DOJ and City of Jackson, MS Extend Agreement to Resolve ADA Lawsuit with the City's Public Transportation System

The Justice Department filed a joint motion to extend a settlement under the Americans with Disabilities Act (ADA) with the city of Jackson, Mississippi. The original lawsuit challenged inaccessibility in Jackson’s public transportation system, and was filed by 11 residents of Jackson with disabilities and two non-profit organizations that work on behalf of people with disabilities.

The Department of Justice has monitored the city under the terms of the five-year consent decree, filed in federal court in Jackson in March 2010. That agreement required the city to keep the wheelchair lifts working on the city’s fixed route bus system, known as JATRAN; train staff to properly help riders with disabilities; and meet its required level of service to passengers of Handilift, the ADA complementary paratransit service.

The parties agree that while the city has improved its accessible bus services, the city has not yet fully complied with the consent decree. Therefore, the city will continue to make improvements and will report progress to the department on a monthly basis.

"Today’s action by the parties shows our vigilant commitment to remain engaged with the city of Jackson until the city has fixed any problems with the level of accessible public transportation provided to it its citizens," said Acting Assistant Attorney General Vanita Gupta of the Civil Rights Division. "The department is grateful for the city of Jackson’s continued cooperation in resolving this matter and their commitment to reaching full accessibility of JATRAN."

“We remain committed to the rights of all citizens to have accessible transportation services in the Capital City of Jackson,” said U. S. Attorney Gregory K. Davis of the Southern District of Mississippi. “The U.S. Attorney’s Office is also grateful for the cooperative relationship between the city of Jackson and the Department of Justice in working towards fulfilment of the terms of the consent decree.”

Source: DOJ

This information is intended to be educational and should not be considered legal advice on any specific matter.

Nursing Home Rescinded Offer to Hire Qualified Applicant

A Mendham, N.J., nursing home will pay $75,000 and furnish significant equitable relief to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. The EEOC had charged Holly Manor Center Nursing Home with unlawfully rescinding a job offer to an applicant because he is deaf.

According to the EEOC's suit (EEOC v. Genesis HealthCare, LLC, et al, Civil Action No. 2:14-cv-00316), Stefan Denisiuk, who is deaf, interviewed at Holly Manor for an available dietary aide/assistant cook position, and was told after the interview that he was hired. But a few weeks later, Holly Manor required Denisiuk to undergo a second interview with different managers, who grilled him about his ability to communicate, and ultimately rejected his application because of his hearing impairment.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from refusing to hire a qualified individual because he or she is disabled. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, approved by U.S. District Judge Jose L. Linares, in addition to the monetary relief for Denisiuk, Holly Manor agreed to change its job descriptions for the positions at issue to ensure that applicants with hearing disabilities will be fully considered for job openings so long as they are qualified. The company also will provide training on the ADA to its managers and human resources personnel.

"This case sends a message that is at the heart of the ADA: job applicants with disabilities should be judged on their ability to do the job and should not be rejected based on preconceived, unfounded notions about their limitations," said Robert D. Rose, regional attorney of the EEOC's New York District Office.

Jeffrey Burstein, supervisory trial attorney in the EEOC's Newark Area Office, added, "We are pleased that Holly Manor worked with us to resolve this matter at an early stage of the litigation, committing to prevent disability discrimination in its hiring decisions in the future and agreeing to compensate Mr. Denisiuk for the injustice he suffered."

Holly Manor Center Nursing Home is part of Genesis HealthCare, LLC, a nationwide health care provider.

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

ADA reassignments to Vacant Positions

Source: Stohler Law

The EEOC and 7th Circuit have changed the rule on accommodations to mandate that employers reassign employees with disabilities to vacant positions if they can no longer perform the essential functions of their jobs. The Court’s decision in EEOC v. United Airlines will require employers to assess how they handle employees with disabilities and address the accommodation policies in their handbooks.
 
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This information is intended to be educational and should not be considered legal advice on any specific matter.

Proposed Reasonable Accommodation Procedure Requirements

The Notice of Proposed Rulemaking (NPRM) to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, require the development and implementation of written procedures for processing requests for reasonable accommodation. While it is true that procedures may vary due to the size, structure, and resources of a company, there are specific elements put forth in the proposed regulations that must be included in all procedures:

1. Contact information for responsible official - This official may be the same official responsible for the implementation of the contractor's affirmative action program, and must have the authority, resources, support, and access to top management necessary to effectively implement the reasonable accommodation procedures.
2. Reasonable accommodation requests -
   • How - Clarification that reasonable accommodation requests may be made verbally or in writing, with no required verbiage, by an applicant, employee or third party;
   • When - Stipulation that a request may be made at any time and does not have to be repeatedly submitted for a recurring need (i.e. Sign Language Interpreter);
   • Who - Identification of whom a request should be submitted to: At a minimum, this should include someone in the employees chain of command AND the named official responsible for implementation, and;
   • Applicant notification - Process by which applicants will be notified of the company's reasonable accommodation obligation and the right of all applicants to request a reasonable accommodation to participate in the application process. Additionally, provisions for processing applicant requests within the application process timeframe.
3. Written Confirmation - Although a reasonable accommodation request can be made in different ways, it is required that all requests be confirmed in writing and include:
   • Date accommodation request was received (for oral requests this is the day the oral request was made); and
   • Signature by the authorized decision maker.
4. Processing Timeframes - A company may set its own timeframe for processing requests - however the proposed rule specifies a requirement of 5-10 business days without the need for supporting medical documentation and no more than 30 days where supporting medical documentation or special equipment is required. Procedures should explain any extenuating circumstances that may result in going beyond the stipulated time frames and the written notification used to advise the requestor of the delay.
5. Process Description - A description of the steps involved, specific information required, and the interactive process that may be initiated with the requestor.
6. Medical Documentation - Parameters must be defined for any required medical documentation and include the following:
   • Not open-ended;
   • Limited to the disability and functional limitations; and
   • Required only if disability and reasonable accommodation is not known or obvious.
7. Denial - Stipulation that denials must be in writing and include:
   • Reason with date and signature by the authorized decision maker;
   • Any relative information about an internal appeal process;
   • A statement advising requestor of their right to file a discrimination complaint.
8. Confidentiality - Indication that all requests for reasonable accommodation and related documentation will be treated as a confidential medical record and will be maintained in a separate medical file.

For more information on this proposed rule:

Read the complete highlight article, Fact Sheet, or Frequently Asked Questions from the OFCCP.

Click here to download the proposed rule

Click here to comment on the proposed rule

Comment period closes 2/7/2012  2/21/2012

THOMAS HOUSTON associates, inc. can assist you in meeting the challenges that will arise as a result of the upcoming OFCCP's regulatory efforts. We offer pro-active and proven compliance tools and methods.

For more information on the affirmative action compliance services offered by THOMAS HOUSTON associates, inc. visit our website www.thomashouston.com, call (800) 330-9000 or click here to schedule a convenient time for a call from an Affirmative Action Consultant.

Good Faith Effort for Individuals with Disabilities

Post the "National Disability Employment Awareness" poster during the month of October:

For more information on the campaign click here.  To download the poster click here.

For information on the affirmative action compliance services offered by THOMAS HOUSTON associates, inc., call 1-800-330-9000 or click here to schedule a convenient time to receive a call from one of our Affirmative Action Consultants.

A Clear Message from the EEOC

Employers are obligated to provide Reasonable Accommodation

From September 2 to September 22, 2011, the EEOC has filed 19 disability discrimination lawsuits involving both employees and applicants.  A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. The majority of these lawsuits include the denial of a reasonable accommodation.

The EEOC website defines reasonable accommodation as any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodation may include specialized equipment, facility modifications, and adjustments to work schedules or job duties, as well as a whole range of other creative solutions.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids.

An abbreviated listing of disability discrimination lawsuits filed by the EEOC during September 2011:

• Refusing a Leave of Absence request and then terminating an employee with a knee injury
• Terminating an employee because of a perception of substantial limitation due to a disclosed medical condition
• Terminating an employee suffering from traumatic brain injury because of disability and/or need for reasonable accommodation
• Terminating an employee with diabetes instead of making a reasonable accommodation
• Failing to provide reasonable accommodation to an applicant for drug testing and denying an applicant employment due to their disability
• Demoting and forcing an employee to quit because of cerebral palsy
• Refusing reasonable accommodation to an employee with cerebral palsy; refusing to hire an applicant taking prescribed medication for epilepsy due to drug test results
• Demoting, harassing, retaliating against and firing a deaf employee
• Refusing to promote an employee regarded as disabled
• Laying off and refusing to rehire a disabled employee who requested a reasonable accommodation
• Refusing an applicant reasonable accommodation during assessment and denying employment

For further information on reasonable accommodations or other affirmative action related needs, call 1-800-330-9000 or click here to schedule a convenient time for your call.