The Access Board has issued a correction to its updated accessibility requirements for information and communication technology (ICT) to restore provisions on TTY access that were inadvertently omitted. The action applies to the final rule the Board published last January to jointly refresh its Rehabilitation Act (Section 508) standards for ICT in the federal sector and its Communications Act (Section 255) guidelines for telecommunications equipment.

ABM Aviation, Inc., formerly Air Serv Corporation, an aviation industry cleaning and services provider at Hartsfield-Jackson Atlanta International Airport in Atlanta, Ga., violated federal law when it denied an employee a reasonable accommodation and terminated her employment due to her disabilities the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. The EEOC further alleged that ABM discriminated against the employee when it suspended her for absences related to her disabilities.

Zachry Construction Corporation, a San Antonio-based construction and industrial contractor, violated federal law when it fired several employees whose post-offer medical questionnaires and subsequent medical examinations revealed they had disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. At the time of termination, all these employees were already performing their job duties in a satisfactory manner, the EEOC said.

InsideUp Inc., a San Diego-based marketing company, will pay $10,500 and provide other significant relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC's lawsuit, a marketing consultant with chronic obstructive pulmonary disease (COPD), emphysema and asthma requested a reasonable accommodation. The consultant requested to work on the ground floor of an office building without an elevator, so he would not have to walk up and down the stairs with his condition. InsideUp not only refused his request but thereafter fired him due to his disability.

Signature Industrial Services Sued By EEOC for Disability Discrimination

The Cheesecake Factory to Pay $15,000 To Settle EEOC Disability Discrimination Suit

EEOC Sues West Meade Place, LLP For Disability Discrimination

Kentucky Fried Chicken Franchise to Pay $30,000 To Settle EEOC Disability Discrimination Suit

Vantage Drilling Sued by EEOC For Disability Discrimination

EEOC Files Disability Discrimination Lawsuit Against Heritage Home Group

U.S. Department of Justice (DOJ)

Settlement Agreement between the United States and Monroe County, Illinois Regarding Polling Place Accessibility

JUSTICE DEPARTMENT REACHES AGREEMENT WITH DENVER TO IMPROVE ACCESSIBILITY

Monterey Airbus, Inc. Agrees To Ensure Full Accessibility Of Airport Shuttle Service

Justice Department Reaches Settlement with Atlantis Events, Inc., to Resolve ADA Violations

Great Lakes In Focus

National ADA Symposium

Rachel Mucha December 4, 2017

National ADA Symposium June 17-20, 2018 Pittsburgh, PA Wyndham Grand Hotel
Features
-Six Pre-Conference Sessions
-100 Breakout Sessions
-Five Advanced Workshops
-Three Lunches & Two Buffet Breakfasts
Venue/Fees
Wyndham Grand Pittsburgh Downtown
1 412-391-4600
Registration Fee: Early Rate: $750 Regular: $900

The Docket

Court Limits ADA's 'Regarded As' Protections to Current Disabilities

Manatt Phelps & Phillips LLP

The Americans with Disabilities Act's (ADA) "regarded as" protections do not extend to cases where an employee is presently healthy but has the potential to become disabled in the future, a Florida federal court ruled in rejecting a lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The agency filed suit on behalf of Kimberly Lowe, a massage therapist who asked for time off from her job at Massage Envy to visit her sister in Ghana. Although her request was initially approved, Lowe was fired three days before her trip after one of the company owners expressed concern that she would be infected with Ebola during her trip and infect co-workers and clients upon her return. The EEOC asserted that Lowe's termination constituted disability discrimination in violation of the ADA. But the court disagreed. The employer simply regarded Lowe as having the potential to become infected with Ebola in the future, the court said, which does not fall under the protections of the statute as would be the case for an employee who is currently contagious.

Kimberly Lowe began working as a massage therapist at Massage Envy on Jan. 13, 2012. In September 2014, she asked for time off to visit her sister in Ghana. The company's business manager approved her request. But three days prior to her trip, one of the owners fired Lowe. He expressed concern that she would be infected with Ebola if she traveled to Ghana and infect her co-workers and clients upon her return.
When she returned from Ghana, Lowe filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). After conciliation efforts failed, the agency filed suit in Florida federal court alleging the employer violated the Americans with Disabilities Act (ADA) by firing Lowe with claims under both "regarded as" disability and association discrimination.
The employer moved to dismiss both counts. U.S. District Judge Mary S. Scriven granted the motion, ruling that the statute does not protect an employee who may become disabled.
Under the "regarded as" prong of the ADA's definition of disability, an individual is regarded as having a disability when he or she is subjected to a prohibited action because of "an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." The EEOC argued that this language means employers can violate the ADA even when they discriminate against an otherwise healthy individual based on misconceptions about that person's potential to become disabled in the future.
But the court rejected this position, distinguishing cases that involved employees who were presently impaired. Those cases involved a teacher currently contagious with tuberculosis, a job applicant erroneously believed to have a back injury, and an employee who was terminated after traveling to Mexico because her employer feared she had contracted swine flu.
"The Court declines to expand the 'regarded as' disabled definition in the ADA to cover cases, such as this one, in which an employer perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct," the court wrote. "Accordingly, the EEOC has failed to state a claim for discrimination under the regarded as disabled definition of the ADA."
Turning to the association discrimination claim, Judge Scriven reached the same result. At the time of Lowe's termination, she had not yet associated with people in Ghana, and there was no evidence that Massage Envy knew that any individual in Ghana with whom Lowe would be meeting had Ebola.
"The plain language of the ADA makes clear that the relevant individual complainant must be 'known to have [present tense] a relationship' or association with a person known to have a disability in order for that relationship to serve as a basis for association discrimination," the court said. "Here, there is no question that [the employer] was without knowledge of a current association between Lowe and individuals in Ghana at the time of Lowe's termination, because any such association had not yet occurred. This fact is fatal to the EEOC's prima facie case."
Further, even if the plaintiff could bring an association discrimination claim for a potential future association with a disabled individual, the ADA clearly requires that such an individual have a "known disability," the court added.
"The ADA does not establish a cause of action for discrimination against an individual who associates with people who are merely regarded as disabled," Judge Scriven wrote. "Lowe expressly pleads in her charge that she was not planning to associate with any people who were known by [the owner] to have Ebola. Indeed, it is central to the EEOC's theme of the case, as articulated in its complaint and opposition to the Motion to Dismiss, that [Massage Envy's owner] was woefully ignorant in his beliefs and resulting bias that people in Ghana have Ebola. His behavior in terminating Lowe based on this nescience and Massage Envy's support of him in this behavior, although deplorable, are not actionable under the statute."
The court dismissed the suit and denied the EEOC's motion to file an amended complaint, finding the effort would be futile.
To read the order in EEOC v. STME, LLC, click here.

From the ADA Expert

Court dismisses ADA suit filed by fired employee taking opioids | Business Insurance

Judy Greenwald

Article
A federal district court has dismissed an Americans with Disabilities Act lawsuit filed by an employee who was terminated after his employer learned he was taking both prescription morphine and nonprescription opioids.
Robert Sloan worked for Tipp City, Ohio-based Repacorp Inc., which manufactures labels with the use of heavy machinery, from March 2007 to February 2014, according to the Feb. 27 ruling by the U.S. District Court in Dayton, Ohio, in Robert Sloan v. Repacorp., Inc.
He spent about 10%-20% of his time working with heavy machinery, which was indisputably very dangerous, according to the ruling.
Repacorp's employee handbook requires all employees to notify management if they are taking nonprescription or prescription medication, and Mr. Sloan understood that testing positive for these could result in his termination, according to the ruling.
In the year prior to his hiring, though, Mr. Sloan began taking morphine for neck and back pain, but did not tell his supervisors. He also admitted taking Vicodin, an opiate pain medication, on at least two occasions at work, according to the ruling.
After his company learned of his drug use, Mr. Sloan voluntarily submitted to a drug test and tested positive for hydrocodone, the opiate found in Vicodin. He was put on leave in February 2014 and terminated less than two weeks later.
Mr. Sloan filed suit on charges including disability discrimination and retaliation under the ADA. The court granted Repacorp summary judgment dismissing the case.
Mr. Sloan alleges he was disabled because of degenerative disc disease and arthritis in his neck and back and fired because of his disability, said the ruling.
The ruling said the company's president had asked Mr. Sloan to consult with his doctor to determine if there were any alterative medications or treatments for his pain that did not include opiates, but Mr. Sloan responded he needed to stay on his medication and would not stop taking it.
"It appears undisputed that Sloan failed to cooperate with (the president's) reasonable request for additional information concerning Sloan's alleged disability," said the ruling.
"While Sloan argues that Repacorp discriminated against him for terminating his employment without properly determining that he posted a 'direct threat' while under the influence of morphine...Sloan overlooks Repacorp's main point, i.e. that Sloan's employment ended not because Repacorp concluded he was a direct threat to himself or others, but because Sloan impeded its ability to investigate the extent of his disability and determine whether his disabling pain required use of prescription morphine, or whether a non-opiate medication could reasonably accommodate his disability," said the ruling.
"In other words, Sloan failed to cooperate and/or participate in the interactive process required of all employees requesting accommodations under the ADA," said the ruling, in granting the company summary judgment in the ADA discrimination claim. The retaliation claim was dismissed as well.


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