Posts Tagged ‘ADA’
Disneyland is facing a lawsuit for violating the Americans with Disabilities Act due to a mishap on the ‘It’s a Small World’ ride.
The lawsuit was filed by a quadriplegic man that said he was stranded by Disneyland employees for 40 minutes after the ride broke down. Jose Martinez said that both he and his wife were left on the ride whilst all the other passengers had been evacuated.
During the ordeal Martinez suffered dysreflexia, which is a condition that affects the nervous system as a result of overstimulation. In severe cases it can cause stroke or even death. He said that despite his requests for medical attention, he received none and employees didn’t help to get him off of the ride.
So today’s posting does not directly address employment issues but it does address issues under Florida Statutes, the Fair Housing Act and the Americans with Disabilities Act. The issue today relates to disabled persons use of service dogs.
It has come to my attention that in many states, condo associations are giving hard times to disabled persons who have service dogs, especially where the association has no pet rules. Florida Statutes 413.08. Under the Florida Statutes, at subsection (2) An individual with a disability is entitled to full and equal accommodations, advantages, facilities, and privileges in all public accommodations. Moreover, under subsection (3) An individual with a disability has the right to be accompanied by a service animal in all areas of a public accommodation that the public or customers are normally permitted to occupy. It is interesting to note also that the statute mandates that an association may not charge a surcharge or pet deposit for a service dog even if normally charged for a pet.
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So there has been quite a bit of publicity in the news about the repeal of “don’t ask, don’t tell”, but many may be surprised to know that there are still few protections in the workplace against sexual orientation discrimination.
Sexual orientation discrimination includes being treated differently or harassed because of your real or perceived sexual orientation — whether gay, lesbian, bisexual, or heterosexual.
Federal Law
Although federal laws, such as Title VII and the ADA protect people from workplace discrimination on the basis of race, national origin, religion, sex, age, and disability, there is no federal law that specifically outlaws workplace discrimination on the basis of sexual orientation in the private sector. (Federal government workers are protected from such discrimination.) Attempts to pass federal legislation that would outlaw sexual orientation discrimination in private workplaces have been unsuccessful to date.
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I have blogged on many occasions about the Americans with Disabilities Act or ADA. This statute and the amendments to it prevent an employer from discriminating against an employee due to an actual or perceived disability. This act not only includes termination or demotions, but also requires that an employer provide accommodations to those with qualified disabilities. For many years, the scope of this act was severely limited due to several rulings of the U.S. Supreme Court, but due to recent amendents by Congress, the scope of this act has now been expanded to include many different kinds of disabilities.
It seems the most recent disability that will now be covered under the ADA is obesity. The EEOC has recently filed suit against Resources for Human Development (RHD), a national non-profit human services organization, claiming it fired a child-care worker because she was obese. The agency claims the firing violated the Americans with Disabilities Act.
The case involves Lisa Harrison, who worked with young children of mothers undergoing treatment for addiction in an RHD-run facility in suburban New Orleans.
The EEOC alleges that Harrison was fired because RHD perceived Harrison as being substantially limited in a number of major life activities, including walking, because of her weight, the EEOC claims. But the agency says Harrison was able to perform all of the essential functions of her position. Before the EEOC filed suit, Harrison died. Her private interests will be represented in the lawsuit by her estate.
Up to this point, many courts have ruled that obesity does not fall into the category of disability under the ADA.
But with the passage of the ADA Amendments Act, the definition of disability was substantially widened.
The lawsuit is EEOC v. Resources for Human Development, U.S. Dist. Crt., E.D. LA, No. 2:10-cv-03322.
If you believe you have been the victim of workplace discrimination due to obesity or the perception that you are obese, you should contact an employment lawyer to discuss your possible legal options.
As you may recall, I have blogged before about the Americans with Disabilities Act. Typically, not only does the act prohibit discrimination against employee with disabilities, but also requires that certain accommodations be made to those with disabilities in restaurants, buildings, etc.
Well now as of yesterday, the U.S. Department of Transportation has set out Federal regulations for persons with disabilities traveling on boats and ships.
The rule applies to vessels operated by public entities, such as public ferry systems, and vessels operated by private entities, such as cruise ships, a release said.
The rule prohibits vessel operators from charging extra for accessibility-related services, requiring passengers to furnish their own attendants or denying passengers access based on disability.
Vessel operators will be required to provide information about the accessibility of their facilities and services and make someone available to address accessibility concerns, the release said.
The rule will ensure fair treatment for people with disabilities who travel by ship or boat, U.S. Secretary of Transportation Ray LaHood said in the release.
U.S. Department of Justice regulations cover vessels operated by private entities not primarily engaged in the business of transporting people, such as fishing charters and dinner cruise boats.
Have not yet been able to find the content of these new regulations online, but will be interested to see what they say. I don’t expect the cruise ship lines to just take this without legal challenge. See, the cruise ship companies such as Carnival have for years been able to get around complying with U.S. Federal laws because each of their ships are flagged in Panama and the Bahamas which means by international law, the laws of those countries apply on their ships, not those of the United States. So it will be interesting to see how the Federal government will require compliance by foreign flagged vessels, but I will keep you posted on further developments on this issue.
There has an increase in weight discrimination charges under the Americans with Disabilities Act (ADA) and I think potentially there could be claims for weight discrimination under GINA which pertains to genetic discrimination (take a look at my post several weeks ago on that law). Frankly, I think that people with severe obesity problems would have a good chance of claiming this type of discrimination. But now a 132 pound Hooters waitress in Michigan, Cassie Smith, has claimed weight discrimination.
Hooters had just given Smith a glowing, two year review.
“I had excellence in… dealing with customer complaints and customer satisfaction,” she said.
However, her bosses and two women on a conference call from the company’s headquarters in Atlanta changed their tune when it came to her uniform evaluation.
“We have that your shorts and shirt size could use some improvement,” said Smith.
Cassie, who is almost five foot, eight inches tall and weighs 132 pounds, claims she sat there while she was told that if she wanted to keep her job, she needed to drop some weight.
“These women proceeded to explain to me that I had 30 days and they would give me a free gym membership, and if I didn’t improve within those 30 days I would be separated from the company,” she said. “If I improved a little bit I would get 30 more days, and if I improved completely they would leave me alone.”
Cassie does not have a problem squeezing into her skimpy uniform, which is an extra small tank top and shorts. In fact, she says when she started this job two years ago, she weighed about ten pounds heavier than she does now.
For Cassie, the damage has already by done. She feels she is a victim of weight discrimination by a corporation with unrealistic expectations.
“I don’t want other girls to have to go through this. I don’t want anyone to have to go through this,” she said. “If I could’ve gone back and not worked there for two years to take back that feeling, I would do it.”
Hooters argues that this was not weight discrimination because it is similar to the standards used by the Dallas Cowboys cheerleaders or the Radio City Music Hall Rockettes. In other words, Hooters is claiming that they have a legitimate business reason for this policy. I guess it remains to be seen whether their policy will hold up with the courts.
What do you all think?
While the American With Disabilities Act (ADA) has several components, the portion I am going to talk about right now is Title I which pertains to discrimination in employment practices where the employer has more than 15 employees. Many state and local anti-discrimination statutes provide the same relief as under the ADA for employers with less than 15 employees.
The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
Employment discrimination is prohibited against “qualified individuals with disabilities.” This includes applicants for employment and employees. An individual is considered to have a “disability” if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.
A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the oeessential functionsî of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation.
Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.
Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, there is no obligation to find a position for an applicant who is not qualified for the position sought. Employers are not required to lower quality or quantity standards as an accommodation; nor are they obligated to provide personal use items such as glasses or hearing aids.
The decision as to the appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of reasonable accommodation to provide, the principal test is that o effectiveness, i.e., whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.
An employer is only required to accommodate a “known” disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual’s known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one.
Until 2008, the effect of the ADA had been gutted by decisions of the U.S. Supreme Court that made it virtually impossible for an employee to have a disability that qualified under the ADA. However, in 2008, Congress passed the ADA Amendments Act of 2008 to remedy the rulings of the U.S. Supreme Court.
The Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.
If you believe you are being discriminated against by your employer file a written complaint with your human resources person and ask for an accommodation. If that does not work, you may want to file a complaint with the EEOC or go to an employment lawyer.
In some instances, an employee may have a drug or alcohol addiction. The question is whether or not these drug and alcohol addictions are protected disabilities under the ADA.
The answer is alcoholics are protected under the ADA and persons who have used illegal drugs are also protected to the extent that they are no longer using illegal drugs and are in treatment for the addiction or have completed an addiction program.
Those addicted to drugs or alcohol are excluded from ADA protection if their condition poses a direct threat of harm to others or (arguably) themselves. As with all ADA claims, the addicted person must be otherwise qualified to complete the necessary tasks, with or without accommodations, and the accommodations must not cause “undue hardship” to the employer.
A drug or alcohol addict is then entitled to accomodation from their employer under the ADA. Such accomodations could include leave time to attend counseling or AA meetings.
Some other examples of accommodations include:
1. Modified work schedule to allow for daily methadone pickup
2. “Job restructuring to relieve an employee of particular marginal tasks that may compromise recovery”
3. “Temporary reassignment of an employee in a safety-related position to a vacant non–safety-sensi- tive position while he or she completes treatment.”
Although some addicted people are covered under the ADA . For example, although the ADA covers persons who have completed a supervised drug rehabilitation program or otherwise have been successfully rehabilitated, the ADA denies coverage of “any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” In contrast, “otherwise qualified” persons addicted to alcohol are covered under the ADA unless they pose a direct threat to others or break specific workplace rules against the use of alcohol.
These issues are frequently litigated and have been addressed by many court cases. They can be fact intensive and should be evaluated by each employee with a qualified labor and employment law attorney.