Archive for January, 2013

NYC Restaurants Settle ADA Public Accommodation Case Brought by U.S. Attorney

It’s not an employment case, but nevertheless important for ADA watchers. The U.S. Attorney for the Southern District of New York announced yesterday the settlement of alleged ADA Title III violations against owners and operators of three popular Mexican restaurants in New York City.

The U.S. Attorney brought the suit against ROSA MEXICANO COMPANY, WEST 62 OPERATING LLC, FENIX RESTAURANT, INC., and ROSA MEXICANO USQ LLC–owners and operators of the Rosa Mexicano restaurants.

According to the suit, the defendants committed numerous ADA violations at each of Rosa Mexicano’s Manhattan locations: 61 Columbus Avenue (“Rosa Mexicano Lincoln Center”), 1063 First Avenue (“Rosa Mexicano First Avenue”), and 9 East 18th Street (“Rosa Mexicano Union Square”). “Most significantly, Rosa Mexicano Lincoln Center lacks an accessible main entrance, and its “alternate entrance” is also non-compliant in several respects.”

Similarly, Rosa Mexicano First Avenue similarly lacks an accessible entrance, and all three of its restrooms are
inaccessible to persons with disabilities, the U.S. Attorney charged. At Rosa Mexicano Union Square, both the main and
“alternate” entrances fail to comply with the ADA, as do the men’s and women’s restrooms.

Under the consent decree setting the case, the defendants will have to make the restaurants’ entrances, waiting areas, bar areas, dining areas, and restrooms more accessible.

“Notably, the consent decree provides for renovations to the main and alternate entrances at Rosa Mexicano Lincoln Center; the creation of an accessible alternate entrance and the construction of an accessible restroom at Rosa Mexicano First Avenue; and renovations to the entrance and the men’s and women’s restrooms at Rosa Mexicano Union Square.”

The owners and operators of the restaurants will pay a $30,000 civil penalty to the United States, the U.S. Attorney said.

Why does this matter for employers? Because all public accommodations–including employers that let in the public to their premises–are subject to the ADA. Also, if the restaurants were not making their premises accessible to disabled patrons, chances are they weren’t making them accessible to their workers also.

You can read more about the settlements at the U.S. Attorney’s website.

Harkin Bill Includes Tax Credits for Wellness Programs

Employers could take a tax credit per employee for offering a wellness program or gym membership under legislation introduced by Senator Tom Harkin (D-Iowa).

Harkin, who recently announced he won’t seek re-election to another term in 2014, last week introduced the Healthy Lifestyles and Prevention America Act (S. 39). The proposed tax credit would pay for half of an employer’s costs for a wellness program, up to $200 per employee for companies with up to 200 employees and $100 per employee for larger companies.

To qualify for the credit, the program would have to be certified by the U.S. Department of Health and Human Services, and contain three of these four components: health awareness, behavioral change, supportive environment, and employee engagement.

Here’s the text of the bill.


Thrift Store Forks Over $50K To Settle EEOC’s ADA Suit

Ignorance is still evident in some employer quarters regarding the requirements of the Americans With Disabilities Act. How else to explain the alleged actions taken by an Alabama thrift store that, according to the EEOC, fired an employee with a degenerative joint disease on the ground that she was a “liability.”

America’s Thrift Stores of Alabama, Inc. has agreed to pay $50,000 to settle this alleged ADA violation, the commission announced yesterday.

The lawsuit argued that the company’s Alabaster, Ala. store discriminated against Jenny Grimes by not providing her with a reasonable accommodation after she informed it of her disability and her need for an accommodation.  According to the suit, Grimes had a good employment record.

However, she needed an accommodation so she could continue ot perform her job in spite of her lifting and reaching restrictions.

That’s where the store fell down on the job, EEOC asserted, since it not only wouldn’t consider an accommodation.  According to the EEOC, it also had a blanket policy of refusing to allow employees with non-work-related injuries to return to work with restrictions.

Sounds like the company needs to hire a lawyer versed in the ADA’s requirements. The EEOC website can help him or her out in that regard.

Senators’ Immigration Rewrite Includes New Employment Verification System

A revamped system for verifying the legal status of employees is included in the proposal that emerged over the weekend between a group of Democratic and Republican senators to reform the nation’s immigration laws.

The proposal calls for a “tough, fair, effective and mandatory employment verification system,” that holds employers accountable for knowingly hiring undocumented workers and make it more difficult for unauthorized immigrants to falsify documents to obtain employment verification.

Employers would be allowed to hire immigrants if they can demonstrate that they were unsuccessful in recruiting an American to fill an open position and the hiring of an immigrant will not displace American workers.

The devil is always in the details in these proposals, but they are a promising start. Considering the shellacking the Republican Party took in the Hispanic vote in the 2012 election, it’s in their interest to work with the Democrats to get something done.

You can read more here from the senators on the outline of their proposal.

EEOC Recovers $50K for Bipolar Employee in ADA Settlement Against Gannett

A mental disability is no less owed protection under the Americans With Disabilities Act than is a physical disability. That was made clear on Thursday with the announcement by the Equal Employment Opportunity Commission that it had settled its ADA lawsuit against media giant Gannett Co. and an affiliated company, Gannett Media Technologies Inc.

The Gannett Cos. will pay $50,000 to settle EEOC charges that it violated the Americans With Disabilities Act by firing a bipolar employee after she returned from a medical leave of absence, the commission announced this past Thursday.

According to the lawsuit filed in the U.S. District Court for the District of Arizona, Gannett hired Robin Parker-Garcia in its Tempe, Ariz., facility as an application support analyst.  After Parker-Garcia returned from a medical leave of absence because of her bipolar condition, the Gannett companies unlawfully discharged her, in violation of the ADA.

They fired her even though during her employment, Parker-Garcia exceeded expectations and was up for a promotion before she went on the medical leave, EEOC alleged.

Gannett agreed to pay Parker-Garcia $49,000 in back pay and compensatory damages. (It’s not clear what the remaning $10,000 was for).

Read more about the settlement.

Same-Sex Marriage Bill Advances in R.I.; Sexual Orientation Bill Gets Through Va. Senate

Legislators in Rhode Island and Virginia inched forward this week to equality irrespective of gender and sexual orientation.

Same-sex couples would be allowed to marry in Rhode Island under a bill that passed the state house on Thursday. The vote was 51 to 19. The measures awaits an uncertain fate in the state senate. Rhode Island is the only state in New England that doesn’t allow same-sex couples to wed.

The Virginia senate, meanwhile, approved a bill that would prevent the state government from discriminating based on sexual orientation. The bill passed on a 24 to 14 vote; all the chamber’s Democrats voted in favor as did four Republicans.

Meanwhile, we’re less than two months away from oral arguments in the U.S. Supreme Court in two key cases on same-sex marrage. On March 26, the justices will hear the case challenging California’s voter-approved ban on same-sex marriage. The next day, March 27, the court will consider whether the Defense of Marriage Act, passed in 1996, violates the the U.S. Constitution by denying federal recognition of same-sex marriages.

Coincidentally, those are the first two days of Passover. So maybe it’s time to say “let our people go” toward a further expansion of equal rights and human dignity under the law.

High Court Takes Case on Proof Required to Establish Retaliation

The U.S. Supreme Court this week granted review in a Title VII case that could decide the standard of proof required for a plaintiff to prove retaliation under that statute and similarly worded civil rights laws.

Proof questions may seem esoteric and of interest only to attorneys, but in reality they can mean the difference between winning and losing a case. So this one bears watching.

The case comes to the high court from the Fifth Circuit U.S. Court of Appeals, which upheld a retaliation verdict in favor of a doctor of Middle Eastern descent who claimed that the University of Texas Southwestern Medical Center denied him employment because he complained about discriminatory treatment.

The Fifth Circuit ruled that the “required proof for a Title VII retaliation claim is less demanding than constructive discharge.” Therefore, since the doctor’s complaint was at least in part the reason for denying him employment, he wins his case.

But according to the hospital, that ruling is inconsistent with the U.S. Supreme Court’s 2009 decision in Gross v. FBL Financial Services Inc. In that case, teh court held that a plaintiff in an Age Discrimination in Employment Act case could not establish unlawful discrimination by showing that age was a motivating factor in the denial of employment.

Title VII and the ADEA should be subject to the same standards of proof, the medical center argued in its petition for review.

The case is Univ. of Texas Southwest Medical Center v. Nassar, U.S., No. 12-484.

Check back for updates on this case as it proceeds to oral argument and decision.




DOL Clarifies “Adult Child” Definition Under Family and Medical Leave Act

Attention employers and parents: The Department of Labor recently clarified the circumstances under which a parent may qualify for Family and Medical Leave Act leave to care for an adult child whose disability prevents him or her from self-care.

Normally, the FMLA doesn’t allow leave to care for a child years of age and older, but it makes an exception for adult children who have a disability and can’t care for themselves.

If you or a worker are confronting this situation and a request for FMLA leave has been made, you’ll want to consult a new administrative interpretation from DOL’s Wage and Hour Division, along with a fact sheet and frequently-asked-questions.

The FMLA authorizes parental leave to care for a son or daughter 18 years of age and older who is incapable of self-care due to a disability. According to the administrative interpretation, the disability doesn’t have to manifest itself when the child is 18 or older; it can manifest itself earlier and still be covered for FMLA purposes. Also,  just about any condition that substantially impairs a major life activity will be considered a disability under the FMLA just like it is under the ADA.

According to an example in the fact sheet, if a eligible employee’s daughter has been diagnosed with cancer at age 19, it would meet the ADA’s definition of disability.  Even if the daughter’s cancer goes into remission, it will continue to meet the ADA’s definition of disability because the active condition substantially limits a major life activity—normal cell growth.  In order for her parent to qualify for FMLA leave, however, (1) the cancer must cause the daughter to be incapable of self-care (based on her condition at the time the FMLA leave commences), (2) the daughter must have a serious health condition under the FMLA, (related to the cancer or not), and (3) the parent must be needed to care for the daughter because of the serious health condition.

A daughter’s high-risk pregnancy also could qualify for FMLA-approved leave, according to the FAQs. Pregnancy is not itself a disability, but “pregnancy-related impairments may be considered disabilities if they substantially limit a major life activity.”

If the daughter cannot take care of herself because of such a disability–for example, cannot cook, clean, or shop on her own– then she qualifies as an “adult daughter” under the FMLA for whom the parent can take leave.

This post linked from Knowledge Hub Networks.

Report: 46 States Protect Health Care Workers Who Refuse to Provide Abortion Services

On this 40th anniversary of the U.S. Supreme Court’s Roe v. Wade decision legalizing abortion in all 50 states, a large majority of states have laws on the books protecting health care workers who object to providing abortion-related services.

My thanks to the Guttmacher Institute for providing a recap of state policies on refusing to provide certain health servics. According to this research paper, as of Jan. 1, 2013,

  • 46 states allow some health care providers to refuse to provide abortion services. All of these states permit individual health care providers to refuse to provide abortion services.
  • 44 states allow health care institutions to refuse to provide abortion services; 13 limit the exemption to private health care institutions and 1 state allows only religious health care entities to refuse to provide such care.
  • 13 states allow some health care providers to refuse to provide services related to contraception.
  • 10 states allow individual health care providers to refuse to provide services related to contraception.
  • 6 states explicitly permit pharmacists to refuse to dispense contraceptives. (6 additional states have broad refusal clauses that do not specifically include pharmacists, but may apply to them.
  • 9 states allow health care institutions to refuse to provide services related to contraception; 5 states limit the exemption to private entities.
  • 18 states allow some health care providers to refuse to provide sterilization services.
  • 17 states allow individual health care providers to refuse to provide sterilization services.
  • 16 states allow health care institutions to refuse to provide sterilization services; 4 limit the exemption to private entities.

The paper also has depicts this information in chart form.

No matter where you stand on the abortion question, this is need-to-know information for HR personnel who may oversee employees covered under these laws.

This post streamed from Knowledge Hub Networks.

Obama Second Inaugural Address Pushes Equal Pay for Women

Did President Obama breathe new life today into legislative efforts to narrow the pay gap between men and women?

In his inauguration speech today marking the beginning of his second term, President Obama noted the nation’s unfinished business of ensuring equal pay for equal work. “For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their effort,” he insisted.

Was this a signal that Obama tends to push hard in his second term for something like the Paycheck Fairness Act?

The 1963 equal pay act mandates equal pay for equal work, but the wage gap persists, with many women continuing to make about 77 cents for every dollar that a man doing similar work makes.

The Paycheck Fairness Act, which would expand the scope of the equal pay act by making it easier to women to prove wage discrimination, never got to a vote in the last Congress, because Senate Republicans wouldn’t allow one.

Let’s see now whether President Obama will invest the political capital needed to move this legislation toward enactment.

This post streamed from Knowledge Hub Networks.