bush has signed into law a measure (S. 3406) that significantly amends the Americans with Disabilities Act (ADA). Ironically, the original ADA was signed in 1991 by his father, former President George H.W. Bush. The ADA Amendments Act of 2008, which was negotiated by business groups and the disability and civil rights communities (together with its principal congressional sponsors), passed the Senate by unanimous consent on September 11, and it was approved by voice vote in the House on September 17.

Education Labor Letter: Don't Be Handicapped By The "New" ADA.

Schools already receive a number of requests for accommodation based on students' or employees' mental or physical impairments. They can now expect to see more requests and potentially will have to provide more accommodations. On January 1, 2009, the amendments to the Americans With Disabilities Act (ADA) become effective.


Following a summer of blockbuster releases in movie theaters across the country, Congress is delivering its own big-budget thriller to America’s employers. The ADA Amendments Act of 2008 (ADAAA) was passed by Congress on September 17, 2008, and is expected to be signed by President Bush in the near future. Once it becomes law, the ADAAA will go into effect January 1, 2009.

Meet the New ADA: Massive Changes Ahead for Nation's Employers.

In perhaps the most sweeping change to the face of employment law in over 10 years, the recent passage of the "ADA Amendments Act" will mean a massive change for most of the country's employers. These changes, which will go into effect on January 1, 2009, will not only have a tremendous impact on the defense of employment litigation claims, they will require almost all human resource professionals, managers, and business owners to adopt new policies and procedures in dealing with accommodation requests.

Hospitality Labor Letter: BYOGC Policy Doesn’t Cut It Under ADA.

Most golf courses that allow golf carts provide them to players; most of the time players aren't told they can bring their own. Three patrons with serious mobility impairments, who wanted to play golf at a course managed by Marriott International, didn't like being told to bring their own specialized carts. They filed a lawsuit alleging violations of Title III of the ADA and of California state law.

Hospitality Labor Letter: Don't Put Litigation on the Menu.

In light of a recent federal court decision, restaurateurs should reevaluate how their employees handle requests by disabled patrons.

The Latest Litigation Rage: Public Accessibility Lawsuits Against Retail Establishments.

Title III of the Americans with Disabilities Act (ADA) requires retail stores and other public accommodations to accommodate disabled patrons, guests, and members of the public, to the greatest extent possible. Title III specifies that no individual with a disability may be discriminated against or denied the full use of "goods, services, facilities, privileges, advantages or accommodations" offered by a "public accommodation."

Smells Like A Lawsuit: Sensitivity to Fragrances as a Disability.

Supervisors and managers have to handle all sorts of problems arising from people's interactions in the workplace, and some of these tasks are more thankless than others. For example, a complaint about a co-worker's terrible body odor may require an uncomfortable chat about showering regularly and using deodorant. But what about when the complaint is that an employee is wearing too much perfume or cologne?
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