Category Archives: Accommodations and Accessibility

Can a Driver Who Does Not Satisfy DOT Standards Win an ADA Claim?

No – the Fifth Circuit Court of Appeals recently held that a driver who does not satisfy the requirements for commercial drivers established by the U.S. Department of Transportation (DOT) is a not a qualified individual with a disability under the Americans with Disabilities Act (ADA).

In Williams v. J.B. Hunt Transport, Inc., the plaintiff was a commercial truck driver who fainted at his home one day and was later diagnosed with syncope and an irregular heartbeat.  No. 15-20610 (5th Cir. June 20, 2016).  Following this diagnosis, the plaintiff’s DOT medical certification was rescinded.  In response, the employer sent a letter to the plaintiff requesting more information and a return-to-work date.  The plaintiff never provided this information.  After the plaintiff’s medical leave expired, the employer terminated his employment, and the plaintiff sued for alleged violation of the ADA.

In analyzing the plaintiff’s claims, the Fifth Circuit noted that several other federal circuit courts – the Sixth, Seventh, and Eighth Circuits – have each held that a commercial driver who does not satisfy DOT requirements is not a qualified individual with a disability.  The court agreed with this reasoning and concluded that “[b]ecause he lacked the DOT certification required by federal law, J.B. Hunt could not let him return to driving, and the company’s administrative termination of Williams did not violate the ADA.”

Takeaway:  Employees who are not qualified to perform the essential functions of their jobs, such as complying federal DOT regulations, with or without accommodation, are generally not able to bring successful ADA claims.

Can An Employer Refuse To Hire An Applicant For Being Too Obese?

Maybe – the Eighth Circuit Court of Appeals recently held that refusing to hire an employee due to his or her obesity does not constitute disability discrimination under the Americans with Disabilities Act (ADA) unless certain conditions are met.

In Morriss v. BNSF Railway Co., the employer maintained a policy that it would not hire an employee for a safety-sensitive position if the employee’s body mass index (BMI) was over 40.  After receiving a conditional offer of employment, the plaintiff underwent two pre-employment physical examinations for a safety-sensitive position.  At the first examination, his BMI was 40.9.  At the second examination, his BMI was 40.4.  Following the examinations, the employer revoked the offer of employment and stated that the employee was not qualified for the position “due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater).”  The employee then sued.

On appeal, the Eighth Circuit Court of Appeals upheld the district court’s dismissal of the plaintiff’s claims on summary judgment.  The Eighth Circuit agreed with the lower court’s decision that the plaintiff failed to prove that his obesity was a disability protected by the ADA.

The ADA defines the term “disability” to include a “physical or mental impairment that substantially limits one or more of the major life activities” of an individual.  29 C.F.R. § 1630.2(g)(1).  The ADA further defines the phrase “physical or mental impairment” to include “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.”  29 C.F.R. § 1630.2(h)(1).

In Morriss, the plaintiff was unable to show that his obesity was a “disability” because he could not show that it was the result of an underlying “physical or mental impairment.”  In rejecting the plaintiff’s discrimination claim, the court explained that:

[A]n 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.  Both requirements must be satisfied before a physical impairment can be found.  In other words, weight outside the normal range—no matter how far outside the normal range—must be the result of an underlying physiological disorder to qualify as a physical impairment under the ADA.

The plaintiff in Morriss was unable to satisfy this definition of disability because even his own doctor testified that he did not suffer from any medical condition that caused his obesity or any medical condition associated with obesity, such as diabetes, hypertension, cardiac disease, or sleep apnea.

Takeaway:  Obesity does not qualify as a disability under the ADA unless it is both outside the normal range of weight and is the result of an underlying physical impairment.

Minnesota Legislature Considers Bill to Avoid Shakedown ADA Litigation Threats Against Public Accommodations

As previously reported, a national trend seen here in Minnesota involves public accommodations receiving letters from attorneys threating costly litigation alleging non-compliance with the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) regarding proper accessibility for the disabled.  These demands typically offer to settle the matter for amounts far less than the costs of litigation.

A bill has now been introduced in the Minnesota House which seeks to avoid these shakedown threats, while at the same time ensuring accessibility compliance.  The Civil Law Committee passed the bill and it is now on the House floor.

The proposed legislation sets forth a required procedure regarding demand letters which are sent by attorneys prior to the filing of a MHRA civil action.  The demand letter must (i) specify the architectural barrier that is the subject of the alleged violation; (ii) cite the law alleged to be violated; (iii) provide a reasonable time period – not less than 30 days – in which to respond; and (iv) not include a request or demand for money or an offer or agreement to accept money.  The demand letter may, however, offer to engage in settlement discussions prior to litigation.  These requirements do not apply to letters sent by persons unrepresented by legal counsel.  The bill also provides that the one-year statute of limitations applicable to MHRA claims is suspended during the time period provided for under this demand letter process.

When a compliant demand letter has been sent, a civil action may not be filed if the public accommodation, within the response time period set forth in the letter, (i) provides proof to the opposing lawyer that the architectural barrier has been removed; (ii) demonstrates that a barrier removal audit has been scheduled with a certified accessibility specialist, agrees to produce the audit report when completed, and further agrees to comply with any remedial plan in the audit; (iii) produces a barrier removal audit finding that the alleged barrier does not violate accessibility requirements or finding that compliance with such requirements is not readily achievable or cannot be accomplished by alternative means; or (iv) producing a barrier removal audit containing a remedial plan with a reasonable timeline for completion.  Similarly, each of these bases also provides a public accommodation with an affirmative defense to a civil action for failure to comply with Minn. Stat. § 363A.11, subdivision 3 in removing an architectural barrier.

This demand letter process does not bar an individual’s right to file a charge of discrimination with the Minnesota Department of Human Rights or to bring a claim for damages resulting from an injury, challenging a barrier removal audit finding or remedial plan, or based on a failure to timely complete a remedial plan or remove a barrier.  These demand letter requirements also do not apply to attorneys representing the State of Minnesota or one of its political subdivisions.

Takeaway:  If you want to express your opinion regarding this proposed legislation, you should contact your state representative as this matter is being considered in the Minnesota House.

Can An Employee’s Bizarre Behavior Support A Determination That He Poses A “Direct Threat” Under the ADA?

Yes – the Sixth Circuit Court of Appeals recently held that a police department made an objectively reasonable decision that an officer posed a direct threat and, therefore, was not qualified to do his job under the Americans with Disabilities Act (ADA), based in part on the officer’s bizarre behavior.

In Michael v. City of Troy Police Department, the plaintiff was a police officer who began acting strangely after undergoing two brain surgeries for a brain tumor.  No. 14-2478 (6th Cir. Dec. 14, 2015).  In 2007, the department learned of the officer’s strange behavior after his wife reported that she found a box of empty steroid vials in his possession, some of which were labeled for veterinary use, and turned them in to the City’s Chief of Police.  When the Chief of Police refused to return the steroid vials to the Plaintiff, the plaintiff began exhibiting a series of aberrant behaviors, including:

  • Secretly recording the Chief of Police;
  • Suing the Chief of Police in small claims court;
  • Attempting to serve the Chief of Police with legal process at his retirement party;
  • Secretly recording his wife during marriage counseling sessions and family gatherings;
  • On the basis of those recordings, asking the City prosecutor to charge his wife with perjury; and
  • Accompanying a cocaine dealer to several drug deals.

Following a third brain surgery in 2009, multiple doctors disagreed about whether the plaintiff was fit to work as a police officer.  Two doctors concluded that it was not safe for him to work as a police officer, but others concluded that it was safe for him to return to work.  The City decided to keep the plaintiff on unpaid leave and not to allow him to return to work.  Thereafter, the plaintiff sued, alleging violations of the ADA.

The Sixth Circuit Court of Appeals decided that the employer’s actions were objectively reasonable and did not violate the ADA.  In reaching this conclusion, the court explained that it was not only reasonable for the employer to rely on the opinions of the two doctors who determined plaintiff was not fit for duty, but it was also reasonable for the employer to base its decision on the plaintiff’s bizarre behavior.  The court concluded that based on the plaintiff’s behavior, it was “eminently reasonable” for the employer to be concerned about whether the plaintiff could safely perform his job duties.  Because the employer’s decision that the employee posed a direct threat to the safety of himself or others was objectively reasonable, the court concluded that the employer did not violate the ADA by failing to return him to work.

Takeaway:  The determination that an employee poses a direct threat to his or her own safety or the safety of others for purposes of the ADA may be based on evidence regarding the employee’s behaviors.

DOJ Delays Website Accessibility Regulations Under Title III of the ADA Until 2018

In a recent Statement of Regulatory Priorities, the U.S. Department of Justice (DOJ) announced that it does not expect to publish regulations regarding website accessibility for places of public accommodation under Title III of the Americans with Disabilities Act (ADA) until 2018. That is only eight years after the DOJ first solicited public comments for potential regulations concerning website accessibility in 2010.

As we’ve previously described, the lack of regulations concerning website accessibility for places of public accommodation leaves many unanswered questions. In the meantime, the DOJ has argued in several recent cases that places of public accommodation should ensure that their websites adhere to the WCAG 2.0, Level AA guidelines developed by the World Wide Web Consortium (W3C). The DOJ also expects to issue regulations addressing website accessibility for state and federal governments under Title II of the ADA sometime in 2016.

Takeaway: The DOJ will likely not issue regulations to establish website accessibility standards for places of public accommodation under Title III of the ADA until sometime in 2018. In the meantime, the WCAG 2.0, Level AA guidelines remain the best resources available for developing an accessible website.

Legislation Considered to Reduce Questionable ADA Litigation Against Public Accommodations

Legislation is under consideration at both the federal and the state level to address a dramatic increase in litigation against places of public accommodation alleging violations of the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA). Many have questioned whether the motive underlying these lawsuits is a legitimate interest in increasing accessibility or an opportunistic desire to make money.

Over the past year, more than 100 public accommodation lawsuits have been filed in Minnesota alone, many targeting small business for alleged violations of the ADA and the MHRA. Similar lawsuits have also been filed in California, Florida, and Texas.

In many of the lawsuits, whether the alleged violation exists or truly impedes accessibility for the disabled is highly questionable. For example, one of the lawsuits targeted a small business with an accessibility ramp that was just one degree off from what was required. Another lawsuit alleged that a restaurant did not have accessible seating in the front of the restaurant, but the small business owner strenuously argued that accessible seating was available. In virtually every case, however, the litigants have demanded a settlement in the amount of $5,000 to $10,000, which is far less than the cost of litigating. The result is that many small business owners give in to the demand and pay the settlement even though there may be a valid defense on the merits and even though no actual damages may have occurred.

A number of individuals and organizations that strongly support the public accommodation provisions of the ADA and MHRA question the tactics and motives of these lawsuits. The City Pages reports that some disabled individuals believe that the lawsuits are undermining the effectiveness of the laws and giving a bad name to legitimate efforts to address accessibility issues. According to WCCO, the Minnesota State Council on Disability disapproves of the strategy underlying the lawsuits as well.

To address these problems, legislation is under consideration at both the federal and state levels that would require that before a party files a lawsuit for a public accommodation violation under the ADA or MHRA, the party would first have to: (i) provide a prelitigation notice of the violation to the place of public accommodation; and (ii) allow the public accommodation a period of time (e.g., 60–120 days) to fix the problem before filing a lawsuit. If the public accommodation fails to fix the problem, only then would a lawsuit be permitted. The intent behind the legislation is to create a process for addressing accessibility problems without forcing small businesses to choose between paying a settlement of questionable merit or incurring even greater costs to defend themselves.

In the meantime, one step that small business owners can take to protect themselves is to review their public spaces for compliance. Some good resources for small businesses to consult regarding their accessibility obligations include the following:

Takeaway: If you feel strongly about the proposed legislation to require a prelitigation notice and a waiting period before a public accommodation lawsuit can be filed under the ADA or MHRA, you should contact your federal or state representatives to let them know how you feel.

Recent Study Gives Many Employers a Failing Grade Regarding Nursing Mother Protections

The University of Minnesota recently published a study reporting that only 40% of working mothers were provided with adequate break time and a clean, private space for expressing milk upon their return to work from parenting leave. To help employers avoid liability for failing to comply with applicable legal requirements relating to nursing mothers, here is a quick reminder about what the law requires:

Federal Nursing Mother Protections

Under federal law, the Fair Labor Standards Act (FLSA) requires that employers must provide employees with unpaid “reasonable break time” to express milk for their child for up to one year after the child is born. For these breaks, the employer must provide the employee with a private space, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. Employers with less than 50 employees may be able to avoid this requirement, however, if they can show that it imposes an undue hardship. For more information, click here.

Minnesota Nursing Mother Protections

Under Minnesota law, the recently passed Women’s Economic Security Act (WESA) also creates protections for nursing mothers. WESA requires that employers must provide an employee with “reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child.” The law specifies that the employer must provide a room or other location, in close proximity to the work area, other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express her milk in privacy. Like the FLSA, there is an exception to these requirements if the employer can show that they would “unduly disrupt the operations of the employer.” For more information, click here.

Takeaway: The University of Minnesota’s recent study suggests that many employers may be exposed to potential liability for failure to comply with legal requirements relating to nursing mothers. If employers are in doubt, they should review their practices to ensure compliance.

How To Deal With Hungover Employees

According to a recent study by the Center for Disease Control (CDC), employers in the U.S. lost approximately $77 billion in 2010 due to the impaired productivity of hungover employees. The figure is $90 billion if you include absenteeism due to hangovers, and it balloons to $249 billion if you add in the additional costs of health care, car crashes, and deaths. Here’s what employers should know about dealing with the costly problems posed by hungover employees:

Under the Americans with Disabilities Act (ADA), alcoholism can, in some circumstances, qualify as a disability. As a result, employers need to be careful about taking an adverse action against an employee solely because he or she is an alcoholic. In some cases, it may also be appropriate to offer a reasonable accommodation to an employee struggling with addiction, such as a leave of absence to attend a treatment program.

On the other hand, the ADA is also clear that an employer may discipline an employee for legitimate workplace performance problems relating to the use of alcohol or other drugs. The ADA regulations provide that an employer:

May hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the entity holds its other employees, even if any unsatisfactory performance or behavior is related to the employee’s drug use or alcoholism.

29 C.F.R. § 1630.16(b)(4). Therefore, it is permissible for the employer to discipline or terminate an employee for any performance problems that occur in the workplace as a result of alcohol or drug use, so long as the discipline is not based on the employee’s status as an alcoholic or an addict alone.

Employers also need to be aware that certain states prohibit employers from disciplining or terminating an employee for his or her off-duty consumption of alcohol or other legal products, unless certain exceptions apply. For example, the Minnesota Lawful Consumable Products Act provides that an employer may not discipline an employee for off-duty consumption of alcohol unless the discipline is based on: (1) a bona fide occupational requirement and is reasonably related to the employment activities or responsibilities of the particular employee or group of employees; or (2) is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any of the responsibilities owed by the employee to the employer. Minn. Stat. § 181.938.

Like the ADA, lawful product laws provide an additional reason for employers to focus not on the employee’s consumption of alcohol, but rather on the employee’s poor performance in the workplace, when addressing performance problems due to hangovers.

Takeaway: When dealing with hungover employees, employers should generally focus on the employee’s workplace performance problems – such as lack of productivity, absenteeism, inattentiveness, or errors in work product – without passing judgment on the employee’s off-duty behaviors or whether the employee has an addiction problem.

If An Employee Works For Two Years After Retracting a Request for Accommodation, Can The Employee Win on a Failure to Accommodate Claim?

No – the Sixth Circuit Court of Appeals recently rejected a failure-to-accommodate claim brought by an employee who worked without accommodation for two years after he requested and then retracted his request for accommodation.

In Aldini v. Kroger Co. of Michigan, the employee initially requested a lifting restriction of no more than 25 pounds and a 15-minute break every two hours. No. 15-1044 (6th Cir. Oct. 7, 2015). After his supervisor told the employee that lifting more than 25 pounds was an essential requirement of the job, the employee went back to his doctor who cleared him to work without restrictions. The employee then worked for two years without requesting any further accommodations before filing a charge of discrimination with the EEOC for alleged violations of the Americans with Disabilities Act (ADA).

The Sixth Circuit quickly disposed of the employee’s failure-to-accommodate claim. The court reasoned that the employee’s retraction of his request for accommodation meant that the employee could not satisfy his burden of proving that he requested an accommodation or that the employer was aware of his need for an accommodation. The court stated that the employee’s decision “decision to withdraw his request and continue working without complaint means his claim must fail and summary judgment is appropriate.”

Takeaway: If an employee retracts a request for accommodation and then continues to work for a long period of time without accommodation, the employee likely cannot succeed on a failure-to-accommodate claim under the ADA.

Another Federal Circuit Court Rejects Telecommuting as a Reasonable Accommodation

Another federal circuit court of appeals recently rejected the argument that telecommuting was required as a reasonable accommodation for a disabled employee.

The Sixth Circuit Court of Appeals made waves in 2014 when it concluded that telecommuting was required as a reasonable accommodation for an employee.  Then in early 2015, the Sixth Circuit reversed its previous holding through an en banc review and concluded that telecommuting was not a reasonable accommodation.  In that decision, the Sixth Circuit held that “regularly attending work on-site is essential to most jobs, especially the interactive ones.”

In Doak v. Johnson, the D.C. Circuit reached a similar conclusion to the Sixth Circuit’s en banc analysis.  No. 14-5053 (D.C. Cir. Aug. 18, 2015).  In Doak, the plaintiff worked as a program analyst, whose job duties included monitoring the budget, making procurement requests, and attending in-person meetings with her co-workers.  The plaintiff also suffered from hypothyroidism, depression, and migraines that caused her to miss a significant amount of work on an unpredictable basis.  After exhausting her FMLA leave, the plaintiff requested various accommodations, including a late start-time of 11:00 a.m. (everyone else started between 6:00 and 8:00 a.m.) and telecommuting.  The employer denied the late start-time and telecommuting requests on the grounds that the plaintiff’s position required her to interact frequently with various co-workers and that the accommodations did not allow her to perform those job functions.  Later, the employer terminated the plaintiff due to her ongoing inability to work a regular schedule, and the employee sued.

The D.C. Circuit Court of Appeals agreed with the employer that the plaintiff’s proposed accommodations would not enable her to perform the essential functions of her job – particularly, her ability to be “present in the office to participate in interactive, on-site meetings during normal business hours and on a regular basis.”  The court found that there was strong evidence that being present during regular working hours was an essential function of the plaintiff’s job and that the plaintiff did not present any evidence to the contrary.  As a result, the court upheld the dismissal of the plaintiff’s claims on summary judgment.

Takeaway:  Although telecommuting may be a reasonable accommodation for a disabled employee in certain circumstances, it is generally not a reasonable accommodation when in-person attendance is an essential function of the employee’s job.

Can You Fire An Employee For Threatening to Kill Co-Workers?

Yes – a sincere belief that an employee made threats of violence is perhaps one of the strongest defenses available to claims for wrongful termination.  A recent decision from the Ninth Circuit illustrates this principle well.

In Mayo v. PCC Structurals, Inc., the Ninth Circuit Court of Appeals rejected claims for disability discrimination asserted by an employee who made threats of violence in the workplace.  No. 13-35643 (9th Cir. July 28, 2015).  The employee made multiple threatening comments.  He told one employee that he felt “like coming down with a shotgun and blowing off” the heads of a supervisor and a manager.  He told another employee that he planned to “take out management.”  On another occasion, he said that he wanted “to bring a gun down and start shooting people.”  After these threats were reported, the employer terminated the employee.

In his lawsuit, the employee alleged that the employer discriminated against him on the basis of his disability, major depressive disorder.  The court dismissed the employee’s claim for failure to establish a prima facie case because the employee could not establish that he was a “qualified individual with a disability.”  The court explained that:

An essential function of almost every job is the ability to appropriately handle stress and interact with others.  And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions (here, at least five times).  This vastly disproportionate reaction demonstrated that Mayo could not perform an “essential function” of his job, and was not a “qualified individual.” This is true regardless of whether Mayo’s threats stemmed from his major depressive disorder.

Takeaway:  Employers do not need to tolerate threats of violence in the workplace even if they result from a disability.  As the court explained in Mayo, federal and state anti-discrimination laws do not “require employers to play dice with the lives of their workforce.”

What Employers Need To Know About The Supreme Court’s Abercrombie & Fitch Religious Discrimination Case

In EEOC v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court reversed summary judgment in a case in which Abercrombie & Fitch was accused of religious discrimination due to its refusal to hire a Muslim woman whose headscarf was deemed inconsistent with the store’s “Look Policy.” No. 14–86 (June 1, 2015).

In the case, a woman interviewed for a job at Abercrombie & Fitch while wearing a headscarf. She did not inform the interviewer that she wore the headscarf for religious reasons, nor did she request an accommodation for her religious practices. The interviewer later consulted her supervisor about whether the headscarf would be consistent with the store’s “Look Policy,” which prohibited headwear. The interviewer informed her supervisor that she believed the woman wore the headscarf due to her faith. After the supervisor determined the headscarf would violate the company’s policy, the company decided not to hire the woman.

The Supreme Court held that there was sufficient evidence for a jury to conclude that the store violated Title VII by refusing to hire the woman to avoid accommodating her religious practices. Title VII requires employers to provide reasonable accommodations to an employee’s religious observances or practices unless it would impose an undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j). The Court rejected the employer’s argument that it could not have discriminated against the applicant because it did not know for certain that she wore her headscarf for religious reasons and because she did not affirmatively request an accommodation.

The linchpin in the Court’s reasoning was the distinction between an employer’s “knowledge” and its “motive.” The Court explained that:

An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

The Court further explained that “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

The Court strongly suggested that a plaintiff must prove that the employer at least “suspected” the practice in question was religious. Because there was no dispute that Abercrombie & Fitch suspected the woman’s headscarf was religious, however, the Court did not need to reach the issue of what level of proof was necessary to prove the employer’s suspicion.

Takeaway: Title VII prohibits employers from refusing to hire someone to avoid accommodating a “suspected” religious practice even if the employer does not know for certain that the practice in question is religious.