Category Archives: Americans with Disabilities Act

Website Accessibility

Contributed by Debra Mastrian, February 21, 2017

Website accessibility continues to be a hot topic. Hundreds of businesses throughout the country have been sued in the past few years for failing to have accessible websites.  Retail businesses have been the primary target; however, financial institutions and now, the healthcare industry, are receiving threatening letters from high profile law firms, alleging that the businesses’ websites are not “accessible” and in violation of the Americans with Disabilities Act (ADA). The law firms threaten to file suit if the businesses do not make their websites compliant with the Web Content Accessibility Guidelines Version 2.0 Levels A and AA (“WCAG 2.0 AA”), created by the World Wide Web Consortium, and demand a settlement, including payment of attorneys’ fees.

The ADA does not currently have an accessibility standard that private companies must comply with regarding websites. However, the federal agency charged with ADA enforcement – the United States Department of Justice (DOJ) – has stated its position that Title II and Title III of the ADA requires public and private entities that have websites to make their websites accessible to individuals with disabilities. Although no final regulation has been issued, and none is expected until 2018 at the earliest, the DOJ has initiated a number of enforcement actions against private companies and public entities.  In settling enforcement actions, the DOJ has generally required compliance with WCAG 2.0 AA. It remains to be seen if the enforcement actions will continue under President Trump’s administration, however, businesses must still take heed because of the threat of lawsuits by private law firms.

cloud-computer-tablet-phoneThere are steps businesses can take to reduce the risk of being sued or having liability, including:

  • Educate yourself and IT employees regarding WCAG 2.0 AA standard
  • Retain a website accessibility consultant/vendor to review your website using the WCAG 2.0 AA standards
  • Redesign and/or update your website to conform with WCAG 2.0 AA
  • Set up regular monitoring of your website for compliance with WCAG 2.0 AA and ensure that all new content is reviewed for accessibility before being added to the website
  • Adopt an internal website accessibility policy that includes a reporting mechanism for any complaints, issues or suggestions about accessibility to your website and online banking services
  • Distribute your website accessibility policy to technical support staff and vendors
  • Train employees on accessibility and current WCAG 2.0 AA standard
  • Put a statement on the homepage of your website (or a link to the statement) about your commitment to website accessibility, solicit feedback, and include contact information for reporting problems
  • Add alt-text, captions and other features that make your website more accessible  to individuals using screen reader or other assistive technology
  • Require vendors providing website, apps, online banking, advertising or other services, to make their products and services “accessible” in conformance with the ADA and WCAG 2.0 AA
  • Have a written agreement with vendors, who are providing website redesign, updates or monitoring, which includes compliance with WCAG 2.0 AA accessibility standards in the scope of the work being performed and request a rep and warranty regarding accessibility
  • Review indemnification provisions in vendor agreements to determine if the vendor agrees to indemnify you for claims resulting from the vendor’s negligence or failure to comply with WCAG 2.0 AA or ADA website accessibility standards

If you receive a demand letter, you should promptly report the demand letter to your insurance agent or applicable insurance companies. Employment practices liability (EPL) policies may provide coverage for website ADA claims brought by third parties. Media liability or cyber security policies may also apply, depending upon the policy coverage and exclusions.  Additionally, since the demand letter is a threat of litigation, you should implement a legal hold to preserve and protect all potentially relevant documents and information. Importantly, demand letters must be taken seriously. Failing to appropriately address may result in costly litigation. That being said, it is important to understand that settling with a private litigant does not insulate the business from litigation by the DOJ or other private litigants.

Website accessibility is an evolving area of law. Businesses should be aware of the issues and understand their potential exposure to threats of litigation.

Website Accessibility Lawsuits Under Title III of the ADA – Are you Exposed?

Contributed by Michael Wong, October 18, 2016

The Americans with Disabilities Act (ADA) not only provides employment protections and accommodation rights to qualified individuals with disabilities in the workplace, it also requires reasonable accommodations in “places of public accommodation.” Places of public accommodation include businesses that are open to the public and fall within one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices. The ADA’s mandate extends to newly constructed or altered places of public accommodation including privately owned, nonresidential commercial facilities such as factories, warehouses, and office buildings.

17103126_sTraditionally, Title III has meant that businesses with brick and mortar locations had to remove physical barriers to provide equal access and opportunities to individuals with disabilities (i.e. installing wheelchair ramps or elevators, accessible restrooms, and handicap parking spaces). However, courts and the U.S. Department of Justice (DOJ) over the past few years have interpreted Title III to also require accessible public websites.

Even though the DOJ has not issued guidelines or standards for web accessibility for private businesses, it has been seeking to enforce Title III against private businesses. Moreover, over the past few years, more and more private litigants have been sending demand letters and filing lawsuits against businesses. Indeed, several have become “professional litigants” in this area, much like we have seen with the Fair Credit Reporting Act (FCRA). The number of cases filed alleging violations of Title III has more than doubled over the past few years.

While relief under Title III of the ADA is limited to injunctive relief (i.e. business is ordered to shut down website or make it accessible), successful litigants can recover their attorneys’ fees and costs. Additionally, some state laws provide for additional monetary damages. For example, in California the damages are up to three times the amount of actual damages, but not less than $4,000, plus attorneys’ fees and costs. It is noteworthy that California has taken some steps to address “high-frequency litigants” and exempted certain businesses from the full minimum $4,000 statutory damages. However, the potential exposure and liability for a Title III website accessibility claim is real.

What do businesses need to know and do?

First and foremost, check whether your websites are accessible. Though the DOJ has not issued formal regulations, it has recognized Version 2.0 of the Web Content Accessibility Guidelines (WCAG 2.0) published by the World Wide Web Consortium (W3C) as an appropriate standard. Next, promptly remediate any deficiencies identified in your websites. Note that sometimes it is more cost effective to create a new website than to make an old website accessible. Third, be on the lookout for further guidance. The DOJ has indicated its intent to issue a proposed rule regarding website accommodation. Finally, consult with qualified counsel on ways to limit exposure to potential accessibility lawsuits and how to respond to a demand letter or lawsuit alleging a violation of Title III.

Recent Federal Court Decision Requires Employees to Shoulder Some of the Burden of Disability Accommodations

Contributed by Steven Jados, October 3, 2016

The Americans with Disabilities Act (ADA) and the laws of many states generally require employers to provide “reasonable accommodations” to certain employees with disabilities. This requires the employer and employee to participate in an interactive process aimed at finding job changes that allow the employee to continue working. For many employers, that requirement raises many questions for which there are no simple, definitive answers—which forces employers to make accommodation decisions amid considerable uncertainty.

gavelbwBut the recent decision in Dillard v. City of Austin, Texas, from the U.S. Court of Appeals for the Fifth Circuit, may help employers handle situations when employees cause a breakdown in the interactive process. The plaintiff in the case, Derrick Dillard, was employed to operate machinery and perform manual labor until he was injured on-the-job in March 2011. Thereafter, he received FMLA leave and, after that ran out, additional discretionary leave. In early 2012, Dillard was cleared to return to work for the first time, albeit in a limited capacity that did not allow him to resume his former job.

In an effort to accommodate Dillard’s medical restrictions and return him to work, the City offered him a position as an administrative assistant, even though he had no relevant experience and his qualifications for the position were lacking. Dillard expressed reservations, but ultimately took the job in May 2012.  As an attempt to ensure that Dillard succeeded as an administrative assistant, the City provided him typing and computer training, allowed him to “shadow” another administrative assistant, and provided Dillard access to additional training programs. But Dillard’s skills did not improve and he did not pursue additional training. Instead, he played computer games, made personal calls, repeatedly arrived late, left early, or missed work altogether—and lied about his work time. By September 2012, the City determined that Dillard’s performance was unsatisfactory, and terminated his employment.

Shortly thereafter, Dillard sued the City, alleging that it unlawfully failed to accommodate his disability and terminated him because of it. The trial court ruled against Dillard, and, on appeal, the Fifth Circuit stated that the law required Dillard “to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.” But because Dillard did not do that, the court determined that Dillard was solely responsible for the breakdown in the reasonable accommodation process, and the City was not liable under the ADA or Texas State law.

Now, employers should note that this decision is not necessarily the law of the land for the entire U.S., because decisions of the Fifth Circuit are controlling law only in the states of Louisiana, Mississippi, and Texas. Employers must also realize that reasonable accommodation cases are extremely fact-specific, which makes it unlikely that this outcome can be expected every time an employer faces an ADA lawsuit. In particular, if the City had not been so accommodating, and if the employee’s lack of good faith effort was not so clear, the case might have been decided differently.

The bottom line is that although employers must engage in good faith efforts to find a reasonable accommodation, the employee has the same obligation—so employers should not hesitate to document instances in which an employee stands in the way of making a successful accommodation, because such documentation may later provide a basis for disciplinary action, as well as a defense to claims of discrimination and failure to accommodate.

Sixth Circuit Decision Reminds Us That ADA Plaintiffs Must Reconcile Social Security Benefits Finding of Total Disability to Establish ADA Failure to Accommodate Claim

Contributed by Allison Sues, August 2, 2016

On July 28, 2016, the Sixth Circuit Court of Appeals issued an unpublished decision that analyzed an Americans with Disabilities Act (ADA) failure to accommodate a claim involving an employee who had applied for and received social security benefits for her disability. This case provides a helpful reminder on how employers should handle ADA plaintiffs who allege that they can return to work with accommodation but elsewhere represent that they are totally disabled from working.

Social Securty Disability BenefitsIn Stallings v. Detroit Public Schools, Case No. 15-2428, the court affirmed the district court’s grant of summary judgment in favor of the school district on a former teacher’s failure to accommodate claim. A classroom teacher suffered from an arthritic knee and requested various, and sometimes conflicting, accommodations seeking to avoid classroom work. The school district did not accommodate her by removing classroom work from her duties and the teacher felt compelled to resign. She then applied for and received social security benefits. In her social security benefits application, the plaintiff asserted that she was completely incapable of working.

By following the United States Supreme Court’s decision in Cleveland v. Policy Management Systems Corp., the Sixth Circuit determined that a statement of total disability in a social security benefits proceeding does not foreclose a plaintiff’s ability to show that she is a qualified individual under the ADA, meaning that she can perform the essential functions of her job with or without an accommodation. The Cleveland case instructs that plaintiffs must be given an opportunity to offer a sufficient explanation for the apparent contradiction. Cleveland reasoned that an employee can both be deemed totally disabled under social security law, which does not take reasonable accommodations into consideration, and a qualified individual under the ADA, where an employee who is totally disabled from working without an accommodation may be able to return to work with accommodation.

In Stallings, the plaintiff was unable to reconcile the contradiction between the finding of total disability in her social security proceedings and her assertion that she was a qualified individual under the ADA. The plaintiff argued that she could have completed the essential functions of her job with a reasonable accommodation – a four-month leave – but she had represented to the Social Security Administration that her disability was an ongoing condition and would prevent her from working for a period of no less than twelve months.

This case serves as a helpful reminder to employers that an employee’s statement of total disability – whether in social security proceedings, a Family and Medical Leave Act request, or even a doctor’s note – may not be considered the final word on whether that employee is a qualified individual under the ADA. However, the contradiction must be overcome by the employee’s ability to return to work with an accommodation.

Colorado to Join Growing Number of States with Pregnancy Accommodation Obligations

Contributed by Allison Sues, May 26, 2016

The Colorado state legislature recently passed House Bill 16-1438 requiring employers to engage in an interactive process to assess potential reasonable accommodations for pregnant employees and applicants for health conditions related to pregnancy and childbirth.

If Colorado’s governor signs this bill into law, Colorado will join a growing group of states that have passed similar legislation, including Alaska, California, Connecticut, Delaware, Hawaii, Illinois, Minnesota, Nebraska, New Jersey, New York, Rhode Island, Utah, West Virginia, and the District of Columbia. These state laws require employers to accommodate medical conditions and limitations stemming from pregnancy that may not separately qualify as a disability.

Key Points of State Pregnancy Accommodation Laws

pregnant employeeEach of the state laws include an undue hardship exception, meaning that employers do not need to provide the pregnancy accommodations if doing so would impose significant difficulty or expense. Most of the state laws provide that an employer may require that the pregnant employee produce medical documentation, including advice from a health care provider, regarding the requested accommodation. Many of the state laws require accommodation of conditions related to not only pregnancy, but also childbirth recovery and nursing. The statutes provide several examples of reasonable accommodations that employers may need to provide for pregnant employees, including:

  • Frequent or longer bathroom breaks
  • Breaks for increased water or food intake
  • Breaks for periodic rest
  • Obtaining or modifying equipment or seating
  • Assistance with manual labor
  • Temporary transfer to a less strenuous or hazardous position, if available (with return to position after pregnancy)
  • A part-time or modified work schedule
  • Leave – though most laws explicitly provide that an employer cannot force a pregnant employee to accept leave where alternative accommodations exist

Nearly all of the state statutes expressly prohibit retaliating against any employee who requests a reasonable accommodation for pregnancy-related conditions.

Relation to Current Federal Law

These state laws impose broader obligations on accommodating pregnant employees than what is currently required under federal law. Under federal law, employers must treat pregnancy-related disabilities the same as they would any other disability; however, they do not need to accommodate other conditions or needs stemming from a normal, healthy pregnancy if it does not qualify as a disability under the Americans with Disabilities Act (“ADA”), as amended by the Americans with Disabilities Act Amendments Act (“ADAAA”).

Notably, while employers may not need to offer non-disabled pregnant employees with accommodations under the ADA, denying pregnant employees’ requested accommodations may also give rise to liability under Title VII’s disparate treatment provision, which the Pregnancy Discrimination Act amended to prohibit discrimination “on the basis of pregnancy, childbirth, or related medical condition.” 42 U.S.C. § 2000e(k). Denying a certain accommodation to pregnant employees but providing similar accommodations to other categories of employees – such as employees with on-the-job injuries or ADA disabilities – may allow pregnant employees to allege a discrimination claim that they are treated less favorably than other groups of employees.  Because of the varied – and sometimes conflicting – state and federal obligations surrounding accommodating pregnant employees, employers are encouraged to discuss such requests with legal counsel.

EEOC Issues Final Rules on Wellness Plans

Contributed by Suzanne Newcomb, May 23, 2016

The EEOC has finalized 2 rules relevant to employer wellness programs. The Final Rules, which can be found here and here, amend existing regulations implementing the Americans With Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (“GINA”), respectively, and specifically address employer-sponsored wellness programs.

employee wellnessThe ADA prohibits employers from making disability-related inquires or requiring medical examinations, except in limited circumstances. GINA prohibits employers from requesting, requiring or purchasing “genetic information” about employees and their family members, except in limited circumstances. These prohibitions, coupled with the statutes’ expansive definitions of “disability” and “genetic information” have complicated employers’ well-intentioned efforts to implement incentives aimed at promoting health and disease prevention.

Although the Final Rules differ slightly from proposed rules issued last year, there are no major surprises. The Final Rules permit employers to offer incentives to employees who choose to participate in voluntary wellness programs or who achieve certain health outcomes as long as:

  • The program is “reasonably designed to promote heath or prevent disease.” The rule explains that this generally means the program provides useful feedback to employees (or their participating spouses) rather than simply alerting the employer to estimated future healthcare costs;
  • The program is truly voluntary, meaning employees are not required to participate and those who choose not to participate (or who fail to achieve certain goals) are not denied coverage, or subjected to adverse employment actions (i.e. termination, or other on-the-job retaliation);
  • The program may, as part of a “Health Risk Assessment,” offer inducements for an employee or participating spouse to provide information about his or her own  “manifestation of disease or disorder” but may not offer inducements or otherwise request this information specific to the employee’s children;
  • The employees receive notice describing the medical information that will be obtained, the specific purposes for which it is obtained, with whom the information will be shared, and the methods used to prevent improper disclosure;
  • Any incentives offered (financial or in-kind) may not exceed 30% of the total cost (employee-paid plus employer-contributed) of employee-only insurance coverage (or 30% of the cost of the second lowest cost Silver plan for a 40 year old non-smoker if the employer offering the wellness program does not offer health insurance). The 30% limit is applied separately to any incentives offered to the employee and any incentives offered to the employee’s participating spouse. It is not a cumulative total;
  • With limited exceptions, the medical information gathered must be kept confidential and shared with the employer only in an aggregate form not reasonably likely to disclose information specific to any individual employee; and
  • The employer provides reasonable accommodation to allow employees with disabilities equal opportunity to participate in the programs and to earn incentives.

Obesity Alone Does Not Qualify as a Disability Under the ADA says the 8th Circuit

Contributed by Carlos Arévalo

The Eighth Circuit Court of Appeals recently affirmed a Nebraska federal court’s decision ruling that to constitute an ADA impairment, obesity, even morbid obesity, must be the result of a physiological disorder or condition. In the case of Morriss v. BNSF Ry. Co, Case No. 14-3858 (8th Cir. April 5, 2016), the court held that a morbidly obese job applicant rejected for a position as a railroad machinist could not show he was regarded as disabled under the ADA.

Melvin Morriss applied for a machinist position with BNFS Railway Company in March 2011. He was extended a conditional offer of employment contingent upon a satisfactory medical review. Morriss completed a medical questionnaire indicating he was 5’10” and 270 pounds. BNSF doctors conducted two examinations which revealed Morriss’ weight to be higher, with a body mass index (BMI) of over 40. Pursuant to its policy, BNSF did not hire any new applicants for safety-sensitive positions that had a BMI of 40 or greater. Consequently, BNSF revoked its conditional offer of employment.

18629626_sMorriss filed suit alleging disability discrimination under the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), claiming that his obesity was a disability. To prevail on his claim, Morriss had to show that his obesity was a “physical impairment” – which is defined by the EEOC as a physiological disorder or condition affecting one or more body systems. Morris pointed to other interpretative EEOC guidelines that exclude physical characteristics, such as weight within the normal range. Thus, an individual’s obesity would only have to be result of a physiological disorder if his weight was within the normal range. Because Morris’ weight was outside the normal range, he claimed he did not have to show a physiological disorder. The court rejected Morriss’ interpretation noting that the more natural reading was that “an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder.”

Morriss also argued that following the adoption of the 2008 ADA amendments, courts have found that that obesity constitutes a physical impairment, even without an underlying physiological disorder. However, the court adroitly pointed out that Congress did not direct the EEOC to change its definition of physical impairment, thereby affirming the necessity of having obesity be the result of a physiological disorder or condition in order to be deemed a disability under the ADA.

With Morriss, the 8th Circuit joined the 2nd and 6th Circuits and other state and federal courts in rejecting the idea that obesity alone is a disability under ADA. However, employers should be mindful that this issue remains unsettled and more decisions, not necessarily consistent with Morriss, will surely follow.