ADA News

ADA

Department of Justice issues advance notice of proposed rulemaking on accessibility of web information and services (Lexology)

The United States Department of Justice (DOJ) recently reiterated its intent to enforce website accessibility standards under the Americans With Disabilities Act (ADA). The DOJ is focusing on ensuring that covered entities provide ready access for the disabled to their websites. In short, the ADA accessibility rules cover anyone (governmental or private entities) that opens its doors to the public, including places of lodging, retailers, restaurants, medical facilities, banks, local governments and schools. The DOJ has consistently maintained the position that websites operated by covered entities are “public accommodations,” and recent court decisions have supported this view. The courts have reasoned that websites serve as extensions of and invitations to the physical structures that serve as more traditional public accommodations.

ADA Advanced Notices of Proposed Rulemaking

Four advanced notices of proposed rulemaking under the ADA were issued by the Department of Justice around the time their revised title II and III regulations came out. Because of all the attention given to the revised regulations many people have overlooked these important new issues. Comments are due on or before January 24, 2011.

- Equipment and Furniture
- Accessibility of Web Information and Services Provided by Entities Covered by the ADA
- Movie Captioning and Video Description
- Accessibility of Next Generation 9-1-1

Department of Justice Project Civic Access ADA Settlement Agreement with Newport, RI

St. Joseph settles deaf pair's claims (Nashua Telegraph, NH)

St. Joseph Hospital has agreed to improve its interpretation services for deaf patients after being accused of failing to communicate properly with people who are hard of hearing. In a settlement reached with the U.S. attorney’s office, St. Joseph Hospital will also erase the $10,000 medical bill of the two deaf people who forwarded the allegations to the federal government. Sheila Coombs and Gary Catania accused St. Joseph Hospital and its affiliated medical practices of providing inadequate medical care to them and their children between 2005 and 2008 because they didn’t have access to sign language interpreters.

Disabled inmates deserve chance to earn time off, lawsuit says (News Observer)
Disabled inmates in North Carolina's prisons serve longer sentences than other inmates because they are unable to participate in programs used to earn time off for positive behavior, according to a class action lawsuit filed in federal court. Brought on behalf of six d inmates with disabilities, the lawsuit contends that the system for rewarding "sentence reduction credits" violates the Americans With Disabilities Act and other federal laws. Inmates in North Carolina can shave up to six days a month off their sentences by performing work assignments and earning education credits.

Blind Fluvanna inmate wins concessions in settlement (Charlottesville Daily Progress)
A blind inmate at the Fluvanna Correctional Center for Women who filed a federal suit over claims that she hadn’t received reasonable accommodations for her disability has entered into a settlement. The agreement, which was obtained through a Freedom of Information Act request, gives Mildred Oliver access to the same services that sighted prisoners have with necessary modifications, said Steven Rosenfield, one of her attorneys. Oliver filed a suit last year against the Virginia Department of Corrections and Virginia Department of Correctional Education, claiming that they violated Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

Justice Department Fines Dallas Bus Company $55,000 for Violating ADA (The Cypress Times)

The Justice Department and the Department of Transportation announced $55,000 in fines against Tornado Bus Company Inc., of Dallas, for violating passenger carrier accessibility requirements under the Americans with Disabilities Act (ADA). In addition to the fine, a consent agreement reached with the Federal Motor Carrier Safety Administration (FMCSA) and the Justice Department requires the bus company to upgrade its fleet to meet ADA requirements by February 2011 or have its operating authority revoked. An extensive investigation conducted by FMCSA uncovered that Tornado had only one accessible bus in a fleet of 53 buses, while ADA regulations require that at least 50 percent of a carrier’s vehicles must be accessible.

Judge allows lawsuit alleging discrimination against developmentally disabled to continued against NJ (The Star-Ledger)

U.S. District Anne Thompson in Trenton has rejected arguments she heard a week ago from the advocacy group Disability Rights New Jersey and the state Department of Human Services urging her to use court records to decide whether the state violated the rights of about 1,850 people by failing to move them from institutions. The trial is needed, Thompson said, to determine whether the state is justified in postponing a plan to move them out of the state-run developmental centers before 2015 because it can’t afford to pay for it.

Having it the ADA way at Burger King — getting and staying compliant after a class action suit (Lexology) – complete article

A recent class action settlement approved by a federal court in California purports to be one of the largest of its kind.1 The settlement involved 10 Burger King restaurants in California leased by Burger King to franchisees. In the lawsuit, wheelchair and mobility scooter users alleged that architectural barriers and policies at certain California Burger King restaurants denied equal access to them in violation of the Americans with Disability Act (ADA) and California disability access laws. Architectural barriers are physical features that limit or prevent people with disabilities from obtaining the goods or services that are offered.

Examples of the claimed access barriers at the Burger King restaurants included:

- Inaccessible parking areas, dining areas and restrooms
- Doors that were too narrow or difficult to open
- Inaccessible condiments, napkins and other items
- Sidewalks and ramps that were too narrow and/or steep


ADA Employment

Court interprets ADAAA to permit disability discrimination claim based on cancer in remission (New York Labor and Employment Law)

“In one of the first cases of its kind to make it to the summary judgment phase,” a federal district court in Indiana found last month that under the recent amendments to the Americans with Disabilities Act (“ADAAA”), cancer even while in remission is a disability, Hoffman v. Carefirst of Fort Wayne Inc. The case is significant because it is one of the first cases to interpret broadly the ADAAA’s expanded definition of disability and to rely on Equal Employment Opportunity Commission (“EEOC”) guidance in doing so. It is also significant because it imposes a reasonable accommodation obligation for an impairment that did not substantially limit a major life activity at the time the accommodation was requested.

Ingram Readymix sued by EEOC for disability discrimination (Reliable Plant Magazine)

Ingram Readymix Inc., a private concrete manufacturing company with 27 concrete plants in South Central Texas and more than 500 employees, violated the Americans With Disabilities Act (ADA) when it discharged an employee because he told his supervisor that he had a disability and would be needing to take short periods of leave in the upcoming weeks for medical treatment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on September 29.

Employers May Need to Accommodate Employees' Disability-related Difficulties in Commuting to Work (Lexology) – complete article

Two recent U.S. Court of Appeals decisions clarify that employers may need to accommodate employees' disability-related difficulties in commuting to work.

In Colwell v. Rite Aid Corporation, 602 F.3d 495 (3rd Cir. 2010), the Third Circuit held that “under certain circumstances the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work, if reasonable.” In this case, an employee’s partial blindness made it difficult for her to drive to work at night. However, the company refused to schedule her on day shifts, explaining that it “wouldn’t be fair” to other workers. The employee resigned and brought suit against the employer for violating the ADA.

The court noted that, under the ADA, an employer discriminates against an employee by not providing reasonable accommodations for the employee’s physical or mental limitations, unless the employer demonstrates that the accommodation would impose an undue hardship on the employer’s business. The term “reasonable accommodation” includes:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) 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, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

The court observed that the accommodations listed in the ADA are not exclusive. Reasonable accommodations may address problems that an employee has outside the workplace, if the accommodations enhance workplace accessibility for the employee. Therefore, the court denied the employer’s request for summary judgment on the employee’s ADA claim, and held that a jury must decide whether the employee’s requested accommodation was reasonable under the circumstances.

In Livingston v. Fred Meyer Stores, Inc., No. 08-35597, 2010 WL 2853172 (9th Cir. July 21, 2010), the Ninth Circuit also held that “an employer has a duty to accommodate an employee’s limitations in getting to and from work.” As in Colwell, the employee in this case could not drive after dark due to her vision impairment. In 2005, the employer granted her request for a modified work schedule during the fall and winter months to minimize her driving at night. When the employer denied her same request in 2006, the employee refused to work her scheduled shift. She was subsequently terminated and brought suit against the employer for violation of ADA. The court disagreed with the employer’s arguments that its duty to provide reasonable accommodations did not extend to “commute-related activities.” Citing the decision in Colwell, court denied the employer’s request for summary judgment on the employee’s ADA claim. The court also noted that the employer failed to satisfy its duty ! under the ADA to interact with employees to identify and implement appropriate reasonable accommodations for the employee’s disability. This interactive process is triggered by an employee’s request for accommodation or an employer's recognition of the need for accommodation.

The lesson of Colwell and Livingston for employers is that, under the ADA, they have a duty to provide reasonable accommodations for its employees' disability-related commuting difficulties. Accommodations may include part-time or modified work schedules, or other adjustments to enhance workplace accessibility for the employee. Under the ADA, employers have the duty to interact with employees to identify and implement appropriate reasonable accommodations for the employee’s disability. Employers should remember, however, that they do not need to provide a reasonable accommodation if doing so would impose an undue hardship on their business. An undue hardship exists when an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the employers’ business.


IT/AT

21st Century Communications and Video Accessibility Legislation Passes (Sacramento Bee)

The American Association of People with Disabilities (AAPD) commends the U.S. Congress for passage of the "Twenty-first Century Communications and Video Accessibility Act." On September 28, the bill cleared its final legislative hurdle by passing the House and is expected to go soon to President Obama for signature.

New Agreement Simplifies Access to Textbooks for Disabled Students at California Community Colleges (PR Newswire)

California community college students with disabilities such as blindness and dyslexia now have quicker and easier access to alternative college textbooks, as the result of a new agreement to provide the alternative textbooks to the state's 112 community colleges.