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News from the Federal Agencies

Administration on Community Living (ACL)

Administration on Community Living (ACL) Comment Period Open for Section 1557 Nondiscrimination Proposed Rule

The U.S. Department of Health and Human Services (HHS) has issued a proposed rule to revise regulations implementing and enforcing Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.

Members of the public are invited to submit comments on this proposed rule through August 13, 2019 online via regulations.gov. Comments can also be mailed to U.S. Department of Health and Human Services, Office for Civil Rights, Attention: Section 1557 NPRM, RIN 0945-AA11, Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue SW, Washington, DC 20201

Among the issues that the Notice of Proposed Rule Making seeks input on is, "whether HHS's Section 504 regulations at 45 CFR part 85 should be amended to address effective communication, accessibility standards for buildings of facilities, accessibility of electronic information technology, and the requirement to make reasonable modifications for otherwise qualified individuals with disabilities under any program or activity receiving Federal financial assistance from HHS."

ACL announces release of annual population summary report

The Profile of Older Americans is an annual summary of critical statistics related to the older population in the United States. Relying primarily on data offered by the U.S. Census Bureau, the Profile illustrates the shifting demographics of Americans age 65 and older. It includes key topic areas such as income, living arrangements, education, health, and caregiving. The 2018 Profile also incorporates a new special section on emergency and disaster preparedness.

New Business Acumen Toolkit Module

The HCBS Business Acumen Center has released the second module of their toolkit: “Disability Network Business Strategies: A Roadmap to Financial and Programmatic Sustainability for Community-Based Organizations.” This resource is a “how-to’ guide designed to help Community-Based Organizations (CBOs) evaluate, plan, develop and implement strategies to help build and sustain their organizations in various business climates.

U.S. Equal Employment Opportunity Commission (EEOC)

Illinois Action for Children to Pay $60,000 to Settle EEOC Disability Discrimination Lawsuit

Illinois Action for Children (IAFC), a large Illinois child care and childhood education-related nonprofit, has agreed to pay a former employee $60,000 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, IAFC violated federal anti-discrimination law when it fired an employee who was on leave receiving treatment for breast cancer rather than granting her request for additional leave for more treatment.

EEOC Sues M&M Limousine for Disability Discrimination

Des Plaines, Ill.-based M&M Limousine Service violated federal law when it refused to hire or consider potential accommodations for a qualified deaf job applicant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC's lawsuit, the applicant applied for the position of limousine driver, but M&M refused to hire him and failed to consider whether he could do the job, with or without reasonable accommodations. The EEOC said that M&M told the applicant that it could not hire him because he is deaf, despite the fact that he met the qualifications for the position.

EEOC Sues Bluelinx Corp / Lake States Lumber for Disability Discrimination

A company operating in Duluth, Minn., violated civil rights law when it fired an employee because of his perceived disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed in Minnesota. According to the EEOC's lawsuit, the employee worked for Lake States Lumber from August 2008 to February 2016. Lake States Lumber, based in Duluth, is owned by BlueLinx Corp., which is headquartered in Marietta, Ga. The employee, who has a heart condition, went on leave to have heart surgery. He was released by his doctors to return to work with no restrictions. However, when he returned to work, managers placed restrictions on his ability to work and assigned him to a different job. Nine days later, he was fired, the EEOC said.

Kroger to Pay $40,000 to Settle EEOC Disability Discrimination Lawsuit

Cincinnati-based national grocery store chain Kroger will pay $40,000 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, Kroger offered Michael Haugabrook a courtesy clerk position at its Jonesboro, Ga., store on or about March 15, 2016. Haugabrook accepted the position and was required to attend an orientation session on March 23. Due to his visual impairment, Haugabrook requested an accommodation to complete the computer-based portion of the orientation. Kroger's management refused to accommodate him. While Haugabrook was completing the computer assessment, he was summoned to the store manager's office where he was immediately fired, the EEOC said.

EEOC Sues Citizens Bank for Disability Bias

Citizens Bank, N.A. violated federal law by failing to reassign a long-term employee to one of several vacant positions after he became disabled and sought a reasonable accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to EEOC's complaint, Citizens Bank refused to provide a reasonable accommodation to a supervisor in the national banking company's Cranston, R.I., call center after he developed anxiety and requested reassignment to a position that did not require him to field customer phone calls.

MedStar Health / Medstar Ambulatory Services Agree to Conciliate EEOC Disability Bias Charge

The U.S. Equal Employment Opportunity Commission (EEOC), MedStar Health, Inc. and MedStar Ambulatory Services, Inc. announced the successful conciliation and settlement of a charge filed with the agency under the Americans with Disabilities Act (ADA). The EEOC reached a voluntary resolution with both employers through the agency's conciliation process following its investigation findings. Neither employer admitted to any wrongdoing or fault in violation of the statute.

EEOC Sues Valley Tool for Disability Discrimination and Retaliation

A tool company operating in Water Valley, Miss., violated federal civil rights laws when it denied an employee a reasonable accommodation for her disability, fired her and then punished her for complaining about it, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. The company also denied another employee wage increases in retaliation for the filing of a charge of discrimination.

EEOC Sues Rogers Behavioral Health for Disability Discrimination

An Oconomowoc, Wis., inpatient residential health facility violated federal law when it rescinded an applicant's job offer because she tested positive for a prescribed medication, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. Rogers Behavioral Health provides treatment for various conditions including addiction, anxiety, depression, mood disorders and general mental health.

Value Village to Pay $45,000 to Settle EEOC Disability Discrimination Lawsuit

Atlanta-based Georgia Retail Company and Georgia Thrift Stores, Inc., operating as Value Village retail stores, will pay $45,000 and provide other relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. The EEOC had charged that the company violated federal law when it denied an employee's requests for accommodation due to her disabling medical conditions and forced her to quit her job.

U.S. Department of Justice (DOJ)

Settlement Agreement between the United States and CJ Spa Group, Inc

C.J. Spa Group, Inc., a company that operates Spa Palace in the Westlake neighborhood in the city of Los Angeles, has entered into a settlement agreement with the Department of Justice to ensure that individuals with disabilities can access the spa’s facilities. The settlement agreement resolves a complaint under the Americans with Disabilities Act (ADA) that Spa Palace staff denied entry to a blind customer, telling him that “his kind” would not be able to follow instructions and that a massage therapist could not care for him. Spa Palace also maintained a policy requiring individuals with disabilities to be accompanied at all times by a personal attendant.

Settlement Agreement between the United States and Lincare Inc

Lincare, Inc., a durable medical equipment company which operates approximately 800 centers in 48 states, including 27 centers in Virginia, has agreed to settle an Americans with Disabilities Act (ADA) complaint that it failed to provide a sign language interpreter for an appointment with a patient who is deaf. Lincare, which is headquartered in Florida, is a supplier of oxygen, durable medical equipment and other respiratory care products and related services. The allegations involved a patient with sleep apnea, who lives in Fairfax County and is deaf. She requested that Lincare provide a sign language interpreter for an appointment at which she expected to rent a new Continuous Positive Airway Press (CPAP) device and learn about its operation, maintenance, payment options, and warranty. Lincare failed to provide the legally required auxiliary aids or services, and as a result has agreed to pay a total of $20,000 and take remedial action to resolve the complaint.

Settlement Agreement between the United States and Hazeldon Betty Ford Foundation

The Hazelden Betty Ford Foundation has entered into a settlement agreement with the United States in which it agrees to remove architectural barriers to access at the Betty Ford Center, a well-known drug and alcohol treatment facility it owns and operates in Rancho Mirage. The settlement agreementresolves allegations that the Betty Ford Center violated the Americans with Disabilities Act (ADA), which prohibits discrimination by places of public accommodation against individuals with disabilities. Hazelden, a Center City, Minnesota-based addiction treatment and advocacy organization, fully cooperated with the government’s investigation.

Justice Department Reaches Settlement Agreement with York County, South Carolina, to End Hiring Practices that Discriminate Against Applicants with Disabilities

The Justice Department announced that it reached a settlement agreement with York County, South Carolina under the Americans with Disabilities Act (ADA). The agreement resolves the Department’s lawsuit alleging that the county discriminated against an applicant on the basis of his disability, dwarfism, when he sought to apply for a Purchasing Manager position. The complaint alleges that York County required applicants for the Purchasing Manager position to possess a driver’s license even though having a driver’s license is not essential to performing the job functions of the position. By requiring a driver’s license, the county unfairly screened out the applicant, who because of his disability does not possess a driver’s license, but who was otherwise qualified for the position.

U.S. Department of Labor (DOL)

Department of Labor announces 2019 National Disability Employment Awareness Month theme

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 will be available soon.

The Docket

Case of the Big Bus Driver: Seventh Circuit Joins Other Circuits in Rejecting Obesity, without Other Physiological Condition, as ADA Impairment

Obesity has been recognized as a disease by the American Medical Association, National Institutes of Health, and the World Health Organization. Does that mean obesity qualifies as a physical impairment under the Americans with Disabilities Act (ADA)? Stated differently, may an individual claim that he is disabled under the ADA, based solely on the fact he or she is obese? According to the circuit courts that have addressed the issue, the answer is clearly no.

In Richardson v. Chicago Transit Authority

the Seventh Circuit joined the Second, Sixth and Eighth Circuits (and the majority of district courts) as the latest court to hold that obesity alone is not a physical impairment as contemplated by the ADA. Relying on the plain language of the EEOC regulation implementing the ADA, the Seventh Circuit found that obesity may be a physical impairment as contemplated by the ADA only if it is the result of an underlying physiological disorder or condition.

Question

Who decides what job functions are “essential?”

Staying awake is essential to monitoring job, 5th Cir. Says

HR Dive

Dive Brief:
A cable TV/internet technician with narcolepsy failed to persuade an appeals court that staying awake was not an essential function of her job (Clark v. Charter Communications, LLC , No. 18-11492 (5th Cir. June 19, 2019)).

Danielle Clark's job was to monitor computer displays tracking the network's status and to immediately dispatch a technician in the event of an outage. Clark had trouble staying awake during her shifts due to her narcolepsy. Her employer tried to accommodate her by providing additional time off and extra breaks, but co-workers began to make negative comments and request her termination. Clark sued, alleging disability discrimination and harassment, failure to provide reasonable accommodations, failure to engage in the interactive process, and retaliation in violation of the Americans with Disabilities Act (ADA) and Texas law.

A federal district court granted the employer's motion for summary judgment, concluding that Clark had failed to establish that she was "otherwise qualified for the position and duties of a specialist." On appeal, the 5th Circuit affirmed.

Dive Insight:
"Essential functions are the basic job duties that an employee must be able to perform," according to the U.S. Equal Employment Opportunity Commission (EEOC). An employee who cannot perform the essential functions of a job, either with or without a reasonable accommodation, is not qualified for the job and cannot invoke the protections offered by the ADA.

"Essential functions" can vary depending on the job. Sometimes basic elements of a job qualify as essential functions. In one instance, for example, a court ruled that regular attendance for supervisors can be considered an essential function.

Because courts often give deference to employers when deciding what constitutes an essential job function, a written, up-to-date job descriptions that spell out what is essential and what is marginal is key, according to the EEOC document, The ADA: Your Responsibilities as an Employer.

A written job description signed by the employee is important, as are regular reviews of job descriptions.

Many experts recommend tying the updates to annual performance reviews and having employees sign off on them at that time.

Focus

29th ADA Anniversary Statistics You Can Use

On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in employment, transportation, public accommodations, commercial facilities, telecommunications, and state and local government services.

This Facts for Features provides a demographic snapshot of the U.S. population with a disability and examines various services available to them. The statistics come from various U.S. Census Bureau censuses and surveys, covering different periods of time.

The following facts are made possible by the invaluable responses to the Census Bureau’s surveys. We appreciate the public’s cooperation as we continuously measure America’s people, places and economy.

Did You Know?

20.2%
The percentage of the civilian noninstitutionalized population in West Virginia in 2017 with a disability — among the highest rates in the nation. Utah, at 9.6 percent, had the lowest rate. Source: 2017 American Community Survey

7.6 million
Total civilian noninstitutionalized population ages 18 to 64 employed with a disability. Source: 2017 American Community Survey

$23,006
Median earnings in the past 12 months (in 2017 inflation adjusted dollars) of the civilian noninstitutionalized population age 16 and over with earnings and a disability. Source: 2017 American Community Survey

More on Disability

• Employment Status by Disability Status and Type
• Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status

More Stats

See a detailed profile on the population with a disability from the 2017 American Community Survey. Statistics include:

• Sex
• Race
• Age
• Hearing difficulty by age
• Vision difficulty by age
• Cognitive difficulty by age
• Ambulatory difficulty by age
• Self-care difficulty by age
• Independent living difficulty by age