February 2019
Volume 13 Issue 5 
 
 
 

Trainings & Events

AccessibilityOnline Webinar Series
Accessible Sidewalks, Shared Use Paths, and Street Crossings
February 7th, 2019 1:30-2:30 PM CT

Ensuring access to public streets and sidewalks can be a challenge since new guidelines for accessible public rights-of-way have yet to finalized. This webinar will review resources that can be consulted in the interim, namely the guidelines that the Access Board previously proposed for public rights-of-way and shared use paths. Presenters will discuss common access issues and solutions and review proposed requirements for sidewalks and street crossings, curb ramps and blended transitions, detectable warnings, pedestrian signals, on-street parking, street furniture, transit stops and other components of public rights-of-way and shared use paths.
The webinar will review the scoping and technical requirement found in both the PROWAG and 2013 SNPRM which address access requirement for sidewalks, shared use paths, and pedestrian street crossings. The webinar will also discuss requirements for other pedestrian facilities and elements found in the right-of-way such as accessible pedestrian signals, curb ramps, and transit stops

Speakers:
Juliet Shoultz Transportation Engineer Office of Technical and Information Services
Scott Windley Accessibility Specialist Office of Technical and Information Services

For more information visit AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
ADA Audio Webinar Series
The ADA, Businesses and Barrier Removal: What are the Requirements?
February 19, 2019 1:00 -2:30 PM CT

Obligations for businesses operating from existing buildings continues to be one of the most misunderstood requirements of the Americans with Disabilities Act (ADA). People forget that the ADA is a civil rights law and not a building code. Numerous lawsuits and complaints have arisen due to the lack of barrier removal by retail and business establishments on main streets across the country. Tune into this session to learn from our presenters about the ADA requirements for "readily achievable barrier removal" and how it applies to a place of public accommodation.

Speakers:
Nancy Horton Information Specialist, Mid-Atlantic ADA Center
Jennifer Lin Perry Access Specialist, North East ADA Center

For more information visit ADA Audio at https://www.accessibilityonline.org/ADA-Audio/ or call (877) 232-1990
Accessible Technology Webinar Series
What's new with WCAG 2.1?
March 21, 2019 1:00 -2:30 PM CT.

WCAG 2.1 is the new recommendation for organizations looking to address web accessibility. It adds one new guideline and 17 new success criteria that focus primarily on touch inputs that did not exist when WCAG 2.0 was released in 2008. WCAG 2.1 builds on WCAG 2.0 to further consider people using mobile devices, people with low vision, people with cognitive disabilities, and people using speech recognition software. In this session, learn about WCAG 2.1, these new success criteria, and how they might affect your websites.

Speakers:
Melissa Romanotto Accessibility Team, MSF&W Consulting
Nathan Zak Accessibility Team, MSF&W Consulting, Inc.

For more information visit Accessible Technology at http://www.accessibilityonline.org/ada-tech or call (877) 232-1990
 

News from the Federal Agencies

U.S. Access Board

Access Board Resolves 43 Architectural Barriers Act Cases Through Corrective Action

The Access Board was created in part to enforce the first federal law to address accessibility, the Architectural Barriers Act (ABA) of 1968. This law requires access to buildings or facilities that were designed, built, or altered with federal dollars or leased by federal agencies. The Board also maintains the guidelines upon which the ABA Standards are based.

U.S. Equal Employment Opportunity Commission (EEOC)

AccentCare to Pay $25,000 To Settle EEOC Disability Discrimination Suit

AccentCare, Inc., a home healthcare company headquartered in Dallas, has agreed to pay $25,000 and provide other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. The EEOC charged in its suit that AccentCare discriminated against an employee with bipolar disorder by failing to provide a reasonable accommodation.

Day & Zimmermann Will Pay $45,000 To Settle EEOC Disability and Retaliation Suit

Day & Zimmermann NPS, a Philadelphia-headquartered provider of staffing services to the power industry, will pay $45,000 and furnish injunctive relief to settle a lawsuit alleging retaliation and interference with rights the federal agency announced. According to the EEOC lawsuit, an electrician hired by Day & Zimmermann to work during the shutdown of a Waterford, Conn., power plant filed a disability discrimination charge with EEOC under the Americans with Disabilities Act (ADA). After that, the company publicized details of the charge, including the employee's name, union affiliation, and information about the medical restrictions on his ability to work, in a letter to 146 members of his union local.

Federal Court Rules in Favor of EEOC in Disability Discrimination Charge against Amsted Rail

A federal judge ruled in favor of the U.S. Equal Employment Opportunity Commission (EEOC) on Nov. 16 in its discrimination charge against Amsted Rail Co., Inc., the federal agency announced. The judge ruled that Amsted, a leading manufacturer of steel castings for the rail industry, violated federal disability law when it disqualified job applicants based on the results of a nerve conduction test for carpal tunnel syndrome rather than conducting an individualized assessment of each applicant's ability to do the job safely.

American Airlines and Envoy Air to Pay $9.8 Million to Settle EEOC Disability Suit

American Airlines and Envoy Air will pay $9.8 million in stock and provide other relief to settle a nationwide class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC),. The EEOC lawsuit said the airlines unlawfully denied reasonable accommodations to hundreds of employees.

EEOC Issues FY 2017 Performance Report

The U.S. Equal Employment Opportunity Commission (EEOC) made significant progress in managing the pending inventory of charges during fiscal year 2017, which ended Sept. 30, the agency reported in its annual Performance and Accountability Report published on Nov. 15. EEOC offices deployed new strategies to more efficiently prioritize charges with merit and more quickly resolve investigations once the agency had sufficient information.

Strataforce Settles EEOC Disability Discrimination Lawsuit

Strataforce, a staffing firm with offices in California, Indiana, North Carolina, and South Carolina, agreed to resolve a lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC) alleging that the company made pre-offer health inquiries of applicants in violation of federal law. According to the EEOC lawsuit, Strataforce asked applicants to complete an application package that included a detailed medical questionnaire before the company offered the applicant a position or placement.

U.S. Department of Justice (DOJ)

Justice Department Reaches Settlement with Selma Medical Associates Inc.

The Justice Department has reached a settlement agreement with Selma Medical Associates, Inc. ("Selma Medical"), a privately owned medical facility located in Winchester, Virginia that provides primary and specialty care.

The settlement agreement resolves a complaint that Selma Medical refused to accept a prospective new patient for an appointment because he takes Suboxone, a medication to treat opioid use disorder (OUD). The Justice Department determined that Selma Medical regularly turned away prospective new patients who lawfully take controlled substances to treat their medical conditions. Under the agreement, Selma Medical will not deny services on the basis of disability, including OUD, or apply standards or criteria that screen out individuals with disabilities. The agreement also requires Selma Medical to adopt non-discrimination policies, train staff on its non-discrimination obligations, and report on compliance. Selma Medical will also pay $30,000 in damages to the complainant and a $10,000 civil penalty to the United States.

Settlement Agreement between the United States and Advanced Plastic Surgery Solutions

The agreement resolves a complaint filed under title III of the ADA alleging that the Advanced Plastic Surgery Solutions (APSS) refused to perform surgery on apatient because the patient was HIV positive. Within thirty (30) days of the effective date of this Agreement, APSS will submit a draft non-discrimination policy to the United States for its review and approval. The non-discrimination policy will state that it does not discriminate in the provision of services to persons with disabilities, including persons who have HIV or AIDS.

Settlement Agreement between the United States and Louisiana State Penitentiary

The Justice Department has reached a settlement agreement with the Louisiana Department of Public Safety and Corrections, under Title II of the Americans with Disabilities Act of 1990 ("ADA”). Under the agreement the Louisiana State Penitentiary (LSP), also known as Angola, will remove barriers to access for inmates, employees, and visitors with disabilities. LSP will increase physical access at a number of facilities on the 28 square mile campus, including the chapels, education buildings, visitor centers, barber shop, dining hall, museum, rodeo complex, recreation yards, and dorms. LSP also agreed to maintain an ADA coordinator, grievance procedure, work opportunities for inmates with disabilities, and accessible transportation for inmates with mobility disabilities. The agreement has a term of three years.

The Docket

Ninth and Eleventh Circuits: Reporting To Work Impaired, Failing Drug Test, And Failing To Request Accommodation Doom Employees’ ADA Discrimination Lawsuits

January 14 2019

By Squire Patton Boggs - Melissa Legault

As most readers of this blog are aware, the Americans with Disabilities Act (“ADA”) and analogous state laws prohibit employers from discriminating against qualified employees (and applicants) based on known physical or mental disabilities, and also require employers to provide those employees with reasonable accommodations for their disabilities. Although broad in their protections, these laws have limits, as two recent federal appellate court decisions illustrate.

In Connelly v. WellStar Health System, Inc., the Eleventh Circuit evaluated a plaintiff’s claims against her former employer under the ADA for discrimination, failure to accommodate, and retaliation after it terminated her based on its belief that she had reported to work under the influence of drugs.

When evaluating ADA claims of discrimination, courts apply a multi-step, burden-shifting framework, under which the employee bears the initial burden to demonstrate that she is a qualified, disabled individual who experienced an adverse employment action. If the employee establishes these facts, the burden shifts to the employer to provide a legitimate non-discriminatory explanation for its decision, here to terminate employment. If it does so, the burden shifts back to the employee to prove that the employer’s explanation was not the true reason for its actions by showing, for example, that the decision was a departure from the employer’s normal policies, thereby suggesting that the decision was motivated by discriminatory intent.

Under this framework, the plaintiff in Connelly easily satisfied her initial burden by showing that she has a disability and was terminated. In response, her employer explained that it terminated her because she reported to work with undisclosed prescription drugs in her system, which was a violation of the employer’s drug policy. The court found that the employer’s explanation established a “legitimate, non-discriminatory reason” for her termination. The court further determined that the plaintiff did not rebut that explanation because she failed to present any specific evidence that showed that the employer’s explanation should not be believed (or, in other words, that it was a pretext for discrimination). She argued that the employer’s reason was a pretext because the employer did not consult a physician to determine if the unreported drugs actually caused the impairment. The court however rejected this argument, explaining that the employer’s honest belief that the drug were the cause of the impairment was enough to establish a legitimate reason, even if that belief was mistaken. She also argued that pretext could be found because the employer deviated from its policy by not providing her with a chance to dispute the drug test results. The court rejected that argument as well, concluding that this deviation did not suggest discrimination.

The plaintiff’s failure-to-accommodate claim also failed – which was not a surprise as the court determined that she never requested any accommodation. Under the ADA, an employer’s failure to reasonably accommodate can itself constitute discrimination if the individual is otherwise qualified and providing the accommodation would not present an undue burden or hardship to the employer. Although an employee alleging failure-to-accommodate need not show that her employer enforced a policy in a discriminatory manner, and instead only needs to “identify an accommodation and demonstrate that it is reasonable,” the employer is not obligated to provide any accommodation unless and until the employee makes a direct request (unless the need for an accommodation is obvious, i.e., an employee who uses a wheelchair), which the plaintiff in Connelly didn’t.

Last, the court rebuffed the plaintiff’s retaliation claim. The same burden-shifting analysis described above also applies to retaliation cases. However, because she never requested an accommodation, her ADA retaliation claim, which was based on her employer’s supposedly hostile response to a never-requested accommodation, necessarily failed.

The day after Connelly was decided, the Ninth Circuit came to the same conclusion in Fragada v. United Airlines, Inc., a case with very similar facts. In Fragada, the plaintiff’s employment was terminated after he failed a drug test (thereby violating company policy). Like the plaintiff in Connelly, he sued, alleging disability discrimination under the California Fair Employment and House Act (“FEHA”) and disputing the test results. The court, using a similar burden-shifting analysis as was applied in Connelly, concluded that the employee failed to rebut the employers legitimate, nondiscriminatory reason for the firing or show that the employer’s reason for his termination was pretextual. In addition, the court rejected the plaintiff’s failure-to-accommodate claim because, like the plaintiff in Connelly, he had not requested an accommodation in the first instance.

Although straightforward, these cases provide a good reminder of the limits and requirements under the ADA and other similar state laws, and they demonstrate how courts analyze claims under these statutes.

Question

Does the ADA apply to web sites of businesses?

Ninth Circuit Rules That Lack of Web Accessibility Regulations Does Not Bar ADA

Suits | Perkins Coie – JDSupra

The U.S. Court of Appeals for the Ninth Circuit issued a decision on January 15, 2019 in a closely followed web accessibility case, Robles v. Domino’s Pizza, LLC, reaffirming Ninth Circuit precedent holding that companies whose online activities share a nexus with physical places of public accommodation may be held liable under the Americans with Disabilities Act for failing to make their websites and apps accessible to persons with disabilities. Most notably, however, the decision expressly rejected the argument that the lack of regulatory clarity on the ADA’s application to web content violates due process rights. Robles may have ramifications for how other courts consider due process arguments under the ADA in the online context and for other regulatory areas where statutory obligations have not been clarified by federal agencies.

Background on Web Accessibility Under the ADA

Title III of the ADA prohibits discrimination on the basis of disability in “places of public accommodation,” which include, among other locations, restaurants and other establishments serving food and drink. However, the ADA—which was signed into law in 1990, well before the advent of digital platforms and media—does not address whether websites and other online fora are considered “places of public accommodation” for purposes of Title III. The Ninth Circuit has held that the ADA applies to online activity only insofar as there is a sufficient nexus between the allegedly discriminatory goods or services and an actual, physical location. Other courts have rejected the nexus requirement or have not explicitly decided the issue of whether and how the ADA applies to websites.

The U.S. Department of Justice, which is responsible for implementing regulations for the ADA, has taken the view that the ADA applies to websites and mobile apps. In 2010, the DOJ released a proposal to extend accessibility requirements to internet content. But seven years later, the DOJ withdrew the proposal, concluding that it needed to conduct further analysis before determining whether specific technical standards for web accessibility were necessary and appropriate.

Due to the DOJ’s inaction, there remain no generally applicable web accessibility requirements in the United States. However, guidelines developed by the World Wide Web Consortium—known as the Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”)—include voluntary best practices and technical criteria that have been widely adopted by members of industry and certain government agencies as the prevailing standard for web accessibility.

Decision and Analysis

In Robles, a man who is blind filed suit against the pizza delivery chain Domino’s Pizza in federal district court in California, alleging that the company had violated the ADA by failing to make its website and app accessible to blind and visually impaired persons who use screen-reading software. The district court determined that Domino’s website and app—which connect customers to the goods and services available in the company’s physical restaurants—constituted places of public accommodation under the ADA and acknowledged that the ADA mandates the provision of auxiliary aids and services to persons with disabilities. But the district court ultimately dismissed the plaintiff’s complaint, concluding that requiring Domino’s to abide by the WCAG 2.0 guidelines, absent formal guidance from the DOJ on the appropriateness of such guidelines, violated the company’s Fourteenth Amendment right to due process. The district court also invoked the doctrine of “primary jurisdiction,” dismissing the case while DOJ continued to consider whether implementing regulations should issue.

On appeal, the Ninth Circuit reversed and remanded the district court’s decision. The court agreed with the district court’s conclusion concerning the application of the ADA to Domino’s website and app. But the court held that imposing liability on Domino’s under the ADA would not raise due process concerns because the ADA’s existing requirements concerning auxiliary aids and services, coupled with the DOJ’s longstanding position that the Act applies to the websites of covered entities, provided Domino’s with sufficient notice that its website and app must be made accessible. Further, the court determined that the lack of specific regulations from the DOJ did not eliminate Domino’s continuing duty to ensure that persons with disabilities have full and equal access to the company’s goods and services, and that reference to specific WCAG 2.0 standards might be an appropriate form of relief, but the court did not seek to impose liability on Domino’s under this standard. The court also rejected the application of the primary jurisdiction doctrine because application of the ADA was within the court’s competence, and deferral to the DOJ would inevitably mean that relief for the plaintiff would be significantly delayed.

Impact on Other Suits

The decision in Robles is likely to influence how courts in other jurisdictions consider due process arguments made by defendants in web accessibility suits. A case to watch is Gil v. Winn-Dixie Stores, Inc., which raises similar accessibility issues and is currently pending before the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit heard oral arguments in the case in October 2018, but has not yet issued a ruling. Regardless of how Gil is resolved, Robles will likely diminish the force of commonly-invoked arguments that the absence of formal web accessibility rules exempts defendants from ADA liability online. The reasoning in Robles also may be relied on in other contexts where statutory obligations are left relatively undefined but where voluntary standards have come to be seen as the prevailing metric for compliance with such obligations.

Focus

2019 National ADA Symposium

June 16 - 19, 2019

Gaylord Texan Resort ~ Grapevine, TX

Registration Now Open!

This annual four-day event is the most comprehensive conference on the ADA and provides the latest information on regulations and guidelines, implementation strategies, and best practices related to the ADA. Sessions cover all areas of the ADA including employment, state and local government, business, health care, higher education, and facility access. These sessions are presented by nationally recognized experts including representatives of the Dept. of Justice, EEOC, US Access Board, and Dept. of Health and Human Services.

Features of the 2019 ADA Symposium include:

  • Pre-Conference sessions.
  • Over 120 break-out sessions
  • Advanced workshops
  • Exhibits and Exhibitor Reception
  • Welcome Reception
  • Two full breakfast buffets and three lunches

Register before May 17th to save $150 on Attendee registration fees.

Exhibitor Spaces: This year we only have 30 exhibitor spaces available. Go online to register for yours before they're gone!

Sponsorships: If your company or organization is interested in sponsoring this event, please contact Lisa Tucker to discuss sponsorship opportunities.

Discover all the details and a link to registration at http://www.adasymposium.org

If you have questions or encounter any registration issues, please contact Lisa Tucker at (352) 669-0076 or by email at TuckerLi@missouri.edu

National ADA Symposium https://www.adasymposium.org

For more information please call 800-949-4232 (Voice/TTY) or Online via Contact Us form.

Great Lakes ADA Center
University of Illinois at Chicago
Department of Disability and Human Development (MC 728)
1640 West Roosevelt Road, Room 405
Chicago, Illinois 60608-6904
 
 
 
 

Last Updated on:
Wed Feb 13, 2019