Trainings & Events
- Differences between someone who is deemed to have a "serious health condition" versus someone who is a "qualified individual with a disability" and how this affects ADA coverage
- How and when medical inquiries can be used to determine coverage under the ADA and FMLA
- Situations where both ADA and FMLA apply
- How FMLA might differ at the federal versus state level
- Differing reinstatement requirements under ADA versus FMLA
- Undue Hardship
- Recent or emerging cases surrounding these issues
- Provide background information regarding the nature of environmental sensitivities including how these disabilities impact individual lives.
- Discuss the prevalence of chemical and electrical sensitivities in the general population.
- Review some of the key public policy issues surrounding the rights of people with environmental sensitivities.
- Highlight the importance of indoor environmental quality to enhanced access for people with these disabilities.
- Discuss what policies and practices can improve access for people with chemical and electrical sensitivities.
- Understand how to reduce or eliminate environmental barriers to promote accommodations for people with environmental sensitivities.
- Review advocacy initiatives that promise to advance medical and disability research, enhance understanding, and promote access for impacted populations.
News from the Federal Agencies
U.S. Equal Employment Opportunity Commission (EEOC)
EEOC Sues Sushi at the Lake for Disability Discrimination
Greenhouse Enterprise, Inc., dba Sushi at the Lake, which operates a restaurant in Cornelius, N.C., violated federal law when it refused to hire a job applicant because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC complaint, Matthew Botello's left arm was amputated above his elbow around November 2010. On or about Oct. 4, 2013, Botello applied to work as a busboy (or "busser") at Sushi at the Lake, and on Oct. 10, Botello was told to report to the restaurant to work the following day. Shortly after Botello arrived on Oct. 11, the restaurant's owner saw that Botello's left arm had been amputated. The EEOC said that the owner gestured at Botello's left side and told Botello that he could not bus tables because he had only one arm.
EEOC Sues FedEx Ground Package System, Inc., for Nationwide Disability Discrimination
FedEx Ground violated federal law nationwide by discriminating against a large class of deaf and hard-of-hearing package handlers and job applicants for years, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it has filed. The EEOC says that FedEx Ground failed to provide needed accommodations such as American Sign Language (ASL) interpretation and closed-captioned training videos during the mandatory initial tour of the facilities and new-hire orientation for deaf and hard-of-hearing applicants.
EEOC Sues The Lash Group for Disability Discrimination
The Lash Group, a Charlotte, N.C.-based consulting company, refused to provide a reasonable accommodation to an employee with post-partum depression and instead fired her because of her disability the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC lawsuit, Meron Debru worked as a reimbursement case advocate at The Lash Group's Rockville, Md., facility when she went on maternity leave. She received short-term disability benefits while on maternity leave and advised the disability benefits carrier that she needed additional unpaid leave due to post-partum depression, the EEOC said. The Lash Group initially fired her, but later extended her short-term disability leave. When Debru was medically released to return to work, however, The Lash Group did not return her to her position as a reimbursement case advocate because it had filled her position.
Kaiser Permanente to Pay $75,000 to Settle EEOC Disability Discrimination Suit
Kaiser Permanente, the largest managed care organization in the United States, will pay $75,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC),. According to the EEOC, a food service worker at Kaiser's San Diego facility has a medical condition, hydrocephalus, which causes difficulties with memory, dizziness and concentration. Upon hire, the worker requested additional training time and the assistance of a temporary job coach to effectively learn the job and perform the required job duties.
Suncup / Gregory Packaging Sued by EEOC for Disability Discrimination
Gregory Packaging, Inc., a nationwide manufacturer and distributor of juice products to school districts and medical institutions, violated federal law by firing an employee because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed. EEOC's complaint alleges that Gregory Packaging admitted it terminated the employee because of his impairment.
EEOC Lawsuit Challenges Flambeau Over Wellness Program
Flambeau, Inc., a Baraboo, Wis.-based plastics manufacturing company, is alleged to have violated federal law by requiring an employee to submit to medical testing and assessment in connection with a "wellness program" or face consequences. That violated the Americans with Disabilities Act the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed.
U.S. Department of Justice (DOJ)
Justice Department Reaches Agreement with Private Montessori Day School to Prevent Discrimination Against Children with Disabilities
The Justice Department announced that it has reached an agreement with Milwaukee Montessori School, a private day school in Wisconsin serving over 400 children from 18 months old through eighth grade, to remedy alleged violations of the Americans with Disabilities Act (ADA). The agreement resolves allegations by the Department that the school failed to reasonably modify its policies for, and then impermissibly disenrolled, a young child whose disability caused him to stumble and fall more frequently than his peers. The agreement is being filed as a consent decree along with a complaint in the U.S. District Court for the Eastern District of Wisconsin, and must be approved by the court. Under the consent decree, the school will adopt a disability nondiscrimination policy, including procedures for prompt handling of requests to reasonably modify school policies for children with disabilities; train teachers, administrators, and board members on ADA requirements and report to the Department on its compliance with the agreement; pay $50,000 in compensatory damages to the child identified in the complaint and his parents; and pay a civil penalty of $5,000 to the United States.
Great Lakes In Focus
Bullying of Students with Disabilities Addressed in Guidance to America's School
As part of National Bullying Prevention Awareness Month, the U.S. Education Department's Office for Civil Rights (OCR) today issued guidance to schools reminding them that bullying is wrong and must not be tolerated-including against America's 6.5 million students with disabilities.
The Department issued guidance in the form of a letter to educators detailing public schools' responsibilities under Section 504 of the Rehabilitation Act and Title II of Americans with Disabilities Act regarding the bullying of students with disabilities. If a student with a disability is being bullied, federal law requires schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring.
"While there is broad consensus that bullying cannot be tolerated, the sad reality is that bullying persists in our schools today, especially for students with disabilities," said Catherine E. Lhamon, Assistant Secretary for Civil Rights. "Basic decency and respect demand that our schools ensure that all their students learn in a safe environment. I look forward to continuing our work with schools to address and reduce incidents of bullying so that no student is limited in his or her ability to participate in and benefit from all that our educational programs have to offer."
Since 2009, OCR has received more than 2,000 complaints regarding the bullying of students with disabilities in the nation's public elementary and secondary schools. Today's guidance builds upon anti-bullying guidance the Department has issued in recent years concerning schools' legal obligations to fix the problem, including:
- A 2013 dear colleague letter and enclosure by the Office of Special Education and Rehabilitative Services (OSERS) clarifying that when bullying of a student with a disability results in the student not receiving meaningful educational benefit under IDEA, the school must remedy the problem, regardless of whether the bullying was based on the student's disability.
- A 2010 dear colleague letter by the OCR, which elaborated on potential violations when bullying and harassment is based on race, color, national origin, sex, or disability.
- A 2000 dear colleague letter by the OCR and OSERS, which explained that bullying based on disability may violate civil rights laws enforced by OCR as well as interfere with a student's receipt of special education under the Individuals with Disabilities Education Act (IDEA).
- A fact sheet for parents on schools' obligations under federal law to address bullying. The fact sheet is also available in Spanish.
- Visiting the federal Web site, www.stopbullying.gov, which provides useful information on bullying prevention and remedies.
- Asking to meet with the student's team that designs his or her individualized education program-the IEP or Section 504 teams.
- Asking to meet with the principal or school district's special education coordinators to have the school address bullying concerns.
- Seeking help from OCR. The office investigates complaints of disability discrimination at schools. To learn more about federal civil rights laws or how to file a complaint, contact OCR at 800-421-3481 (TDD: 800-877-8339), or ocr@ed.gov. OCR's Web site is www.ed.gov/ocr. To fill out a complaint form online, go to the Online form.
The Docket
REDBOX AND LIGHTHOUSE FOR THE BLIND: Disability Rights Advocates (DRA) ANNOUNCES SETTLEMENT AGREEMENT
San Francisco-based Lighthouse for the Blind and Visually-Impaired, Disability Rights Advocates, and the Law Offices of Jay Koslofsky entered into a settlement agreement with Redbox Automated Retail, LLC ("Redbox") that is expected to significantly improve access for blind individuals to Redbox's® self-service, touchscreen video-rental kiosks in California. Redbox has agreed to modify all its interactive, touchscreen video-rental kiosks in California by adding nonvisual accessibility features
Redbox offers the nation's most popular video-rental service for DVDs, Blu-ray® discs, and video games and operates thousands of video rental kiosks in California. Redbox kiosks provide a very affordable and flexible entertainment option to thousands of Californians daily, and the company's commitment will ensure that blind customers receive the same streamlined access to its services that other customers enjoy
Key provisions of the settlement include:
- Within 24 months of the court's approval of the settlement agreement, Redbox will develop and install nonvisual user interfaces consisting of standard headphone jacks, tactile keypads, and text-to-speech output on all Redbox video-rental kiosks in California. The nonvisual user interfaces will enable blind customers to independently browse, select, pay for, pickup, and return media from Redbox kiosks.
- Until Redbox completes installation of the nonvisual user interfaces, the company will continue to provide blind customers with a customer service phone line whereby customer service agents will assist blind customers with using kiosks by remotely operating kiosks.
- Redbox will make accessibility improvements to its website, redbox.com, to ensure that blind customers using screen-reading technology can browse available movies and kiosk locations, reserve movies for pick-up and register their email addresses on Redbox.com independently.
The settlement creates a $1.2 million class damages fund to compensate eligible settlement class members who submit valid claims before November 12, 2014. This settlement is the product of nearly two years of extensive and collaborative negotiations between the San Francisco-based Lighthouse for the Blind and Visually-Impaired, several blind individuals, and Redbox. The plaintiffs are represented by Disability Rights Advocates and the Law Offices of Jay Koslofsky.
Bryan Bashin, the Chief Executive Officer of the Lighthouse for the Blind and Visually-Impaired, commented, "Lighthouse applauds Redbox for demonstrating that companies doing business with sighted and blind Californians using kiosks and the Internet can do so while providing full access to both. Ensuring that blind people continue to have independent access to the marketplace-as new vending technologies emerge-is essential to full community integration of this or any other community."
Michael Nunez, a Staff Attorney at Disability Rights Advocates representing plaintiffs, stated, "This agreement advances the goal of the Americans With Disabilities Act to integrate people with disabilities into mainstream society, so it is fitting that the agreement was finalized in connection with the twenty-fourth anniversary of the Americans With Disabilities Act. We hope that this agreement will lead to continued expansion of access opportunities for customers including people with disabilities as businesses increasingly connect with the public through modern technologies."
From the ADA Expert
Question:Would an orchestra camp for elementary and middle school youth sponsored by the community orchestra (non-profit) and with the camp space being provided by the public school be responsible under the ADA for providing a sign language interpreter?
Answer:The first question to ask is if and how the ADA applies to this situation. The public school is covered by Title II of the ADA. If the school is only providing space for the camp and if the school is not a partner or co-sponsor then it is not a program of the public school and there are no obligations for the school to provide effective communication.
Next it needs to be determined if the community orchestra is a Title III entity. Title III of the ADA applies to both for profit and non-profit entities as an entities tax status does not determine an entities coverage under the ADA. It would appear that the camp would be covered by Title III.
Title III of the ADA requires that places of public accommodation provide the same level of access to information to individuals with disabilities that are provided to individuals with out disabilities. Title III entities must furnish auxiliary aids and services in order to achieve effective communication unless doing so would result in an undue burden or a fundamental alteration in the goods or services being provided. This is perhaps where an entities tax status may come into play as some non-profits may not have the same resources as for profit businesses. That is not to say that all non-profits don't have the resources to provide a qualified interpreter. A non-profit organization should not only look at the fees charged for the single event but the entire resources it has at its disposal. If the provision of an auxiliary aid or service would result in an undue financial burden the covered entity must look at other means to provide effective communication that would not result in an undue burden.
The ADA does not state that in every instance a sign language interpreter is requested that one must be provided. The bottom line is that a covered entity must provide effective communication with individuals with disabilities. First consideration should be given to the requested auxiliary aid or service however, if effective communication can be achieved through other means then the covered entity would be meeting its obligations under the ADA. In many instances due to the complexity of the information being provided and the duration of the delivery of the oral information a sign language interpreter is likely the only way to achieve effective communication.
For additional information please contact the Great Lakes ADA Center at (800) 949-4232 (V/TTY) or by completing the online form: http://adagreatlakes.com/WebForms/ContactUs/>
