Trainings & Events Calendar
Thursday, December 2, 2021
Thursday, December 9, 2021
Tuesday, December 14, 2021
Thursday, January 6, 2022
Wednesday, January 12, 2022
Tuesday, January 18, 2022
Wednesday, January 19, 2022
Tuesday, January 25, 2022
News from the Federal Agencies
U.S. Access Board
The U.S. Access Board has released technical bulletins on accessibility to lavatories and sinks, washing machines and clothes dryers, and saunas and steam rooms. This material addresses specifications for clear floor space, knee and toe space, forward and side reach, operable parts, height, turning space, benches, and doors in the ADA and ABA Accessibility Standards. Each bulletin clarifies common sources of confusion, answers frequently asked questions, and offers recommendations for best practice.
U.S. Access Board Commends Smithsonian National Museum of Natural History for New Accessible Routes
On December 15, 2021, the Smithsonian National Museum of Natural History held a ribbon-cutting ceremony to celebrate the installation of new sloped walkways for accessible entry on the National Mall side of the 111-year-old building. On behalf of the U.S. Access Board, Training Coordinator Bill Botten attended the ceremony and recognized the importance of providing compliant and accessible routes and entrances, stating “the Access Board commends the museum for this accessible design and ongoing commitment to removing barriers.
U.S. Access Board Resolves 38 Architectural Barriers Act Cases Through Corrective Action in FY 2021
The U.S. Access Board investigated 38 cases under the Architectural Barriers Act (ABA) of 1968 that were resolved through corrective action in FY 2021. The ABA requires access to buildings or facilities that were designed, built, or altered with federal dollars or leased by federal agencies. The Board enforces the ABA through investigating complaints from the public.
U.S. Equal Employment Opportunity Commission (EEOC)
EEOC Adds New Section Clarifying When COVID-19 May Be a Disability, Updating Technical Assistance
The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance adding a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
EEOC Sues Ranew’s Management Company for Disability Discrimination
Ranew’s Management Company, Inc., terminated an employee because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed. According to the EEOC’s suit, a Ranew’s Company employee informed his employer of his diagnosis of severe depression and requested to take three weeks off work, per his doctor’s recommendation. Ranew’s Company CEO told the employee to take as much time as he needed to get well. However, six weeks later, when the employee tried to return to work, presenting a release to return to work from his doctor, the CEO said he couldn’t trust the employee to perform his job duties and terminated his employment effective immediately.
VHS West Suburban Medical Center to Pay $150,000 to Settle EEOC Disability Discrimination Lawsuit
The former owner of West Suburban Medical Center, an Oak Park, Illinois hospital will pay $150,000 to settle a disability discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s lawsuit, West Suburban Medical Center violated federal civil rights laws by failing to provide a radiology technician the reasonable accommodation of a temporary, part-time schedule in January 2016, keeping her on unpaid leave instead. The suit also alleged that even after she no longer
Willis-Knighton Medical Center to Pay $450,000 to Settle EEOC Disability Discrimination Lawsuit
Willis-Knighton Medical Center, a health services provider, has agreed to pay $450,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s lawsuit, Willis-Knighton Medical Center required employees who exceeded a fixed leave-and-light-duty cap to be fully fit for duty (that is, have no restrictions), regardless of whether those employees could perform the essential functions of their jobs with or without reasonable accommodations.
Employer Solutions Group, LLC (ESG), a payroll services company operating in Eden Prairie, Minnesota, has agreed to pay $95,000 to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. The EEOC’s lawsuit charged that ESG fired an employee because she notified the company that she needed to use crutches following a surgery related to a knee injury. When the employee attempted to return to work following an approved medical leave, ESG asserted that she needed to be 100% healed before returning to work and cited her need for an “ambulatory aide” when firing her, according to the lawsuit.
Kaiser Foundation Health Plan of Georgia to Pay $130,000 to Settle EEOC Disability Suit
Kaiser Foundation Health Plan of Georgia, Inc., a managed health care provider that is part of the Oakland, California-based Kaiser Permanente organization, agreed to settle a lawsuit after it was found liable for violating the Americans with Disabilities Act (ADA), the U.S. Equal Employment Opportunity Commission announced. After the court ruled against Kaiser, Kaiser agreed to pay its former employee $130,000 and enter into a consent decree under which it will train its employees on the ADA, make changes to its employment forms, and allow the EEOC to monitor how it handles future requests for accommodation under the ADA.
Trimark Foodcraft Agrees to Pay $25,000 to Settle EEOC Disability Discrimination Lawsuit
Strategic Equipment, LLC, doing business as TriMark Foodcraft, has agreed to pay $25,000 and provide other 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 complaint, Jean S. Perry is an individual with a disability who worked for Trimark through a temporary placement agency as an accounts payable costing clerk. In December 2018, Perry was admitted to the hospital for breathing complications related to her disability. Perry attempted to return to work, but when she notified Trimark that she required the use of a personal oxygen device and would need to bring it to work with her, Trimark fired her.
U.S. Department of Justice (DOJ)
United States Settles with Private School to Resolve Allegations of Disability Discrimination
The United States has reached a settlement with Sayre School (Sayre), a Lexington, KY based private school, resolving allegations of disability discrimination. The settlement agreement resolves a compliance review, initiated in 2016 by the United States, under the Americans with Disabilities Act (ADA), after receiving a complaint about physical access barriers for individuals with mobility disabilities, at Sayre's Lower School. Sayre is a private, nonsectarian school in Lexington that serves more than 600 students. Following an on-site architectural assessment of Sayre's campus, the United States concluded that numerous buildings on Sayre's campus contained physical barriers to access in violation of the ADA.
Settlement Agreement Between the Justice Department and Tweetie Nail
This matter was initiated by a Diva Nails customer, who filed a complaint with the United States Department of Justice, alleging that Diva Nails discriminated against him on the basis of his disability in violation of Title III of the Americans with Disabilities Act ("ADA"). Specifically, the Complainant alleged that the owner of Diva Nails informed him that he could not return to Diva Nails for future services after another customer (known to Complainant) disclosed that Complainant had tested positive for the human immunodeficiency virus ("HIV-positive").
Justice Department Settles with Vermont Department of Corrections
The Justice Department reached an agreement under Title II of the Americans with Disabilities Act (ADA) with the Vermont Department of Corrections (VDOC) to resolve complaints that VDOC does not provide accessible facilities for inmates with mobility disabilities, and does not ensure effective communication for inmates with hearing disabilities. The settlement agreement requires VDOC to make structural changes to prison facilities, implement hearing screening assessments and develop individualized communication plans to provide auxiliary aids and services for individuals with hearing disabilities, train staff, and to pay $80,00 in damages to aggrieved individuals.
The Department of Justice announced an agreement with Rite Aid Corporation. The agreement will help ensure that individuals with disabilities who use screen readers and those who have difficulty using a mouse can privately and independently book their potentially life-saving vaccination appointments online. The agreement requires Rite Aid to make its COVID-19 vaccine content conform to the Web Content Accessibility Guidelines Version 2.1. This is the Department’s first ADA agreement to require conformance to this version.
Justice Department Agreement Ends Unnecessary Medical Exams and Inquiries by Employer
The Justice Department filed an agreement with the Federal Court in New Jersey, to resolve its lawsuit against the Port Authority Trans-Hudson Corporation (PATH), under the ADA and the Genetic Information Nondiscrimination Act (GINA). The agreement ends PATH’s practice of asking for unnecessary medical and disability information from its workers, and documents PATH’s commitment to strengthening ADA and GINA protections for its workers. Under the terms of the agreement, which must be approved by the Court, PATH has agreed to stop unnecessary medical exams, train its staff on the ADA and GINA, and pay a total of $100,000 to certain employees who were harmed by PATH’s exams and inquiries.
Justice Department Sues Uber for Overcharging People With Disabilities
The Justice Department has filed an ADA lawsuit against Uber for charging “wait time” fees to passengers who, because of disability, take longer than two minutes to get in their Uber car. Individuals who believe they have been victims of disability discrimination by Uber because they, or someone they were traveling with, were charged wait time fees should contact the Justice Department at 833-591-0425 (toll-free), 202-305-6786, or send an email to Uber.Fee@usdoj.gov.
ADA Settlement with Stamford YMCA Ensures Access to Programs for Children with Autism
Leonard C Boyle, Acting United States Attorney for the District of Connecticut, announced that Stamford YMCA (“Stamford YMCA”) of Stamford, Connecticut, has entered into a settlement agreement with the government to resolve allegations that Stamford YMCA’s childcare programs and other services were not accessible to a child with Autism Spectrum Disorder in violation of the Americans with Disabilities Act of 1990 (“ADA”).
The matter was initiated by a complaint filed with the U.S. Attorney’s Office for the District of Connecticut by Connecticut’s Center for Children’s Advocacy (CCA) alleging violations of Title III of the ADA. Specifically, the complaint alleges that Stamford YMCA failed to adequately assist a child diagnosed with Autism Spectrum Disorder who requires reasonable modifications for effective communication in order to fully participate in the program.
U.S. Attorney’s Office Settles ADA Service Animal Dispute
Midwest Petroleum & Convenience, Inc. (Midwest Petroleum), doing business as 7Star Liquor and Tobacco Outlet, a Cedar Rapids, Iowa, convenience store, has agreed to settle a dispute under the Americans with Disabilities Act (ADA) regarding an allegation that it refused service to an individual with disabilities because of her service animal.
The Justice Department has sued Barnet Dulaney Perkins Eye Center, PC (BDP), for violating the ADA by refusing to transfer certain patients with disabilities onto surgical and exam tables. Instead, they require patients to hire third-party medical support personnel to provide transfer assistance. If you or someone you know was required to pay for third-party medical support personnel contact 1-866-380-2003 (toll-free), or send email to BDPEyeCenter@usdoj.gov.
The Justice Department announced that it has entered into a settlement agreement with the Champaign-Urbana Mass Transit District (MTD) to resolve alleged violations of Title II of the Americans with Disabilities Act (ADA).
Under the agreement, the MTD must make its website and mobile applications conform to the Web Content Accessibility Guidelines (WCAG), Version 2.1, Level AA.
The Department of Justice announced an agreement with supermarket chain Hy-Vee, Inc. The agreement will help ensure that individuals with disabilities who use screen readers and those who have difficulty using a mouse can privately and independently book their potentially life-saving vaccination appointments online. The resolution is the department’s second agreement on this critical issue, following a November 2021 announcement of its settlement with Rite Aid Corporation.
The U.S. Department of Justice's Civil Rights Division announced that it has concluded an investigation into whether the State of Iowa subjects residents of Glenwood and Woodward Resource Centers, two state-run institutions for individuals with intellectual/developmental disabilities (IDD) in Glenwood and Woodward, Iowa, respectively, to unnecessary institutionalization in violation of Title II of the Americans with Disabilities Act (ADA).
In Focus
Employer Assistance and Resource Network on Disability Inclusion (EARN Launches New Web Site
The Employer Assistance and Resource Network on Disability Inclusion (EARN) has launched a completely redesigned website! The site helps employers and HR professionals recruit, hire, retain and advance people with disabilities in the workplace. It offers easy access to resources, including workplace training and educational materials, to assist employers in building a disability-inclusive environment and meeting their workplace diversity, equity, inclusion and accessibility (DEIA) goals. The Mental Health Toolkit and Inclusion@Work Framework, along with a suite of new online courses, easy-to-use checklists and in-depth policy guides, are all housed in one place to help employers create more inclusive workplaces. In addition, visitors will find information on trending topics such as COVID-19 and the ADA, accessible telework and workplace neurodiversity. Please visit the website at AskEARN.org.
The Docket
Ninth Circuit Says Restaurant Does Not Discriminate Against the Blind By Providing Only Drive-Through Service
By Seyfarth Shaw LLP on November 8, 2021 By Minh N. Vu
Many fast food restaurants nowadays take food orders and deliver food exclusively at the drive-through window during certain business hours. Due to safety concerns, at many locations, restaurants do not allow pedestrians to order at the drive-through window. Blind customers who do not drive have filed lawsuits against restaurants over this practice, alleging that this facially-neutral practice denies them access to the food offered by these establishments.
So far, the restaurants are winning. Last week, the Ninth Circuit in Szwanek v. Jack in the Box held that the fast food restaurant’s practice of only providing service at the drive-through does not violate the ADA, even if the practice prevents blind people from being able to independently order food. The court stated:
A facially neutral policy, like the one at issue here, violates the ADA only if it burdens a plaintiff “in a manner different and greater than it burdens others.” The operative complaint does not plausibly allege that the Jack in the Box policy did so. The refusal to serve food to pedestrians at drive-through windows does not impact blind people differently or in a greater manner than the significant population of non-disabled people who lack access to motor vehicles. If these non-disabled individuals wish to purchase food at Jack in the Box restaurants when the dining rooms are closed, they face precisely the same burden as blind people—they must arrive at the drive-through window in a vehicle driven by someone else.
(citations omitted). The court distinguished this case from another Ninth Circuit decision from 1996 (Crowder v. Kitagawa) in which the court concluded that Hawaii’s 120-day quarantine requirement for all dogs violated the non-discrimination requirements of Title II of the ADA (applicable to state governments) because the requirement “burdens visually-impaired persons in a manner different and greater than it burdens others.” The court noted that visually-impaired people have a “unique dependence upon guide dogs” and the quarantine “effectively denied these persons… meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others.” The Ninth Circuit in Crowder had relied in part on the legislative history of the ADA which evidenced Congress’ intent to ensure that people with disabilities are not separated from their service animals.
Ninth Circuit Judge Watford dissented in Szwanek, stating his view that the “drive-thru only policy unduly burdens the blind because, as a result of their disability, they are unable to drive,” and “[t]he blind (and others whose disabilities preclude them from driving) are entitled to a reasonable modification of the drive-thru only policy because that is what’s necessary to afford them “full and equal enjoyment” of the goods Jack in the Box offers.” While finding that the plaintiff did state a claim for violation of the ADA on the facts alleged in the Complaint, Judge Watford acknowledged that the restaurant might ultimately be able to show that the demanded modification of the policy was not reasonable or would fundamentally change the nature of the goods and services offered by the restaurant, but that those questions could not be decided on a motion to dismiss.
Szwanek comes on the heels of a district court decision from the Northern District of Illinois which also concluded that another fast food restaurant did not violate the ADA by limiting service to the drive-through and not allowing pedestrians to order at the drive-through window. The trial court there concluded that the reason the plaintiff was denied service was because he was a pedestrian, not because he was disabled. The court did not address the ADA’s obligation to make reasonable modifications to normal policies, practices and procedures that are necessary to ensure access, however, and the case is now on appeal to the Seventh Circuit.
Copyright © 2021, Seyfarth Shaw LLP. All Rights Reserved.
Question
Q. What responsibilities do stores and other businesses have in clearing snow from parking spaces, sidewalks and other areas? It is that time of year when the snow is falling and I want to know what the ADA says about snow removal.
A. The Americans with Disabilities Act requires businesses as well as state and local governments to maintain the accessible features of their buildings and facilities. Maintaining accessible features includes removing snow from accessible parking spaces and access aisles, sidewalks that are part of an accessible route to entrances and that includes any curb ramps located along the accessible route. Additionally, snow should be removed from around accessible entrances and if a power door is provided removing snow from around the door activating panel.
Often snow is piled into the access aisle located next to the accessible parking space. This renders the space unusable and should not be done.
Businesses and government agencies are not expected to have snow removed immediately after it has fallen but should take steps to remove snow as soon as possible. Removal of snow from these areas should be a priority. Failure to remove snow and ice from these areas will make the building/facility inaccessible to some persons, including persons with mobility and sensory disabilities.
