Articles Posted in ADA

One woman sued after her bosses at the small hotel where she worked allegedly fired her for needing a small oxygen tank.
Another case involves power company workers who were barred from returning to the job after receiving medical treatment for certain conditions.

And yet another involved a man who was denied a job at a fast food chain because he is HIV-positive.

These are all examples of disability discrimination lawsuits that have been recently filed in various across the country.
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The case of Feldman v. Olin, heard recently by the U.S. Court of Appeals for the Seventh Circuit, deals with an issue that almost every employer confronts at some point during the course of business, which is reasonable accommodations that must be made for employees with disabilities. tractortire.jpg

Our Boston employment attorneys have represented clients on both sides of the aisle. On one hand, workers who have a disability must, when possible, be afforded the opportunity to continue to work and be productive members of society. On the other hand, employers sometimes have little flexibility in offering those opportunities, depending on the type of work required.

In this case, the appellate court determined that the district court had erred in finding that the employer, Olin, had complied with the Americans with Disabilities Act. In fact, the appellate court found, the company was liable for damages to the plaintiff, and as such, reversed the earlier verdict and remanded the case back to the lower court to determine appropriate sanctions against Olin.

According to court documents, the plaintiff worked as a tractor operator during the day shift at the manufacturing company. The plaintiff had previously been diagnosed as having sleep apnea and fibromyalgia. The former is a sleep disorder characterized by interruption in sleep patterns caused by abnormal breathing. The latter is a condition in which an individual has pain throughout the body and tenderness in joints, muscles and soft tissues.

As such, doctors had advised the plaintiff to continue working his regular daytime shifts with no overtime. This was not an issue until the company, for various reasons, was required to re-align its workforce. This meant that the plaintiff had to work day, evening and night shifts, as well as overtime. The plaintiff contended he tried to do this for a time, but in the end, found that his medical condition prevented him from continuing this schedule. When he informed Olin of his medical restriction, he was laid off soon thereafter. Olin contended it didn’t place him in another position because none were available.

He was eventually brought back on when another day shift position opened up.

Still, the plaintiff filed suit alleging that the company had violated the Americans With Disabilities Act, 42 U.S.C. 12111. He also alleged that he was retaliated against once he did return to work. He additionally alleged age discrimination, but that was not an issue in the appeal.

The district court had found that the plaintiff had not adequately proven that he was disabled, and summarily dismissed all of his claims. The appellate court reversed this action, finding that the district court rejected the plaintiff’s claims too hastily.

The appellate court cited evidence provided by the plaintiff’s doctor, showing that a sleep study in 2007 determined the employee’s sleep efficiency (or the amount he actually slept during a given night) was at 48 percent, which garners a “very poor” rating.

To succeed with a claim under ADA, the plaintiff has to show that he or she is disabled, that he or she is otherwise qualified to perform essential functions of the job with or without reasonable accommodations and that the employer took adverse job action because of the disability OR failed to provide reasonable accommodation.

The appellate court found that the company failed to, at any point, offer a reasonable accommodation to the employee with regard to his disability.

Further, the company had alleged that the plaintiff had failed to prove his disability, which required him to show that he had an actual disability that significantly limited him in one or more major life activities; that he has a record of such impairment and that the employer knew and had record of that impairment.

The appellate court determined the plaintiff had met that threshold.
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New accessibility rules are taking effect under the Americans with Disabilities Act (“ADA”) and most stores, doctor’s offices, theaters, banks and other public places will be required to comply.

Our Belmont business attorneys advise Massachusetts business and property owners to ensure they are in compliance, and to document compliance as defense against an ADA claim. Those with disabilities have specific rights under the act; filing an American with Disabilities Act claim can improve access and force companies to comply with the law. 806340_high_sign_5.jpg

Enforcement of the widespread changes is scheduled to take effect March 2012.

-1 in 6 parking spaces must be van accessible; the existing requirement is 1 in 8.

-Businesses and property owners must accommodate mobility devices other than wheelchairs.

-All shelves, fire alarms and other reachable objects must be no more than 48 inches high.

-Other guidelines are in place for hotels, theaters, swimming pools and other specialized facilities. The rules actually took effect March 15, 2011 but compliance enforcement won’t begin until March 2012. The rules impact some 7 million public and private places.

Documenting property improvements and compliance is an important step in protecting a business. Nor should a business owner attempt to discern the legal requirements on their own. Getting legal advice on the front end can help ensure your business is appropriately accommodating to those with disabilities, while protecting yourself against a costly lawsuit.

While all new structures must comply — existing structures must comply to the extent that it’s “readily achievable.” The law defines readily achievable as easily accomplished and able to be carried out without much difficulty or expense. Again, seeking legal advice can help ensure you are not going to needless expense while ensuring that your business or properly is not out of compliance with ADA requirements.

Repainting parking spots may be readily achievable. Other compliance issues may be far more complex and expensive. Prioritizing can help businesses achieve compliance to the extent they are required to do so. The list should begin with the first thing visitors encounter when visiting the property, typically the parking lot. Start at the curb and work your way through the building.

The “readily achievable” language could well lead to an increase in lawsuits. Proper documentation will go a long way toward protecting your business in the event ADA compliance is called into question. And the risk of lawsuits could be most acute among small businesses. New construction will be in compliance and large corporations will likely have less trouble getting into compliance.

However, for a small business, the financial outlay required to comply could be crippling. And the expense of an ADA lawsuit could be equally devastating. Seeking qualified legal advice when making compliance decisions can help protect you and your business for years to come.
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Advocates for the deaf have filed a discrimination lawsuit in Massachusetts against Netflix, alleging that the Internet movie company is violating the Americans with Disabilities Act (ADA) by not providing closed captioning, Reuters News Service reported.

Massachusetts general counsel attorneys understand that the employment context is not the only area where a company can run afoul of state and federal discrimination laws. Violations may occur as it relates to customers. In particular, Internet companies in Massachusetts and elsewhere may be particularly susceptible to being targeted by many different types of lawsuits because of the diversity of state laws one must comply with when doing business from coast to coast.
The National Association of the Deaf filed the lawsuit in Massachusetts federal court — claiming Netflix is violating the ADA by not offering equal access to its “watch instantly” videos.

“We have tried for years to persuade Netflix to do the right thing and provide equal access to all content across all platforms. They chose not to serve our community on an equal basis; we must have equal access to the biggest provider of streamed entertainment. As Netflix itself acknowledges, streamed video is the future and we must not be left out,” said NAD President Bobbie Beth Scoggins.

There are an estimated 36 million Americans who are deaf or hard of hearing. Other parties to the lawsuit include the Western Massachusetts Association of the Deaf and Hearing-Impaired (WMAD/HI) and a deaf Massachusetts resident. “While streaming (video) provides more access to entertainment to the general public, it threatens to be yet another barrier to people who are deaf and hard of hearing,” the lawsuit said.

A similar lawsuit has also been filed against Time Warner. Both suits seek to force the companies to provide captioning for all online streaming video. The suit claims Netflix does so for less than 5 percent of its videos. For its part, Netflix said it is aware of the issue but has had technical difficulties in providing closed captioning for online videos.

The Americans with Disabilities Act requires that places of entertainment provide “full and equal enjoyment” for people with disabilities.

The case is NAD et al v. Netflix. It says, with over 60 percent of the market, Netflix is the industry leader in streamed movies and television shows and has an obligation to provide for the deaf. The videos can be played online or on television through a compatible device, including PlayStation 3, Wii and Xbox 360 game system. Without access to closed captions, the deaf do not have the same access to enjoy the programs as those who are not hearing impaired, according to the lawsuit.

The Time Warner lawsuit was filed by the Greater Los Angeles Agency of Deafness and several local residents. It claims the company has refused to caption videos on Continue reading

An employee who suffered sporadic muscle flare-ups can sue his employer for disability discrimination where the business failed to accommodate his occasional problem, a federal appeals court recently ruled.
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The worker, a parts manager at an AutoZone store, had a condition that caused intermittent tightening in his back muscles. When the condition flared up, he couldn’t perform specific tasks.

The company fired him after keeping him on involuntary medical leave for more than a year.

The worker sued under the Americans with Disabilities Act (ADA). In response, AutoZone argued that he wasn’t “disabled” because his condition only occasionally limited him in his ability to perform major life activities.

The 7th Circuit Federal Court of Appeals, however, disagreed, and said a “predictable yet intermittent pattern” of muscle problems could amount to a disability under the ADA.

The ADA defines “disability” as (a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. See 42 U.S.C. § 12102(2) (2006). The EEOC relied on subsection (a), a physical impairment that substantially limits a major life activity, to argue that the employee was disabled from March 2003 to September 12, 2003, because his condition substantially limited his ability to engage in the major life activity of caring for himself.
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