Avoid ADA Violations

March 7, 2018 by

ADA - The Americans with Disabilites ActIf you own a business, you are required to follow various specifications related to the Americans with Disabilities Act (ADA). Failure to do so could result in fines, accidents, loss of business, and even lawsuits. Taking note of the most common violations and working to eliminate them can save you more than a few headaches.

Frequent ADA Violations

Access is a key issue addressed by ADA guidelines. Failure to provide it is a serious problem:

  • Number of parking spaces: The law requires a certain minimum number of parking spaces, based on the size of the business and parking lot;
  • Condition of designated spaces: When handicapped parking spaces are on a slope, or when the paint is faded and difficult to see, it is a violation;
  • Van access not in compliance: Vans require larger spaces and/or aisles to enable wheelchair bound individuals the room to maneuver;
  • Signage missing: Reserved spots lack a sign designating them for accessibility;
  • Entry Routes inaccessible: Ramps or curbs are lacking or non-existent, or surfaces are not level;
  • Doorways are inaccessible: Automatic doors are not available;
  • Indoor access to the facility: Tables, counters, and other surfaces are not in compliance with ADA guidelines, or aisles within the building are not wide enough for wheelchairs to maneuver;
  • Floor space not cleared: Objects in aisles and otherwise leaving insufficient room to turn around in a wheelchair;
  • Bathrooms not in compliance: Problems related to missing grab bars, inaccessible sinks, towel dispensers, faucets, mirrors, hand sanitizer or soap dispensers, and toilet seat cover dispensers.

Businesses Most Often Found in Violation of the ADA

Any business is responsible to provide access for disabled individuals. Those businesses most frequented by the public experience the greatest numbers of complaints for non-compliance. In California, the data relating to complaints gives us a window into the businesses most often found to have deficits with regard to ADA accommodations:

  • Sales and/or rental businesses: 41% of complaints;
  • Food and drink establishments: 27% of complaints;
  • Service-oriented businesses: 26% of complaints;
  • Lodging establishments: 4% of complaints;

Employee ADA Training

In addition to the physical accommodations in your building, train employees about the proper way to interact with individuals with disabilities. Remember, they are people who are looking for products or services, just like anyone else. Be aware that not every disability is visible, so courteous, individualized service from your employees will benefit everyone.

  • Individuals with slurred speech will require patience and attention;
  • Those with hearing difficulties may need to see your lips moving as you speak;
  • Individuals of short stature may appreciate employees coming around a counter to interact;
  • Someone with respiratory disabilities or chemical sensitivities may have an adverse reaction to spray cleaners, air fresheners, or other toxins in the air;
  • Persons with psychiatric disabilities may have trouble with social cues, stressful situations, or unexpected delays.

[Read more…]

Filed Under: Americans With Disabilities Act, Blog Tagged With: , ,

Disability Accommodations for a Disability That Does Not Require Accommodations?

September 21, 2016 by

Disability AccommodationsDisability accommodations – Moore v. Regents of the University of California. Let’s say that an employee approaches his or her manager, and asks for disability accommodations. And, let’s say that the employee does not actually have any conditions that qualify as a disability under California’s Fair Employment and Housing Act (FEHA). In this case, can the employee be protected by FEHA if the employer refuses to consider granting the disability accommodations?

The answer, according to a California appeals court, is yes. In the case of Moore v. Regents of the University of California, the Court of Appeals of California for the Fourth District, Division One, found that an employer’s unwillingness to engage in an interactive process with an employee who requested an accommodation could constitute a violation of FEHA – even if the employee did not have a condition that meets FEHA’s definition of a disability.

Did the University of California Violate an Employee’s Disability Accommodations FEHA Rights?

Deborah Moore worked in the Marketing and Communications Department of the University of California San Diego. After she was diagnosed with idiopathic cardiomyopathy, she informed her employer. She was later demoted, and eventually, her position was eliminated.

Moore filed a complaint asserting that UCSD discriminated against her on the basis of a disability, in violation of FEHA. She alleged, among other claims, that UCSD failed to accommodate her disability. She also alleged that UCSD failed in its duty, under FEHA, to engage in a “timely, good faith, interactive process” with an employee who has requested accommodation for a disability.

The trial court that originally handled Moore’s case dismissed her complaint. It held that Moore did not have a disability that required disability accommodations under FEHA, and thus UCSD did not have an obligation to engage in an interactive process with her.

However, the appeals court disagreed. The court held that it is possible for an employer to violate FEHA by refusing to engage in the interactive process with an employee who claims to require disability accommodation, even if the employee ultimately was not entitled to disability accommodations.

According to the ruling, if an employer regards an employee as having a disability, then the employee is entitled to make a FEHA claim, on the grounds that the employer failed to engage in the interactive process. The Court held that the point of this process is to find appropriate accommodations for employees who have conditions that are considered disabilities under FEHA, or for employees who are merely regarded as disabled by their employers.

The Court held that it would be reasonable for a finder of fact (such as a judge or jury) to conclude that UCSD regarded Moore as disabled. On this basis, the Court ruled that the trial court had erred in granting summary judgment on Moore’s cause of action related to failure to participate in the interactive process. [Read more…]

Filed Under: Americans With Disabilities Act, Blog Tagged With: , , ,

Does Former USC Coach Sarkisian Have A Discrimination Case

December 18, 2015 by

discrimination caseDoes former USC Football Coach Steve Sarkisian have a discrimination case? Steve Sarkisian was fired from his position as head coach of the University of Southern California (USC) football team in October, after incidents during which he allegedly appeared at events intoxicated. Sarkisian has now filed a wrongful termination suit against USC, alleging (among other claims) that the university discriminated against him on account of his alcoholism.

The circumstances of the firing are unclear. Sarkisian claims that he asked athletic director Pat Haden for time off to seek treatment for alcoholism, and in response Haden placed him on indefinite leave. According to Sarkisian’s complaint, he was then “kicked to the curb” less than a day later, when he was notified of his firing via email while he was traveling to a rehabilitation program.

However, USC issued a public statement in response to Sarkisian’s allegations that portrays the matter differently. According to USC, Sarkisian never acknowledged that he had a problem with alcohol and refused help when the university offered it. USC also claims that it provided Sarkisian with written notice that he would lose his job if there were further “incidents.”

Was Sarkisian’s Firing Justified or is a Discrimination Case a Possibility?

The discrimination case deals with some complex issues surrounding discrimination law. Under both the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA), alcoholism is a protected disability. It is illegal under both statutes to discriminate against an employee based on the stigma of alcoholism or based on past alcohol use. However, an employee is not protected when it comes to current alcohol abuse or misbehavior that arises from alcohol abuse.

Sarkisian’s complaint acknowledges that he “appeared” inebriated at a USC fundraising event called Salute to Troy and that he uttered an obscenity at the event. Sarkisian claims that he drank two beers and then took two prescription anxiety medications, and that his behavior stemmed from the mixture of the medication and the alcohol in his system. This event could prove to be crucial to the case. If the finder of fact determines that this constituted Sarkisian being intoxicated at work, then the incident could be seen as a justifiable reason for termination.

However, if the finder of fact determines that Sarkisian was fired for seeking treatment for alcoholism, then his termination could be seen as discriminatory. It is generally considered a violation of the ADA as well as FEHA to fire an employee under such circumstances. [Read more…]

Filed Under: Americans With Disabilities Act, Employment Discrimination, wrongful termination Tagged With: , , , , , , , ,

Americans with Disabilities Act and Cancer

December 1, 2015 by

americans with disabilities actMany people think of the Americans with Disabilities Act (ADA) as protecting people with permanent disabilities. But the legislation also protects people with conditions, such as cancer, that may be temporary. The Equal Employment Opportunity Commission (EEOC) has clarified that cancer is covered by the Americans With Disabilities Act, and has released a document providing guidance to employers regarding the rights of employees with cancer.

The document clarifies that individuals with cancer “should easily be found” to be disabled, according to the ADA’s requirement that an individual be substantially limited in a major life activity or normal cell growth. It also clarifies that individuals who once had cancer and are now in remission should also easily be found to have a disability under the Americans With Disabilities Act, as they would be substantially limited in a major life activity or normal cell growth if they had a recurrence of cancer.

What an Employer May and May Not Say to an Employee with Cancer

The document details the types of questions an employer may ask an employee or job applicant regarding cancer:

  • An employer may not ask a job applicant if he or she has cancer, or if he or she has ever had cancer, or if he or she is undergoing any type of cancer treatment.
  • If a job applicant volunteers that he or she has cancer, or that he or she once had cancer, an employer generally may not ask follow-up questions about the cancer – unless the employer reasonably believes that the applicant will need accommodations due to the cancer.
  • If a job applicant has received a conditional job offer, and then the employer learns that the applicant has or had cancer, then the employer may ask the applicant additional questions.
  • An employer may ask an employee with cancer questions about his or her condition, if the employer reasonably believes that the employee will be unable to perform his or her job functions safely.

Accommodations

The EEOC has also addressed the issue of accommodations for employees with cancer. An employee with cancer can request an accommodation merely by explaining that they require it because of their cancer. In addition, another person can request the accommodation on their behalf.

However, an employer does not necessarily need to grant all requests for accommodation. An employer can turn down a request for accommodation if it is unreasonable. An employer may also turn down a request for a reasonable accommodation if it would cause undue hardship for the employer. (In addition, an employer who receives a request for accommodation has the right to ask for medical documentation.) [Read more…]

Filed Under: Americans With Disabilities Act, Blog Tagged With: , , ,

Social Security Disability and the Americans With Disabilities Act

August 21, 2015 by

social security disabilitySocial Security disability and the Americans With Disabilities Act. The Americans With Disabilities Act (ADA) requires many employers to provide reasonable accommodations for employees with disabilities. It also prohibits employers from discriminating against qualified individuals with disabilities. Many people are familiar with the basic provisions of the ADA, without actually understanding how it defines the term “disability.”

One likely source of confusion is the Social Security Disability program, which has a very different standard for determining who is disabled. Social Security Disability provides benefits for individuals who have worked in the past, but are no longer able to work because of disabilities. Anyone who has applied for Social Security Disability benefits can tell you that the Social Security Administration has extremely strict standards for qualification.

What many people don’t realize is that not all government agencies use the same standard for what constitutes a disability – and the ADA’s standards for a disability are far less strict than those of the Social Security Administration. In order to qualify for Social Security Disability benefits, an applicant must demonstrate that their disability is so severe that it prevents them from working altogether. The ADA, on the other hand, applies to people who are capable of working, so its definition is far broader.

The Language of the Americans With Disabilities Act

Under Section 12102 the ADA, the term “disability” means, with respect to an individual:

  • A physical or mental impairment that substantially limits one or more of an individual’s “major life activities”;
  • A record of such an impairment; or
  • Being regarded as having such an impairment.

The expression “major life activities” includes a wide variety of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, thinking and working.

It can also refer to what the ADA calls “the operation of a major bodily function.” Section 12102 includes the following examples: “Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

It is important to note that, as stated in the third bullet above, an individual can be protected by the ADA even if he or she does not have a disability that meets these requirements. The ADA prohibits discrimination based on the belief that an individual has a disability. This means that, for example, if an employer incorrectly assumes that an applicant for a typist position is HIV-positive, and refuses to hire him or her on that basis, this would violate the ADA, regardless of whether the employee actually is HIV-positive. If the applicant was regarded as having a disability, and was denied the job on that basis, then it does not matter whether the employer’s assumption was correct.

Violations of the Americans With Disabilities Act

If an employer has discriminated against you on the basis of a disability (or perceived disability), or is refusing to provide you with reasonable accommodations, you may have a valid ADA claim.

You may also have recourse at the state level. California has its own laws prohibiting discrimination, which are some of the strictest in the country. If you live or work in the Santa Rosa, Petaluma, Ukiah or Lakeport area, contact our experienced labor law attorneys at Beck Law P.C.,  to schedule a consultation and learn more about your legal options.

Filed Under: Americans With Disabilities Act Tagged With: , , , , , , ,

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