Trainings & Events

U.S. Access Board

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Dr. Sachin Dev Pavithran Named Executive Director of the U.S. Access Board

The U.S. Access Board has named Dr. Sachin Dev Pavithran as its new Executive Director. Dr. Pavithran, a member of the Board for eight years, succeeds David M. Capozzi, who retired in June. “I am both excited and humbled to lead an agency that has done so much to make our world a more welcoming and inclusive place for everyone,” Dr. Pavithran stated. “I look forward to helping the agency build upon its notable accomplishments so that it can continue to provide leadership in accessibility both in the U.S. and across the globe.”

Access Board Initiates Update of Accessibility Guidelines for Rail Cars

The Access Board is initiating rulemaking to update its accessibility guidelines for rail cars covered by the Americans with Disabilities Act (ADA) and seeks public comment on this effort. As indicated in an Advance Notice of Proposed Rulemaking it published, the Board plans to update provisions in the ADA Accessibility Guidelines for Transportation Vehicles that apply to vehicles used in fixed guideway systems, including rapid, light, commuter, and intercity rail. The Board requests information from the public for its use in developing a proposed rule.

U.S. Access Board Launches New Website

The U.S. Access Board has redesigned and updated its website at www.access-board.gov. The new site features a streamlined design to make information easier to find. New menus and cross links enhance navigation of key resources, including the ADA Accessibility Standards and the Section 508

Access Board Resolves 55 Architectural Barriers Act Cases Through Corrective Action in FY 2020

The Access Board was created in part to enforce the first federal law to address accessibility, the Architectural Barriers Act of 1968 (ABA). 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.

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U.S. Equal Employment Opportunity Commission (EEOC)

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EEOC Sues Scottsdale Healthcare Hospitals / Honorhealth for Disability Discrimination

Medical Provider Failed to Provide Reasonable Accommodations to Employees, Federal Agency Charges

PML Services to Pay $60,000 to Settle EEOC Disability Discrimination Suit

The company that operates the IHG Army Hotel at Fort McCoy in Wisconsin will pay $60,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced.

Oceanic Time Warner Cable, Charter Communications, Inc. to Settle EEOC Disability Lawsuit

Cable Companies Denied Employees with Disabilities Reasonable Accommodations Federal Agency Charged.

EEOC Sues Jordan Carriers for Disability Discrimination

Federal Agency Charges That Flatbed Transportation Company Refused to Hire Applicant Because of Previous Back Injury.

EEOC Issues Final Rule Revising Procedural Regulations Under Title VII, ADA, and GINA

Rules Amend Regulations to Provide for Digital Transmission of Documents and Clarifies Language in Letters of Determinations.

Conduent to Pay $77,500 to Settle EEOC Disability Discrimination Lawsuit

Company Failed to Hire Qualified Deaf Applicant, Federal Agency Charged

Lockheed Martin to Pay $115,000 to Settle EEOC Disability / Retaliation Discrimination Lawsuit

Aerospace Giant Refused to Reasonably Accommodate Employee with Disability, Federal Agency Charged

Northwest Wireless to Pay $175,000 to Settle EEOC Disability Discrimination Lawsuit

Northwest Wireless Enterprises, LLC, an exclusive T-Mobile retailer, will pay $175,000 to a former employee to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).

EEOC Sues Outokumpu Stainless USA for Disability Discrimination

Outokumpu Stainless USA, LLC, a stainless steel manufacturer headquartered near Mobile, Ala., which employs more than 900 persons at its Calvert, Ala., facility, violated federal law by refusing to hire an applicant because of his use of medication prescribed by his doctor for anxiety and panic attacks, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit. 

EEOC Sues Trimark Foodcraft for Disability Discrimination

Commercial Kitchen Supplier Denied Reasonable Accommodation to Employee With Disability and Then Fired Her, Federal Agency Charges.

EEOC Sues Lonza America / Arch Chemicals for Disability Discrimination

Lonza America, Inc., which formerly operated in Charleston, Tenn., as Arch Chemicals, Inc., a manufacturer of pool and spa sanitizers and related treatment products, violated federal law by conducting unlawful medical exams and then firing a recovering opioid addict, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.

Aspire Health Partners to Pay $115,000 to Settle EEOC Disability Discrimination Lawsuit

Behavioral Health Care Organization Failed to Hire Former Employee Due to Her Prior Workplace Injury, Federal Agency Charged.

Sacramento Car Dealership Sued by EEOC for Disability Discrimination

Used car dealers Victory Automotive Group, Inc. and Cappo Management XXIX, Inc. violated federal law the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit, when they fired a title clerk at Harrold Ford, one of their Sacramento dealerships shortly after learning she was undergoing testing for cancer.

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U.S. Department of Housing and Urban Development (HUD)

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HUD Charges Milwaukee Property Owners and Manager with Discriminating Against Prospective Tenant with Disabilities

The U.S. Department of Housing and Urban Development (HUD) it has charged Vandelay Group, LLC, Vandelay Oakland, LLC, Sigma Commercial, LLC, and Jeffrey Koenig, the owners and manager of apartment units in Milwaukee, Wisconsin, with discrimination for allegedly refusing to rent a unit to an applicant with disabilities and their partner because the applicant requires an assistance animal.

HUD Charges Atlanta Housing Providers With Discriminating Against a Mother and her child with Disabilities

The U.S. Department of Housing and Urban Development today announced that it has charged the owners of an Atlanta, Georgia, apartment complex and its property manager with discrimination for allegedly refusing to grant the reasonable accommodation request of a resident whose son has severe asthma. 

HUD CHARGES NEW JERSEY CONDOMINIUM ASSOCIATION WITH DISCRIMINATING AGAINST RESIDENT WITH DISABILITIES

The U.S. Department of Housing and Urban Development announced that it has charged Le Club II Condominium Association in Mount Laurel, New Jersey, with housing discrimination after its management company, Dan-Mar Management, allegedly refused to allow a resident with disabilities to keep an assistance animal.

HUD charges New York property owner with discriminating against resident with disabilities

The U.S. Department of Housing and Urban Development announced that it is charging the owner of an apartment building in Buffalo, New York, with housing discrimination for allegedly refusing to allow a resident with disabilities to keep an assistance animal. 

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U.S. Department of Justice (DOJ)

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Settlement Agreement Between the United States of America and the University of Southern California under the Americans with Disabilities Act

The Complainant, who uses a wheelchair due to his disability and requires an accessible room with a roll-in shower, alleged that he used the online reservation system to book a room at the Hotel (then known as the Radisson Hotel Los Angeles Midtown at USC or USC Radisson), anticipating that an accessible room would be available. He also alleged that when he arrived, he was unable to stay at the hotel because the hotel’s only wheelchair accessible room with a roll-in shower was occupied. 

Settlement Agreement Between the United States of America and Lawrence + Memorial Hospital, Inc. An affiliate of Yale New Haven Health Services Corporation

The complaint alleges that the Complainant, who is deaf and who uses American Sign Language (“ASL”) as her primary means of communication, was referred to the Hospital for an appointment.  The Complainant alleges that when she went to the Hospital for the appointment, there was no interpreter present despite the Hospital having provided the Complainant with an interpreter at a past appointment.

Settlement Agreement Between the United States of America and DRX Norwalk, P.C. d/b/a AFC Urgent Care Norwalk

The United States initiated its investigation of DRX Urgent Care after receiving a complaint alleging that DRX Urgent Care violated Title III of the ADA. The complaint alleges that DRX Urgent Care refused to provide a school physical for the complainant’s child on the basis of the child’s medical complexity due to his developmental disabilities.

Settlement Agreement Between the United States of America and SRPN Enterprises, Inc., ("SRPN"), d/b/a The UPS Store #1217 in Riverside, Connecticut.

The United States initiated its investigation upon the receipt of a complaint from an individual with a disability who alleged that the Riverside UPS Store required her to remove her service animal from the store as a condition of service.

Settlement agreement Between the United States of America and the Iowa City Community School District

The receipt of a complaint filed with the U.S. Department of Justice on behalf of several families, alleging that newly constructed playgrounds at several elementary schools are inaccessible to children with disabilities.

Settlement agreement Between the United States of America and the America and Lyft, Inc. (“Lyft”)

Lyft Inc. refusing to provide service to individuals with disabilities who can use taxi vehicles, refusing to assist with the stowing of mobility devices, and charging higher fares or fees for carrying individuals with disabilities and their equipment than are charged to other persons.

Settlement agreement between the United States of America and the state of Rhode Island Board of Elections

The United States initiated the investigation upon receipt of a complaint that alleged that the newly leased and renovated facility at 2000 Plainfield Pike, Cranston, was not accessible to individuals with disabilities. The Board of Elections is the public entity responsible for administrating various aspects of the elections process within the state of Rhode Island.

Settlement agreement between the United States of America and Midwest Plastic Surgery under the Americans with Disabilities Act

This matter was initiated by a prospective patient, who filed a complaint with the United States Department of Justice, alleging that Midwest Plastic Surgery discriminated against her on the basis of her disability in violation of Title III of the Americans with Disabilities Act (“ADA”) . Specifically, the Complainant alleges that a plastic surgeon at Midwest Plastic Surgery declined to operate on her to perform a breast reduction surgery based on her disability because she has HIV.

Faustino Xavier Betancourt-Colon, et al., plaintiffs, v. City of San Juan, a public entity also known as the Municipality of San Juan, Defendants.

Plaintiffs, four individuals with mobility disabilities, allege that the Municipality of San Juan (“Municipality” or “San Juan”) violates Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act, (“ADA”), by failing to install and maintain curb ramps necessary to ensure its sidewalks are accessible to individuals with mobility disabilities.

Statement by Assistant Attorney General Eric Dreiband on World AIDS Day

On December 1, as our country joins in observing World AIDS Day, the Justice Department stands with all people living with Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS). Since the passage of the Americans with Disabilities Act (ADA) 30 years ago, the department has worked zealously, through enforcement, outreach, and technical assistance, to protect and advance the rights of people living with HIV and AIDS. 

Settlement Agreement Between the United States of America and National Railroad Passenger Corporation (“Amtrak”)

The United States alleges Amtrak violated Title II of the ADA by failing to make the existing stations for which it is responsible in its intercity rail transportation system readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, per the U.S. Department of Transportation Standards for Accessible Transportation Facilities (“DOT Standards”), 49 C.F.R. §§ 37.9 and 37.43, and 49 C.F.R. Part 37, Appendix A.  

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U.S. Department of Transportation (DOT)

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U.S. Department of Transportation Announces Final Rule on Traveling by Air with Service Animals

The U.S. Department of Transportation (Department or DOT) is issuing a final rule to amend the Department’s Air Carrier Access Act (ACAA) regulation on the transport of service animals by air. This final rule is intended to ensure that our air transportation system is safe for the traveling public and accessible to individuals with disabilities.

The Docket

Labor Law: Job reassignment remains the accommodation of last resort under the ADA, court rules

By KAREN MICHAEL

The 4th U.S. Circuit Court of Appeals last month issued a precedent-setting decision in favor of an employer in a case alleging violation of the Americans with Disabilities Act and reassignment as a reasonable accommodation.

The ruling from the Richmond-based appeals court is a must-read for employers seeking a road map on how to comply with the ADA.

Under the ADA, a qualified disabled employee must be provided reasonable accommodations to perform the essential functions of the position unless doing so would create an undue hardship.

In the case against the home improvement retailer Lowe's, a former company director sued the chain alleging that it failed to provide reasonable accommodations to him following knee surgery. He also alleged a violation of the Age Discrimination in Employment Act, which was also dismissed.

North Carolina-based Lowe's prevailed because it relied upon existing and consistently applied policies by engaging the employee throughout the process, being flexible and open-minded, providing interim accommodations and then following its own best practices for hiring in denying him a reassignment.

The major takeaways from the case include: determining an essential job function job; establishing reasonable accommodations; determining whether the employee is automatically entitled to a reassignment to a vacant open position as a reasonable accommodation; and having good leadership.

Essential functions: Determining essential job functions is important because the employer does not have to remove an essential job function as an accommodation.

The appeals court stated it is the company's business judgment that determines the employee's essential job functions. While job descriptions are relevant to this question, the court also relied upon testimony of senior officials and those familiar with the daily requirements of the job.

The court concluded that standing or walking in excess of four hours a day, traveling to supervised stores and working in excess of eight hours each day were essential job functions of the director-level position.

Immediately following his surgery, Lowe's provided temporary accommodations to include reducing the employee's hours to 40 weekly as well as providing him another employee to drive him to various stores. In addition, it offered him a scooter that he flat-out rejected.

Reasonable accommodations: When the restrictions became permanent, the court analyzed whether Lowe's provided reasonable accommodations that enabled the employee to perform the essential job functions.

The ADA defines "reasonable accommodation" as one that "may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies ... and other similar accommodations."

The employee argued that Lowe's was required to make permanent the arrangement to have another employee drive him to his stores. The court correctly stated the ADA does not mandate accommodations that require other employees to work harder or longer.

"In the end, Lowe's made reasonable, sensitive attempts to accommodate an indisputably valued employee in his present position," the appeals court wrote. "And yet, between the fixity of [the employee's] mobility-related restrictions and his refusal to accept the motorized scooter accommodation, Lowe's determination that he could no longer remain in the highly demanding [director] position was reasonable."

Reassignment: Once it was determined the employee could not be accommodated in his current job, he sought a transfer to one of two vacant director-level positions as a reasonable accommodation.

On this issue, the court noted, "Claims for reassignment under the ADA" amount to a "last resort."In prior cases in other circuit courts, reassignment had become akin to the disabled employee receiving a preference in hiring above more qualified candidates as an accommodation.

The appeals court flatly rejected this approach, including "preferential accommodations."

"Reassignment is unique in its potential to disrupt the settled expectations of other employees, so much so that no employer is required to reassign where reassignment would 'bump' another employee from his position, or block reasonable, long-time workplace expectations," the court said.

Credit to Lowe's leadership: The biggest takeaway for employers should be the tireless efforts by Lowe's to create opportunities for this employee.

The court acknowledged how Lowe's senior leadership directly assisted the employee with job transition, recognizing the senior-level employees whose time "was valuable to Lowe's but they rightly devoted a non-trivial portion of it to help [the employee] identify and approach new opportunities at the company."

This proactive approach provided the employee with equal opportunities, the court held, including offering him management positions which he rejected because of a reduction in compensation.

Question

Service Animal Final Rule FAQs

Q1: What are the most significant changes as far as the USDOT is concerned?

A: The Department’s service animal final rule makes a number of significant changes to its current Air Carrier Access Act service animal rule. This includes:

1. defining a service animal as a dog and no longer requiring airlines to accommodate miniature horses, cats, rabbits, birds and all other service animals that airlines are currently required to transport;

2. permitting airlines to treat emotional support animals as a pet and not requiring airlines to recognize emotional support animals as service animals;

3. requiring airlines to treat psychiatric service animals the same as other service animals that are trained to do work or perform tasks to assist a qualified individual with a disability and no longer allowing airlines to impose additional requirements on individuals traveling with psychiatric service animals as a condition of transport; and

4. (4) allowing airlines to require service animal users to provide a form developed by DOT attesting to the dog’s health, behavior, and training to assist the airline in determining if the dog poses a direct threat to the health or safety of others but prohibiting other forms.

Q2: What are the reasons for emotional support animals not being considered a service animal?

A: The Department decided to exclude from the service animal definition all non-task-trained animals, such as emotional support animals, for various reasons.

First, this approach reduces confusion among airlines, passengers, airports, and other stakeholders by more closely aligning the Department’s definition of a service animal under the Air Carrier Access Act with DOJ’s definition of a service animal under the Americans with Disabilities Act. Also, task-trained service animals are generally provided enhanced training in how to behave in public, while emotional support animals may not have received this degree of training. The Department also found persuasive the information provided by airlines and other stakeholders indicating that emotional support animals, or animals being presented to the airline as emotional support animals, are responsible for a significant percentage of the incidents of animal misbehavior onboard aircraft. Finally, Department predicts that its exclusion of emotional support animals will result in an overall reduction in the number of uncrated animals onboard aircraft, thereby reducing the overall number of animal misbehavior incidents (and the overall number of potential allergic reactions) onboard aircraft.

Q3: Will travelers still be allowed to fly with small non-service pets (dogs or otherwise) that can fit in carriers under seats?

A: The Department’s final rule defines a service animal as a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. Although emotional support animals and other pets are not service animals, the rule does not prohibit their transport. An airline may choose to transport them as pets pursuant to its established policy.

Q4: What is the bar for “psychiatric service animal”? If not emotional support, does the person need to be diagnosed with a psychiatric condition?

A: The Department’s final rule recognizes dogs that are individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. Because psychiatric service animals are individually trained to do work or perform tasks for the benefit of an individual with a disability, they are subject to the same regulations as other service animals. Airlines would no longer be permitted to require psychiatric service animal users to provide a letter from a licensed mental health professional of the passenger’s need for the animal.

Q5: What documentation would a person need to provide to prove their emotional support animal meets the requirements to be considered a psychiatric service animal?

A: The Department’s final rule defines a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability. Because psychiatric service animals are individually trained to do work or perform tasks for the benefit of an individual with a disability, they are subject to the same regulations as other service animals. The Department does not classify emotional support animals as service animals because providing emotional support, comfort, or companionship does not constitute work or tasks. An airline may treat an emotional support animal as a pet.

With respect to documentation, airlines are permitted to require passengers traveling with service animals provide,

1. a DOT form attesting to the animal’s health, behavior, and training, and

2. a DOT form attesting that the animal can either not relieve itself or can relieve itself in a sanitary manner, if the animal will be on a flight that is 8 or more hours.

Q6: Is the DOT taking any action or will it take any action to enforce the prohibition of airlines banning certain breeds of service dogs? What type of enforcement is the DOT taking on that?

A: Airlines are permitted to deny transport to an animal, regardless of breed, if the animal poses a direct threat to the health or safety of others. However, as the Department’s service animal final rule makes clear, airlines are prohibited from refusing to transport a service animal based solely on breed, as distinct from an individualized assessment of the animal’s behavior and health. The Department’s Office of Aviation Consumer Protection investigates all disability- related complaints that it receives involving airline service, including complaints from passengers alleging that an airline refused to carry their service dog based on the animal’s breed, to determine the extent to which regulated entities are complying with the laws that DOT enforces and to track trends or spot areas of concern that may warrant further action. In enforcing the requirements of Federal law, the Department is committed to ensuring that our air transportation system is safe and accessible for everyone. As a matter of practice, the Department does not comment on any investigation that may be pending

Focus

Recent Trends in the Seventh Circuit

Over the past few months, the Seventh Circuit Court has been extremely active in issuing decisions regarding interpretations of labor and employment questions. Given the increase in recent decisions, employers should be aware of the trends and outcomes that may impact their businesses. Two of those cases dealt with disability discrimination under the Americans with Disabilities Act (ADA). In each case, the Seventh Circuit Court reinforced the guidelines it uses to make that determination.

In Tonyan v. Dunham's Athleisure Corporation, the Seventh Circuit Court reviewed whether an employee was properly terminated when she was unable to complete the essential functions of her job. The employee worked as a store manager and suffered an injury leaving her unable to lift more than two (2) pounds. As a store manager, she was required to perform various forms of physical labor, including unloading and shelving merchandise. She argued that her termination was a result of discrimination based on her disability. The employer demonstrated that the employee was unable to perform essential functions of her job. In response the employer presented the job description and supporting documentation showing that physical labor was a necessary part of the role of a store manager, and essential to Dunham's business model. The Seventh Circuit Court held in favor of the employer, citing that the employee could not complete the essential functions of her job. The Court also stated "[w]e usually do not 'second-guess' the employer's judgment in describing the essential requirements for the job."

This case highlights the importance of, accurate and thorough job descriptions. Having the documentation ready to demonstrate the job descriptions are accurate and the duties are necessary to perform the required remains an excellent defense when an issue of a disability accommodation is raised -. In determining whether an accommodation is required, the employer must identify what the essential functions of a job are usually using a dialogue process with the employee. Where the essential functions are well established, and the need for their performance documented, the Tonyan case reiterates the conclusion that Employers are not required to accommodate the inability of an employee to perform the essential functions of a job.

In Kurtzhals v. County of Dunn, the Seventh Circuit Court reviewed whether the county improperly placed an employee on temporary leave and targeted the employee resulting in employment discrimination. In Kurtzhals, a Sergeant engaged in a verbal altercation with a fellowofficer. This fight escalated when the Sergeant threatened physical violence against the other officer. The County placed the employee on paid administrative leave as a result of his altercation with the other employee, per its policy regarding violence in the workplace.

The County also required the Sergeant to undergo a fitness-for-duty evaluation prior to returning to work. The Sergeant alleged the County was discriminating against him by requiring the fitness-for-duty evaluation. The employee was convinced this action was taken only because of his PTSD; however, the County focused on the employee's inappropriate behavior and safety in the workplace when placing him on leave. The County required the fitness-for-duty because the Sergeant violated the violence in the workplace policy and the fitness-for-duty evaluation was consistent with the policy purpose and protocol.

The County had a preexisting policy requiring that any employee out on administrative leave must undergo a fitness-for-duty review prior to returning to work. Regardless of whether the employee felt targeted due to his PTSD the County was following its policy and applying it equally as it would with any other employee in a similar situation.

The Seventh Circuit Court held that the County's decisions were consistent with a business necessity and were not discriminatory.

In both cases, the Seventh Circuit Court reviewed disability discrimination allegations. In Tonyon, the employers' detailed job description and supporting documentation was lead to the favorable result. In Kurzhals, the well thought out policies and consistent practices in implementing those policies formed the employer's defense. In each case the documentation and policies were already in place prior to the incidents and each employer relied on the respective information in proving no discrimination occurred.

These cases highlight the need for employers to stay up-to-date on their documentation, including but not limited to: policies, handbooks, and job descriptions. The Seventh Circuit Court has shown it is likely to rely on the documentation presented by the employers and rule in their favor based on existing policies and job descriptions. These cases act as reminders that employers should review their own internal documentation, procedures and policies to ensure it is accurate, up-to-date and consistently applied. Having those bases covered continues to form the basis of a strong defense in discrimination cases.

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