October 2020
Volume 14 Issue 1 

Trainings & Events

AccessibilityOnline Webinar Series
Accessible Bathing Facilities
October 24, 2019 1:30 PM CT

This webinar will explain and clarify requirements for bathing facilities in ADA and ABA Accessibility Standards. It will address common questions and sources of confusion concerning transfer showers, roll-in-showers, and bathtubs. Presenters will review components of accessible bathing fixtures, including grab bars, shower and tub seats, shower spray units and controls, and clearances. They will show how these requirements and other provisions in the standards apply and come together in the design of accessible bathing facilities.

Scott Windley, Accessibility Specialist, Office of Technical and Information Services

Dave Yanchulis, Director of the Office of Technical and Information Services, U.S. Access Board

For more information visit AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
ADA Audio Webinar Series
Leave under the ADA and FMLA
Tuesday, November 12, 2019 1:00 PM Central Time Zone

Note special date!
Employee leave under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) continues to be confusing for both employees and employers. Join us for this session as our speaker explains the interplay between employer provided leave, FMLA and leave as an accommodation under the ADA. Following the presentation participants will have an opportunity to ask questions of the speaker.

Joe Bontke, Outreach and Training Coordinator, U.S. Equal Employment Opportunity Commission (EEOC), Houston District

For more information visit ADA Audio at https://www.accessibilityonline.org/ADA-Audio/ or call (877) 232-1990
Section 508 Best Practices Webinar Series
Section 508 in the Acquisition Lifecycle
November 26, 2019 12:00-1:30 CT.

The Acquisition Lifecycle supports the accomplishment of every agency’s mission. It provides processes which help agencies procure, validate, and deploy accessible Information and Communication Technology (ICT). What is the process? Who is involved? What are the important steps that must be followed to ensure the acquisition of conformant ICT? This panel of experts will discuss these and other relevant questions about the acquisition lifecycle and the role played by the Revised 508 Standards to ensure that accessible ICT is accurately described in requirements, procured, validated and deployed. This moderated session will discuss issues that can arise governmentwide, as well as within their respective agencies and how those issues can be addressed by proper planning and program management.

Timothy Creagan, Senior Accessibility Specialist/Information Technology, US Access Board

Yolonda Humphrey,, Program Manager and Section 508 Coordinator, IRS

Betsy Sirk,, Information Technology Program Manager, NASA

John Sullivan,, Government-wide Section 508 Program Director, GSA


News from the Federal Agencies

U.S. Access Board

ABA Complaint and Grassroots Campaign Result in Access to Popular Texas Dam - United States Access Board

Canyon Lake is a popular recreation destination in the Hill Country of Texas located between San Antonio and Austin. Created by construction of the Canyon Dam on the Guadalupe River, the lake and surrounding parkland is a favorite site for swimming, boating, fishing, as well as camping and hiking.

In 2017, the Access Board received a complaint about the accessibility of the Canyon Dam’s service road. The complaint was filed under the Architectural Barriers Act (ABA) which requires access to facilities funded by the federal government. The Board is responsible for enforcing the ABA through the investigation of complaints. The complaint alleged that security fencing at the dam made the road inaccessible because pedestrian gates lacked adequate clearance for wheelchair access. In response, the Board opened an investigation with the U.S. Army Corps of Engineers, which controls the dam and park areas around the lake. The Board found that the ABA applied to the site and that the pedestrian gates did not meet the applicable accessibility standard.

U.S. Equal Employment Opportunity Commission (EEOC)

Transport America to Pay $22,500 and Make Program Changes to Settle EEOC Disability Discrimination Suit

The EEOC announced that it concurrently filed a lawsuit and a resolution of that suit against Transport America, a Minnesota-based trucking company. The EEOC charged that Transport America required a truck driver to pay a fee to have a service dog in his truck, although the animal was required as a reasonable accommodation for the driver's anxiety.

EEOC Sues Enlivant / Assisted Living Concepts For Disability Discrimination

Assisted Living Concepts, LLC d/b/a Enlivant and North Brook Place, a national owner and operator of senior living facilities, violated federal law by failing or refusing to make a reasonable accommodation to an employee with a disability resulting in her termination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed.

EEOC Sues Pirtek USA for Disability Discrimination

Pirtek USA LLC, a fluid power system company based in Rockledge, Fla., violated federal law by firing an employee because of a perceived disability, the U.S. Equal Employment Opportunity Commission (EEOC) announced in a lawsuit filed. According to the EEOC's lawsuit, the Pirtek employee of approximately 10 years was responsible for cutting and transporting hydraulic hoses. In late 2015, the employee was hospitalized for several weeks with pancreatitis, acute respiratory distress syndrome and pneumonia. As of March 2016, the employee's physician cleared him to return to work without restrictions. Nevertheless, Pirtek terminated him, claiming he was a "liability" and that it was afraid he would get injured on the job, the EEOC said.

EEOC Sues Black Forest Décor for Disability Discrimination

Black Forest Décor, LLC violated federal law when it forced a worker with a disability at its Enid, Okla., warehouse to take unpaid leave, despite her ability and willingness to work, and then fired her for exercising the very leave it forced her to take, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the suit, Barbara Berry put Black Forest on notice in February 2018 that she had a medical condition that was likely to require surgery in the coming month, but that her doctor had released her to work until her surgery. In response, Black Forest informed Berry that she was being placed on unpaid leave until her surgery because the company said it was afraid it would be liable if anything happened to Berry while working.

EEOC Sues Convenience Store for Refusing to Hire Clerk with Tourette's Syndrome

Home Service Oil Company, doing business as Express Mart, violated federal law when its Cedar Hill, Mo., convenience store manager refused to hire an applicant for a part-time store clerk position due to his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit. According to the EEOC, the applicant, who has a facial tic caused by Tourette's syndrome, applied for a part-time store clerk position at the Cedar Hill Express Mart in 2017. The EEOC alleged that, after he submitted his application, the store manager made a derogatory comment to the assistant manager about the applicant's facial tic, indicated she did not want someone like him working at the store, and threw his application in the trash.

EEOC Sues Allstate Beverage for Disability Discrimination

Allstate Beverage Company, LLC, a Montgomery, Ala., beverage distributor, violated federal law when it fired an employee with a disabling heart condition instead of providing him with reasonable accommodation of his disability, the U.S. Equal Employment Oppor¬tunity Commission (EEOC) charged in a lawsuit it announced. According to the EEOC's lawsuit, the employee, who worked at Allstate's Montgomery facility as a warehouse administrator, was hospitalized as result of an embolism and needed time off to recover. Within weeks of his release from the hospital, he requested to return to work under certain restrictions pertaining to moving heavier objects. Allstate refused his request and countered that he could only return to work with a full medical release.

American Woodmark Sued by EEOC for Disability Discrimination

American Woodmark Corporation, a wood cabinetry manufacturer, violated federal law when it denied a quality auditor in its Jackson, Georgia manufacturing plant a reasonable accommodation for her epilepsy, migraines, and heart condition, then fired her because of her disabilities and in retaliation for requesting two days of unpaid leave, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.

Pacific Sunwear of California to Pay $85,000 to Settle EEOC Disability Discrimination Suit

Sunwear of California, LLC (PacSun), an Anaheim, Calif.-based specialty retailer that sells casual apparel, accessories and footwear for teens and young adults, will pay $85,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. The EEOC charged in its lawsuit that PacSun violated federal law by failing to hire a paraplegic applicant, who requires the use of a wheelchair, because of his disability.

Citgo Petroleum to Pay $162,500 to Settle EEOC Disability Discrimination Lawsuit

CITGO Petroleum Corporation's Lemont, Ill., refinery, has agreed to pay an applicant $162,500 and provide other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC, CITGO violated federal law when it revoked an offer of employment to an applicant with monocular vision. Despite the applicant's experience working as a contract scaffolder in the refinery for many years, CITGO withdrew its offer of employment after discovering during a post-offer exam that he had permanent vision loss in one eye. CITGO claimed the applicant would be a safety risk to himself or others.

Mercy Medical Center to Pay $570,000 to Settle EEOC Disability Discrimination Lawsuit

Dignity Health, which operates Mercy Medical Center in Redding, Calif., will pay $570,000 and take important steps to prevent future discrimination to settle a disability dis¬crimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. The EEOC's suit charged that the medical center failed to accommodate Alina Sorling, a 10-year cafeteria employee who had survived a severe illness that left her with vision loss. Sorling's work as a food service technician involved tasks such as cashiering, grilling, cleaning and stocking. In 2015, after a successful rehabilitation where she was trained to proficiency in kitchen skills, Sorling sought to return to work and informed her employer of multiple accommodations that she or the California Department of Rehabilitation could provide to allow her to perform her job duties. Dignity Health rejected the suggestions and fired Sorling.

U.S. Department of Justice (DOJ)

Settlement between Justice and the City of Providence Concludes One Year Early

The nation’s first settlement agreement to address the rights of individuals with disabilities to receive integrated employment services, U.S. v. Rhode Island and City of Providence, successfully concluded as to the City of Providence today. The U.S. District Court for the District of Rhode Island terminated the settlement a year earlier than expected. The City rapidly and fully implemented all 45 agreement requirements for youth with intellectual and developmental disabilities (IDD) at Mt. Pleasant Public High School. Prior to the agreement, students with IDD at Mount Pleasant spent school days bagging, labeling, and collating jewelry and similar tasks in an in-school sheltered workshop, apart from their classmates without disabilities. Upon exiting school, most of these students did similar work for sub-minimum wage at a sheltered workshop near the school, despite their ability and willingness to work in integrated settings. But as a result of the City’s success under the agreement, students with IDD no longer spend school days in a sheltered workshop. Instead, they receive services to prepare them for integrated work in careers that match their interests and abilities, in accordance with the Americans with Disabilities Act.

The Docket

Ninth Circuit Adopts But-For Causation Standard in ADA Discrimination Claims

Manatt Phelps & Phillips LLP

September 24 2019

Rejecting the motivating factor causation standard, the U.S. Court of Appeals for the Ninth Circuit declared that the "but-for" standard of causation applies to Americans with Disabilities Act (ADA) discrimination claims.

Dr. Michael Murray filed suit against the Mayo Clinic and related defendants after he was terminated, alleging that his former employer discriminated against him in violation of the ADA. At trial, Murray submitted a jury instruction based on the motivating factor standard of causation.

The district court instead instructed the jury to apply a but-for causation standard to Murray's ADA claim, requiring that the plaintiff prove he was discharged because of his disability. The jury returned a verdict for the defendants on all claims and Murray appealed. Murray pointed to a 2005 Ninth Circuit decision, Head v. Glacier Northwest, Inc., where the federal appellate panel held that ADA discrimination claims should be evaluated under a motivating factor causation standard and argued that the opinion remains good law despite subsequent U.S. Supreme Court decisions.

But the panel disagreed, finding that Head was abrogated by Supreme Court opinions in Gross v. FBL Financial Services, Inc. (2009) and University of Texas Southwestern Medical Center v. Nassar (2013).

In Gross, the justices held that the Age Discrimination in Employment Act (ADEA) requires a plaintiff to prove that age was the 'but-for'cause of the employer's adverse decision, declining to extend the motivating standard of causation to employment discrimination cases brought under the ADEA. Four years later, the Court reached the same conclusion with regard to Title VII retaliation claims in Nassar.

"Because Head's reasoning is clearly irreconcilable with Gross and Nassar, we overrule Head's holding that a plaintiff bringing a discrimination claim under Title I of the ADA need show only that a disability was a motivating factor of the adverse employment action,"the Ninth Circuit wrote. "We hold instead that an ADA discrimination plaintiff bringing a claim under 42 U.S.C. § 12112 must show that the adverse employment action would not have occurred but for the disability."

In Head, the panel relied on the reasoning of sister circuits, but prior Ninth Circuit precedent provided no further analysis of the text or purpose of the ADA in support of applying a motivating factor causation standard, the court said. And the court's switch to the but-for standard follows the decisions of all the circuits that have considered the issue after Gross and Nassar, including the Second, Fourth and Seventh Circuits.

"We join our sister circuits in holding that ADA discrimination claims under Title I must be evaluated under a but-for causation standard," the court concluded.

Murray v. Mayo Clinic opinion.

Why it matters: In an employer-friendly move, the decision brings the Ninth Circuit in line with similar rulings from the Second, Fourth and Seventh Circuits and aligns with Supreme Court precedent in ADEA and Title VII discrimination cases establishing that the but-for standard of causation applies and not the motivating factor standard.

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Are Class Action Lawsuits Permitted under Title I of the ADA?

Eighth Circuit to Decide Viability of Bringing Class Action Claims Under the ADA

Daniel Eric Gonzalez

Hinshaw & Culbertson LLP

The U.S. Court of Appeals for the Eighth Circuit will soon be deciding a case that may have important implications on the viability of class actions for employment discrimination under the Americans with Disabilities Act (ADA). In Harris v. Union Pacific Railroad, the Eighth Circuit will look at whether a large class can be certified in ADA litigation notwithstanding certain individualized inquiries inherent to the ADA.

In Harris, the employer, Union Pacific Railroad, had adopted a fitness for duty policy which required employees to take a medical exam and disclose their health conditions. Using this information, doctors evaluated the employees and determined the percentage of risk that they would become incapacitated. Employees found to have a more than one percent chance of becoming incapacitated were immediately terminated.

A group of employees impacted by the fitness for duty policy filed suit against Union Pacific and alleged that the policy violated the ADA. According to Union Pacific, the fitness for duty exam was necessary to ensure the safety of its employees. The employees claimed the exam was facially unlawful. The employees sought class certification under Rule 23 of the Federal Rules of Civil Procedure.

They sought to include in the class every employee who was subjected to the fitness for duty requirement, which totaled more than 7,000 employees. Union Pacific argued that the class should not be certified, because the ADA requires certain individualized inquiries, such as whether the employee had a disability and whether the employee could perform the essential functions of the position.

The district court certified the class, which included more than 7,000 employees. In order to handle the individualized portions of ADA litigation, the court stated that it would apply a two-step analysis used in pattern or practice discrimination cases. Established by the U.S. Supreme Court in Teamsters v. United States, 431 U.S. 324 (1977), the analysis requires the court to first determine whether the employer had an unlawfully discriminatory employment practice. At the second step, the district court would hold a series of individual hearings to determine the individual ADA inquiries for each employee within the class. In appealing the court's order certifying the class, Union Pacific emphasized the individualized nature of certain ADA issues. In order for a person to prevail on a claim under the ADA, a plaintiff must prove that they are a qualified individual with a disability. This requires the plaintiff to show that he or she was disabled, and prove that they had an impairment that caused a substantial limitation to a major life activity. The plaintiff then must prove that he or she was qualified-meaning that he or she can perform the essential functions of the position with or without a reasonable accommodation. These inherently individualized aspects of ADA litigation seemingly make it unfit for class actions.

The employees argued-and the district court agreed-that these inquiries can be left to the second step of a Teamsters analysis. In response, Union Pacific Railroad appealed to the Eighth Circuit, arguing that the class should not have been certified due to the inherently individualized inquiries under the ADA, inquiries that cannot be left to the second step of a two-step Teamsters analysis.

The Eighth Circuit will have to decide whether a class in ADA litigation can be certified based on the limited issue of the legality of an employment policy-without the court having to dive into the more complex individualized issues under the ADA-or whether the court must determine the individualized issues before certifying the class. A decision in favor of the workers could potentially open the door for increased class action litigation under the ADA, while a decision for Union Pacific could make class actions under the ADA more difficult to maintain. The Eighth Circuit's decision will be one to watch.

Copyright © 2019 JD Supra, LL


National Disability Employment Awareness Month 2019

The Right Talent, Right Now

Reflecting a commitment to a robust and competitive American labor force, the 2019 National Disability Employment Awareness Month (NDEAM) theme is "The Right Talent, Right Now." Observed each October, NDEAM celebrates the contributions of workers with disabilities and educates about the value of a workforce inclusive of their skills and talents. The official 2019 NDEAM poster is available for downloading or to order.

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:
Fri Oct 11, 2019