This paper was part of a directed reading assignment for California State University Dominguez Hills, with Dr. Jarrett.
It is vital for Conflict Resolution Practitioners (CRP) to remain up to date on disability anti-discrimination legislation, laws, and case law to guide them in their dispute resolution processes. Anti-disability discrimination is required knowledge by different agencies that manage this arena. Because of these requirements, this paper will give an update on the recent federal court ADA Title I and Title III rulings. It will then summarize the possible impact of these decisions in the anti-disability discrimination field.
ADA Use and Requirements of Alternative Dispute Resolution
The U.S. Department of Justice (DOJ), the Equal Employment Opportunity Commission (EEOC), and the American with Disabilities Act (ADA) all encourage the use of alternative dispute resolution (ADR) as a primary means of solving the conflict between individuals and organizations (Goren, 2014). The DOJ has general rules that require the use of alternative dispute tools (ADA.gov, n.d.). The ADA and EEOC also openly encourage the use of ADR (PACER.Org, n.d.).
There are several agreed-upon requirements for successful CR Practitioners. The requirements are the extensive knowledge of ADA and disability anti-discrimination laws and case law, training and experience in the field of anti-disability discrimination and familiarity of reasonable modifications and accommodations required by law and used by employers, organizations, businesses and government agencies (PACER.Org, n.d.)(ADA Mediations Standards Work Group).
RECENT ADA CASE AND RULINGS REVIEW FOR ADA TITLE I
The following sections will briefly review Federal Court decisions and cases that are important to take note of for ADA law and practices.
Does reassignment as an accommodation include competition?
The ADA requires reassignment of a position as a reasonable accommodation. The question courts have been considering is if a disabled employee automatically receives a new post if qualified, if a more qualified non-disabled employee applied. The ADA statute uses the word “may” in referring to reassignment as a reasonable accommodation that has led to several conflicting decisions in courts across the United States (Loguidice, 2019). The EEOC dictates that reassignment is required if a disabled employee is qualified (Loguidice, 2019). In Lincoln v. BNSF the tenth circuit decided that a disabled employee should be given a vacant position, if qualified, in most situations (Roth, 2019).
In the most recent decision, the Supreme Court of appeals in Atlanta ruled that the ADA “does not automatically mandate reassignment without competition” in EEOC v. St. Joseph’s Hospital Inc. (Greenwald, 2017). This decision built upon the U.S. Supreme Court case that a disabled qualified employee does not have to be a preferred hire outside an existing seniority promotion system. In U.S. Airways V. Barnett, the court ruled that established seniority systems do not have to be pushed aside in favor of a disabled employee. The court left some leeway to point out that a seniority system does not “always trump” a requested ADA accommodation (Linda, 2002). However, this decision was made before ADAAA passed in 2008, which brought the question back to the federal court system.
Essential Job Functions & Reasonable Accommodations
Is a full-time job coach a reasonable accommodation?
A recent question is if the use of a job coach is considered a reasonable accommodation if required on a permanent basis. The most recent case deciding this question was handled in the seventh circuit of appeals. Walmart let go of a long-time disabled employee, arguing that he was unable to perform essential job functions without a job coach and that a full-time job coach was an unreasonable accommodation. They claimed this because other federal districts ruled in the past that a permanent job aid was not a reasonable accommodation and created an undue hardship (Harman Firm, 2019).
The District court ruled that a full-time job coach is a reasonable accommodation and does not create an undue hardship. Employers must take the time to consider the amount of assistance needed, and at minimum, employers must engage in a thorough determining process if such an accommodation is requested (EEOC v. Walmart, 2019) (Lewis, n.d.). In addition, the judge felt that prior decisions on this question were not based on the specific question and did not lend a ruling that meant a full-time job coach was “never” a reasonable accommodation especially if the job coach was not physically performing essential job duties (EEOC v. Walmart, 2019).
Is a full-time presence at work an essential job function?
The 6th circuit recently ruled that a full-time presence at work is not an essential job function. In Hostettler v. College of Wooster, the courts decided a case where a woman returned to her job after maternity leave with a requested reduced schedule due to postpartum and separation anxiety. The college temporarily granted this request, but Hostettler was fired for not returning to a full-time schedule (Bugbee & Conkle, 2018).
The judge rejected the idea that working full time is an essential job function. Arguing that if employers were allowed to refuse reduced or modified schedules, that would further disability discrimination for countless employees who needed to attend medical appointments and treatments (Hostettler v. College of Wooster, 2018). In addition, the courts determined that essential job functions must be determined by other methods such as the amount of time an employee spends to complete a task if that task is required to be completed at the job site (Rhodes, 2018). The facts of evidence of essential job requirements, other than required fulltime hours, should be considered by a jury (Rhodes, 2018).
ADA Disability Qualified
If an employee was disabled was a common court argued ADA question before the passing of the American Disabilities Act Amendments Act (ADAAA) in 2008. This act settled the matter by emphasizing that a person is to be considered disabled if they have an impairment, either physical or mental, that substantially limits one or more major life activities (ADA National Network, 2013). Interpretations of disability are required to be considered broadly, and specific guidance on this is located on the ADA National Network website under Questions & Answers (ADA National Network, 2013).
While the number of cases under this question has dropped since the ADAAA passage, there have been some recent questions brought up in Federal Court.
Is the inability to work overtime a qualifying disability?
A Summary Judgment was granted in favor of liberty mutual in that the Plaintiff does not have a qualifying disability. Liberty Mutual argued that the Plaintiff was able to work a 40-hour week, and that provided medical documentation stated she was unable to work overtime (Northwest ADA Center, 2019). The Court referenced past rulings that concluded that if an employee can perform all job functions in a 40-hour workweek, than the inability to work overtime does not meet the ADA requirement of ‘substantially’ limiting impairment (Hoppman V. Liberty Mutual, 2019).
If an ailment presents at different levels, is an employee disabled?
A Blue Mountain employee filed an ADA claim that the company failed to accommodate his disability reasonably. Blue Mountain successfully argued in a federal court that the employee was not disabled (Creighton & Meneghello, 2018). The court agreed that there was no evidence of physical impairment that limited a major life activity because his diagnosis of COPD presents at different levels (Jackson v. Blue Mountain Prod. Co., 2019). However, the court of appeals overturned that finding in a summary judgment concluding that a ‘reasonable jury’ would find that Jackson is disabled under the ADA (Jackson v. Blue Mountain Prod. Co., 2019).
Hostile Work Environment
Can an ADA lawsuit claim a hostile work environment?
Joining four other federal circuits, the Second Circuit recognized that the ADA could address hostile work environment claims. A judgment against Costco Wholesale virtually ‘eliminated any uncertainty’ of hostile work environment claims under the ADA (O’Connell, 2019) (NWADA, 2019). The court concluded that a hostile work environment exists in an environment that is ‘subjectively and objectivity’ abusive (O’Connell, 2019).
Can Service Animals be utilized at work?
ADA law does not address service animals and the rights of the individuals with a disability places covered by ADA law. The Department of Justice and The Department of Transportation do have service animal rights and guidelines in some situations (Brown, 2019). There have been legal issues addressed in Federal Courts.
In 2015 a Federal Court decided that a service dog could be utilized to help perform essential job functions and ‘enjoy equal benefits and privileges of employment’ (Juan Alonzo-Miranda v. Schlumberger, 2015). Alonza-Miranda requested to bring his trained service dog to work and was denied, so he filed a suit. He claimed that his reasonable accommodation request was delayed by months, and then the animal movements were restricted when it was approved (Brown, 2019)(Juan Alonzo-Miranda v. Schlumberger, 2015).
In Arndt v. Ford, a veteran with PTSD and TBI wanted to utilize his service dog at work and claimed he was denied his reasonable accommodation (Brown, 2019). The court ruled that Arndt did not engage in an interactive process with his employer to create a reasonable accommodation (Arndt v. Ford, 2017).
In Clark v. Sch. Dist. Five of Lexington a schoolteacher, brought a suit against her employer for not allowing the use of a service dog as a reasonable accommodation (Brown, 2019). The federal court ruled that the dog was not needed for her to perform her essential job functions, and therefore the accommodation was not required (Clark v. Sch. Dist. Five of Lexington, 2017). However, the ruling left a question if an employee could bring an emotional support animal to work as a reasonable accommodation because the term ‘service dog’ is not defined under Title 1 ADA law (Brown, 2019).
RECENT TITLE III RULINGS AND CASES
There has been a substantial increase in Title III cases in the last few years, with the numbers continuing to rise yearly (Shaw, 2019). The most common cases are the accessibility of physical facilities and websites (Shaw, 2019). An important issue for the courts to settle is in electronic accessibility which companies have been using a common defense against. In Robles v. Dominos the 9th Circuit ruled that websites are part of a company’s services and therefore a place of public accommodation. It also rejected the idea that the suit against ADA went against due process complaints because the issue was about ADA accessibility and not if a set of standards had been adhered to or not (Overdorff, 2019).
Websites and Applications
Title III requires that private sector businesses with at least 15 employees should remove barriers to disabled individuals so they can access goods and services (Brown & Quackenboss, 2019). The current law does not state if ‘access’ should include electronic access such as mobile applications and websites, and as usual federal courts are divided on the issue (Brown & Quackenboss, 2019).
Three district courts have ruled that public accommodations are not limited to physical spaces, and four other circuit courts have ruled the opposite (Brown & Quackenboss, 2019). Congress has yet to amend the act based on website accessibility requirements, and the Supreme Court does not appear to have plans to take up this question because they recently rejected reviewing a Robles v. Dominos. Their decision has let the recent 9th circuit ruling that the ADA did apply to website and mobile even if specific guidelines and rules do not exist (Johnson, 2019) (Robles v. Dominos, 2019).
A Common Defense
The Dominos decision and Supreme Court rejection will have a significant impact on future cases because it rejected the common argument used by companies against accessibility complaints (Capara, 2019) (Overdorff, 2019).A common defense in accessibility cases is that businesses should not have to conform to specific standards in the absence of the Department of Justice guidelines, and this is a violation of their due process rights (Caprara, 2019). It concluded that being able to assess what is ‘fair and reasonable’ is not hard to determine and that notice of the need to accommodate occurred (Overdorff, 2019)(Robles v. Dominos, 2019).
Accommodations and Essential Job functions
The critical unifying point in the two recent cases deciding the question of reassignment of a qualified employee as a reasonable accommodation is both decisions do not demand the answer of yes or no in every employer decision. In EEOC v. St. Joseph’s Hospital Inc. ruling the judge discusses that special circumstances should be considered as a factor for this request. A company must be able to show that this step was completed (EEOC v. St. Joseph, 2016). In Lincoln v. BNSF the judge concluded the same. That the decision to hire the more qualified non-disabled
employee over a reasonable accommodation request must be processed carefully by
the employer, and special circumstances must be considered in this decision process (Lincoln v. BSNF,2018).
The 7th circuit decision that a full-time job coach can be a reasonable accommodation was based on the reasoning that an employer does not have "unfettered discretion" to decide what a reasonable accommodation is (EEOC v. Walmart, 2019). The burden is on employers to consider a variety of methods and changes to practices to accommodate a disabled employee and make a good faith effort to do so (EEOC v. Walmart, 2019). The judge, in this case, found that Walmart had failed to make this effort.
In Hostettler v. College of Wooster, the judge ruled that working full time cannot be considered an essential job function, cautioning the consequences of allowing that requirement on all disabled employees (Hostettler v. College of Wooster, 2018). The court reasoned that a job function is essential is a “highly specific” fact, and all evidence about this reasoning must be reviewed and considered by an employer and, if necessary, a court and jury (Chichester & Giffen, 2018). A detailed employer analysis is required for disability accommodation requests and if the function of a job is ‘essential’ (Chichester & Giffen, 2018).
The conclusion to these questions and court answers share a cautionary theme in that an employer must always engage in 'good faith' effort to consider all special circumstances when a reasonable accommodation request is made. An employer also must be ready to demonstrate that these actions had been undertaken. The burden of proof that this process was completed is on the employer.
ADA and Qualified as Disabled
ADA law demands a broad interpretation of what is considered a disability. It is advisable for employers to always err on the side of caution when attempting to argue that an employee is not disabled (Creighton, 2018). The one most recent court ruling did conclude that if a person can work a 40-hour workweek without the need for accommodations, then that alone can not be used as a consideration of disability.
Hostile Work Environment
The question if a hostile workplace can exist in an ADA suit was settled, and employers should be careful to observe and consider the impact of the harm caused to a disabled employee in that type of environment.
Service Animals as a Reasonable Accommodation
Courts concluded and agreed that the use of a service animal could be a reasonable accommodation. Still, the courts deferred on if the specific accommodation is suitable for a particular employee considering that particular situation. In all instances, the use of an interactive and cooperative process to decide this question is necessary. If the question is brought to court, then the employer's decision the will be reviewed by a judge and possibly a jury (Arndt v. Ford, 2017) (Juan Alonzo-Miranda v. Schlumberger, 2015) (Clark v. Sch. Dist. Five of Lexington, 2017).
RECENT TITLE III RULINGS AND CASES
The number of ADA Title III cases has continued to rise each year, and the trend does not appear as if it will stop any time soon (Shaw, 2019). A popular subject in the courts the last several years center on electronic accessibility. Unfortunately, several District Courts have given contrary opinions on this dispute, and the Supreme Court turned down the chance to finally settle the question once and for all (Brown & Quackenboss, 2019).
Unless Congress decides to pass legislation addressing this matter, it would be advisable for organizations to be proactive in addressing this issue and take note of the 9th Circuit Court Ruling, which concluded three things. First, the ADA does apply to websites and applications. Second, that asking for electronic accessibility without specific government guidelines is a reasonable request and expectation, and third, that the lack of particular guidelines for compliance standards does not excuse a company from legal ADA obligations (Robles v. Dominos, 2019).
In addition to these recent rulings, advocates in the disability community and legal advisors emphasize that making websites and applications accessible does not have to be expensive or burdensome and that this can be more cost-efficient than fighting a lawsuit (EOWG, 2018).
The unifying themes the cases reviewed in this paper contain the following points. First, employers and employees must engage in a thorough and cooperative process in any accommodation request and be ready to demonstrate that they did so. Second, in most cases, courts will decide in favor of an individual claiming a disability. Third, essential job functions, in conjunction with accessible accommodation requests, must be considered carefully and in detail by an employer. Finally, businesses and organizations should be accessible on a physical and technological level.
Conflict Practitioners must understand the trend in Federal court rulings, and the specific patterns of court leanings in their jurisdictions of practice. Knowledge of federal legislation and law in disability discrimination is just as necessary as local knowledge. Both should be consistently reviewed and studied before a CRP participates in an ADA dispute. These knowledge attainment steps are not only necessary for CRP but they are required by government agencies using ADR.
ADA.Gov. (n.d.). Department of Justice ADA responsibilities: ADA mediation program.
ADA.gov. (n.d.) Department of justice ADA responsibilities: ADA enforcement
ADA Mediation Standards Work Group. (n.d.). ADA mediation guidelines. Mediate.com.
Retrieved from https://www.mediate.com/articles/adaltr.cfm
ADA National Network. (2013). The Americans with disabilities act: questions and answers.
Retrieved from https://www.ok.gov/odc/documents/ADANN_FAQbooklet_final.pdf
Alonzo-Miranda v. Schlumberger Tech. Corp., No. 5:13-CV-1057, 2015 WL 3651830, at *3 (W.D. Tex. June 11, 2015)
Arndt v. Ford Motor Co., 716 F. App'x 519, 521 (6th Cir. 2017)
Brown, S. E. (2019). ADA knowledge translation center legal brief No. 2.1. ADA National Network. Retrieved from https://adata.org/legal_brief/legal-brief-service-animals-and-individuals-disabilities-under-americans-disabilities
Brown, J.P., Quackenboss, R.T.(2019, January 3). The muddy waters of ADA website compliance may become less murky in 2019. Retrieved from
Bugbee., Conkle. (2018, September). Legislative Update. Northwest Ohio Human Resource Association.
Retrieved from http://toledoshrm.org/resources/documents/Sept2018LegislativeUpdate.pdf
Caprara, M. (2019, August 19). The Domino effect. The Viscardi Center.
Retrieved from https://www.viscardicenter.org/the-domino-effect/
Clark v. Sch. Dist. Five of Lexington & Richland Ctys., 247 F. Supp. 3d 734, 739 (D.S.C. 2017)
Equal Employment Opportunity Comm'n v. Wal-Mart Stores, Inc., 345 F. Supp. 3d 1046, 1063 (W.D. Wis. 2018), reconsideration denied, No. 17-CV-739-JDP, 2019 WL 1199396 (W.D. Wis. Mar. 14, 2019)
Creighton, M. (2018). Flurry of recent ADA cases can be instructive for employers. Mondaq
Business Briefing, p. Mondaq Business Briefing, July 13, 2018.
Diament, M. (2019, October 15). Walmart faulted in ADA discrimination case. Disability Scoop.
Retrieved from https://www.disabilityscoop.com/2019/10/15/walmart-faulted-ada-discrimination-case/27308/
Disability Rights Education & Defense Fund. (n.d.) A comparison of ADA, IDEA, and Section 504 DREDF.Com. Retrieved from https://dredf.org/legal-advocacy/laws/a-comparison-of-ada-idea-and-section-504/
Equal Employment Opportunity Comm'n v. Wal-Mart Stores, Inc., 345 F. Supp. 3d 1046 (W.D. Wis. 2018), reconsideration denied, No. 17-CV-739-JDP, 2019 WL 1199396 (W.D. Wis. Mar. 14, 2019)
Lewis, J. (n.d.) FMLA and the ADA-new workplace standards. AWSA.
Retrieved from https://awsa.memberclicks.net/update-article–fmla-and-the-ada—new-workplace-standards
Fabian, R. (2019). Jury awards $5.2 million to disabled employee in discrimination lawsuit against Walmart. The Mighty.
Retrieved from https://themighty.com/2019/10/jury-awards-disabled-employee-walmart-discrimination-lawsuit/
Goren, G.D. (2014). ADA and mediation/arbitration: things to think about.
Retrieved from http://www.williamgoren.com/blog/2014/01/06/ada-mediation-arbitration/
Greenhouse, Linda. "Seniority upheld against disability rights." New York Times, 30 Apr. 2002, A2. Gale Academic OneFile, https://link-gale-com.libproxy.csudh.edu/apps/doc/A85273607/AONE?u=csudh&sid=AONE&xid=0a8d53f5. Accessed 3 Mar. 2020.
Greenwald, J. (2017). Ruling may send ADA fight to supreme court. Business Insurance.com.
Retrieved from https://www.businessinsurance.com/article/20170206/NEWS06/912311750/Disabled-employees-reassignment-ruling-ADA-fight-US-Supreme-Court-
Harman Firm. (2019, January 23). Walmart disabled cart pusher’s ADA claims survived summary judgement. New York Employment Attorneys Blog. Retrieved from https://www.theharmanfirm.com/blog/wal-mart-disabled-cart-pushers-ada-claims-survived-summary-judgment/
Hoppman v. Liberty Mut. Ins. Co., 774 F. App'x 418, 419 (9th Cir. 2019)
Hostettler v. College of Wooster, 6th Cir., No. 17-3406 (July 17, 2018).
Jackson v. Blue Mountain Prod. Co., 761 F. App'x 356 (5th Cir. 2019)
JDSUPRA (2020, 24 January). EEOC release fiscal year 2019 enforcement and litigation data.
Retrieved from https://www.jdsupra.com/legalnews/eeoc-releases-fiscal-year-2019-38686/
Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1206 (10th Cir. 2018)
Loguidice, Christina M. (2019). Mandatory reassignment as a reasonable accommodation under the Americans with Disabilities Act turns "Nondiscrimination into Discrimination.". Brooklyn Law Review, 84(3), 1084.
Northwest ADA Center. (2019, March 27). ADA in the news March 27, 2019.
Retrieved from http://nwadacenter.org/news/ada-news-march-27-2019
Overdorff, N. (2019). No published guidelines doesn’t mean no standards. Equidox.
Retrieved from https://equidox.co/blog/robles-v-dominos-pizza-explained-no-published-guidelines-doesnt-mean-no-standards/
PACER.ORG(n.d.) ADA Q&A: filing a complaint.
Retrieved from https://www.pacer.org/transition/learning-center/laws/ada/filing-a-complaint.asp
Rhodes, J. (2018). Full-time attendance is not necessarily an essential job function. HRNews,
Retrieved from http://libproxy.csudh.edu/login?url=https://search-proquest-com.libproxy.csudh.edu/docview/2108848277?accountid=10347
Robles v. Domino's Pizza, LLC, 913 F.3d 898, 906 (9th Cir.), cert. denied, 140 S. Ct. 122, 205 L.Ed. 2d 41 (2019)
Roth, J.A.(2019). Unsettled waters at the accommodation of last resort.
Retrieved from https://www.disabilityleavelaw.com/2019/02/articles/uncategorized/unsettled-waters-at-the-accommodation-of-last-resort/
Shaw, S. (2019, July 26). Federal ADA title III lawsuit numbers continue to climb in 2019.
Seyfarth. Retrieved from https://www.adatitleiii.com/2019/07/federal-ada-title-iii-lawsuit-numbers-continue-to-climb-in-2019/
The United States Department of Justice. (n.d.). Disability rights section.
Retrieved from https://www.justice.gov/crt/disability-rights-section
Tyko, K. (2019). Victory for disability advocates: Supreme Court won’t hear Domino’s Pizza accessibility case. USA Today.
Retrieved from https://www.usatoday.com/story/money/2019/10/07/dominos-pizza-website-accessibility-supreme-court-wont-hear-case/3904582002/
United States Equal Employment Opportunity Comm'n v. St. Joseph's Hosp., Inc., 842 F.3d 1333, 1347 (11th Cir. 2016)