Category Archives: Disability

Is Your Businesses’ Website ADA Compliant?

What is a “drive by lawsuit.” This phrase refers to lawsuits filed by attorneys on behalf of disabled persons, in which the attorney or disabled person, sues a business for non-compliance under the Americans with Disabilities Act (ADA). Often, those who file these lawsuits don’t frequent the establishment that they are suing.

These lawsuits are filed because the building doesn’t have a wheelchair ramp, or maybe its disabled parking space isn’t to exact specifications. Whatever the reason, this type of lawsuit can result in expensive fines, and require costly building retrofitting.

But while these types of lawsuits have gained plenty of attention, news organizations are now waking up to a new type of disability lawsuit that’s occurring with increasing frequency. These lawsuits involve ADA accessibility issues relating to a company’s website. And if businesses don’t pay attention to these new lawsuits, they could find themselves caught up in expensive litigation, and hit with expensive fines.

Making things more difficult for business owners, the Federal Government has yet to release a long-anticipated list of guidelines for how business owners can make their websites ADA compliant, leaving companies scrambling to figure out the best way forward.

This article was written to briefly discuss the topic of ADA compliance as it relates to websites, as well as some of the guidelines that are available to help businesses become compliant. As always, if you have concerns that your company’s websites aren’t compliant, or you are facing legal action, seek the advice of a good lawyer.

ADA Website Lawsuits | Branigan Robertson

ADA Challenges in the Era of the Website

According to a February 2018 article published by the website, there are as many as three ADA lawsuits being filed daily relating to accessibility issues on company websites. In some of these cases, multiple businesses are being sued by the same plaintiffs.

In March, CBS Money Watch published an article explaining that corporate giants Nike, Burger King, Hershey, Lord & Taylor and Pandora were all being sued due to online accessibility issues. The article noted that back in 2010, the US Department of Justice, under the guidance of then President Barack Obama, announced it would soon release website accessibility guidelines so that companies could comply with ADA rules.

However, by 2016, near the completion of Obama’s second term, the updates still hadn’t arrived. Since President Donald Trump has taken over, there is no indication that these guidelines will be forth coming any time soon. And as attorney Minh Vu explained to CBS, figuring out how to become compliant can be a challenge for many companies.

“You cannot wave a magic wand to make your website accessible,” Vu said. “There aren’t a lot of people who know how to do it correctly.”

What the ADA says About Websites

The Americans with Disability Act states the Following:

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (leases to) or operates a place of public accommodation.”

It’s important to note that Federal Courts in the First, Second and Seventh Circuits have found that the ADA applies to Websites.

Los Angeles Superior Court Judge Fines Business Over Noncompliant Website

In May of 2018, a Los Angeles Superior Court judge ruled in favor of a plaintiff who sued a restaurant called the Whisper Lounge because of ADA accessibility issues on its website. In that case, the plaintiff alleged she was unable to read a menu on the restaurant’s website due to her vision impairment, adding that a link to a PDF version of the menu led to an error message.  She further alleged that a graphic image of the menu was unreadable, and the website contained graphics that were not labeled with descriptive tags.

The court ordered the restaurant to pay the defendant statutory damages totaling $4,000, and comply with requirements of WCAG 2.0 AA, which is a series of guidelines developed by a working group of the Web Accessibility Initiative.

Web Accessibility Initiative

The Web Accessibility Initiative is an effort of the World Wide Web Consortium (W3C), which seeks to improve the accessibility of the internet for persons with disabilities. It is comprised of various stakeholders, including special interest and disability groups, as well as accessibility research organizations. Initiative workgroups and task forces research and develop guidelines in order to improve internet accessibility. They also develop support materials to help folks understand Web accessibility.

The fruits of these workgroup’s efforts include the guidelines for making websites more accessible to disabled people, the implementation of which could potentially limit a company’s exposure to ADA lawsuits.

While the defendant in the case mentioned in the previous section argued that the WCAG guidelines aren’t legally binding, the court noted that the complaint did not seek to hold the defendant liable for violating their provisions. Rather, the plaintiff referenced the guidelines and sought to compel defendant to “take the steps necessary to make readily accessible and usable by visually-impaired individuals.”

For more information on the Web Accessibility Initiative as well as WCAG guidelines, visit the group’s website.

What this Means for Companies Who Operate Websites

If you operate a website as part of your business, now might be a good time to consider your site’s accessibility issues. Guidelines included in WCAG 2.0 include a range of suggestions for making content more easily accessible to disabled persons. For instance, audio-only content can be enhanced by presenting the audio information along with a text document edited to match the dialogue.

Other guidelines discuss:

  • The speed with which content is presented.
  • How a user might adjust the speed with which content is presented
  • Whether rapidly flashing content can cause seizures
  • How the headings or labels on each page describe the intended topic or purpose

These are just a tiny sampling of the types of issues businesses might have to consider in order to limit their liability.

If You’re Unsure About Website Compliance Issues, Consult an Attorney

If you’re a business owner who’s unsure of how to make your website ADA compliant, this can be a confusing time. The federal government has been slow to develop guidelines for businesses to follow, leaving the information gap to be filled by other groups. Meanwhile, the onslaught of lawsuits continues.

If you have questions, a good attorney can help you understand the existing law, and develop best practices so that you can comply with the law. If you face legal challenges that threaten your business, a good lawyer will be vital to helping you navigate the legal system’s many challenges.

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What if an Employer Treats an Employee as Disabled When the Employee isn’t Disabled?

Most people know that an employer can’t fire a disabled person in California if the worker can perform the essential functions of the job. But can a company fire an employee it believes to be disabled, but isn’t actually disabled? In other words, may your boss fire you if he believes you’re disabled, even when you’re not? No, they can’t. This is called “perceived disability” and hopefully the following article will shed some light on this sparsely used term.

The Legal Foundation of “Perceived Disability” in California

CA law is very clear that terminating an employee because of a disability, when the employe can perform the essential functions of the job, is unlawful. Lawyers call this disability discrimination. But the law also addresses the odd scenario when someone doesn’t have a disability, but the employer thinks they do. A quick look at the CA Code of regulations makes it clear:

California Code of Regulations § 7293.6. (5) A “Perceived Disability” means being “Regarded as,” “Perceived as” or “Treated as” Having a Disability. Perceived disability includes: (A) Being regarded or treated by the employer or other entity covered by this subchapter as having, or having had, any mental or physical condition or adverse genetic information that makes achievement of a major life activity difficult; or (B) Being subjected to an action prohibited by this subchapter, including nonselection, demotion, termination, involuntary transfer or reassignment, or denial of any other term, condition, or privilege of employment, based on an actual or perceived physical or mental disease, disorder, or condition, or cosmetic disfigurement, anatomical loss, adverse genetic information or special education disability, or its symptom, such as taking medication, whether or not the perceived condition limits, or is perceived to limit, a major life activity.

Example of Perceived Disability

One example of perceived disability would be if an employee, Jimmy, worked for ACME Company and after ten years of service he receives a misdiagnosis of Parkinson’s disease, a progressive, degenerative disease of the nervous system. Jimmy tells his boss. Obviously, Jimmy is still able to perform all the essential functions of his job, but immediately after telling his employer, his direct supervisor writes Jimmy up for being “crazy” and “weird.” Furthermore, Jimmy is required to report to his direct supervisor after every doctor’s visit. A month or two later his boss terminates him for “not fitting in.” This is illegal.

Usually the discrimination is not this obvious. But if you’ve been fired because your employer believed you were disabled, but you were not disabled, you may have a claim for disability discrimination under CA’s Fair Employment & Housing laws. Contact our office for a free consultation.

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Reasonable Accommodation – California Employment Law

Employers have an affirmative duty to reasonably accommodate disabled employees. Our firm gets quite a bit of calls from potential clients who have a disability, yet their employers fail to accommodate them so they can perform their job duties. While not all disabilities are protected under the law, generally, employers are required to reasonably accommodate an employee’s known disabilities so that the employee can perform the essential functions of the job.

How Can an Employer Reasonably Accommodate a Disabled Employee?

How to reasonably accommodate an employee depends on the employee’s disability and what he or she can perform given his or her limitations. Therefore, there is no one specific way to accommodate an employee. Rather, there are many different ways an employer can reasonably accommodate an employee.

FEHA provides a list of just some of the ways in which an employee can be reasonable accommodated. This list includes some of the following.

  • An employer can make the work facilities readily accessible to the disabled employee. An employer can do this by modifying furniture or equipment for use by the disabled employee, or reserving a parking place for the disabled employee so he can park closer to work.
  • The employer can also modify the disabled employee’s work schedule. For example, if an employee is treated for cancer in the afternoons, then the employer can change the employee’s work schedule so he comes in earlier to work and leaves earlier for his cancer treatments so he gets a full day of work and completes his daily tasks.
  • An employer can even reasonably accommodate a disabled employee by having the employee work from home.

This listed examples is not exhaustive, there are many more ways an employer can reasonably accommodate a disabled employee.

What About Assistive Animals?

Here is something very interesting related to reasonable accommodation. Under California law, an employer must allow for assistive animals in the workplace as a form of reasonable accommodation. Assistive animals include guide, support, or service dogs. This includes animals that provide emotional support to a disabled employee suffering from post-traumatic stress disorders and even depression.

Contact An Employer Lawyer if You Have Reasonably Accommodation Questions

Unfortunately, a lot of times employers can be lazy and do not want to work with the disabled employee. But there are often multiple ways an employer can reasonably accommodate a disabled employee. If you are a disabled employee and your employer is failing to provide reasonable accommodation, or has fired you because they do not want to provide a reasonable accommodation, then call an reasonable accommodation & disability employment lawyer for a free consultation.

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Work Disability Discrimination Case Law

Injuries and diseases happen all the time, and sometimes it can affect a person’s normal day to day activity, such as their job. Under California law, it is unlawful for an employer to discriminate or take adverse action (such as demotion, cut in pay, or termination) against an employee based on his or her disability if that employee can be reasonably accommodated. Under the law, the definition of disability is broad. A disability can include any physical or psychological disability.

Even more interesting is that an employee is protected from disability discrimination due to a perceived impairment that is disabling, potentially disabling, or perceived to be disabling. Therefore, if your employer assumes you are disabled, even if you are not, and terminates you based on that incorrect assumption, the employer may have broken the law. If you are an employee suffering from a disability and you believe your employer fired you because of the disability, contact a disability discrimination lawyer immediately.

Disability Case Review – Leggins v. Thrifty Payless Inc.

Leggins is a case out of the Superior Court of Los Angeles, and provides a good example of what an employer should not do when an employee has a disability. Plaintiff was a store manager for the employer for 30 years. Plaintiff suffered a neck injury as he was trying to stop a robbery in his store. Plaintiff had to have several surgeries due to the neck injury. Once he returned to work, he requested to be moved to a different location where he would do less physically demanding work. However, nothing was done.

Sadly, Plaintiff had another injury which made his neck injury even worse. Plaintiff was eventually transferred, but the manager there would give him work that exceeded the limitations of his injury. Even after Plaintiff complained to the manager that he cannot perform the work due to his injury, the manager gave him even more of the physically demanding work. Soon after the transfer and working with this new manager, Plaintiff was fired.

The case went all the way to trial, and the jury returned a verdict for the plaintiff. The jury found that the employer did indeed discriminate against the Plaintiff based on his disability. The jury awarded the plaintiff over $8,000,000 in damages.

Contact a Discrimination Lawyer

At the end of the day, cases such as Leggins show that the law and the California judicial system is fair and just. Further, it bolsters the ability of California employees to hold their employers accountable for violating the law. If you have a disability and you feel your employer is taking adverse action against you because of your disability, contact a discrimination lawyer as soon as possible! Visit our disability discrimination lawyer page for details on hiring a attorney if you already feel you have a case.

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Case Verdict – Disability Discrimination Lawsuit

Under California law employers cannot discriminate against an employee based on a disability. Under FEHA (The California Fair Employment and Housing Act), it is unlawful for an employer to discriminate against an employee on the basis a physical or mental disability which also includes medical conditions. This is typically called disability discrimination. Thus, it would be unlawful for an employer to terminate an employee because of a physical or mental disability. Here is a detailed whiteboard video on this area of law.

What is a physical or mental disability?

But what is a physical and mental disability? A physical disability is a disability, disease, condition, or disfigurement that limits the person from taking part in major life activities. Similarly, a mental disability is disorder, mental illness, or learning disability that limits the person from taking part in major life activities. Examples of a physical and mental disabilities include, but are not limited to, heart disease, depression, bipolar disorder, diabetes, injuries to the ligament, and post-traumatic stress disorder. If you have a disability and you feel that your employer is discriminating against you due to your disability, call a disability discrimination attorney for a free consultation.

Vasquez v. Los Angeles County of Metropolitan Transportation Authority

Vasquez is a fairly recent case that provides a good example of what an employer should not do when it comes to an employee having a disability. Plaintiff was a bus driver for the LA County Metro, the defendant. Sadly, the plaintiff had many different kinds of disabilities, such as diabetes, a hip condition, and gout. Due to all of these disabilities, plaintiff would miss work occasionally. After almost four years of employment with the defendant, plaintiff was fired for poor attendance even though most of his absences were due to plaintiff’s various disabilities.

Plaintiff argued that the defendant wrongfully terminated him because of his many disabilities. Defendant argued that the absences were legitimate and that he was fired in violation of the attendance policy. The jury sided with the plaintiff. The jury awarded the plaintiff a total verdict of almost $2 million dollars.

Contact a Disability Discrimination Attorney for a Free Consultation

At the end of the day, Vasquez shows that the California courts are holding employers who break the law accountable for their actions. If you think your employer has terminated you because of a disability, whether it be physical or mental, then please call our office for a free consultation with a disability discrimination lawyer. If you know a little about this area of law, you’ve probably heard about reasonable accommodations. Read more about those here.

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Racial Harassment in the Workplace

It is unlawful for an employer to harass another employee based on that employee’s race. An employee can show that he or she is being harassed for race if the employee is a member of a protected class (in this case the protected class is race), employee experienced unwelcome harassment at work due to his or her race, and the harassment severely interfered with his or her employment as it created a abusive working environment.

Racial harassment is very similar to sexual harassment, except the protected category is race rather than sex.

What is Racial Harassment?

Racial harassment occurs when there is racial or ethnic slurs, the distribution of racially offensive writings, and even treating a person differently and poorly because of that person’s race, and the harassment must be routine and repeated. But each case is different. Racial comments may be harassment in one case, but not in another case. You need to speak with an employment lawyer to find out if what you went through constitutes legal harassment.

The below video is all about hostile work environments (which includes race harassment). It provides a fantastic overview of CA’s law.

What Is the Employer’s Responsibility?

If the employee complains to the employer about racial discrimination or harassment, the employer has a duty to prevent further occurrences and remedy the harassment. If the employer fails to prevent it from happening again, then the employer may become legally liable for any damages that result. An employer is usually automatically liable if a supervisor is the one doing the harassing.

Race Harassment Example Case: Duffy v. City of Los Angeles

Here is an interesting case to come out the state court docket this year. Plaintiff was a Caucasian/white male who worked as a gardener for the City, the defendant. He was employed with the defendant for nineteen years. For the last several years of his employment, Plaintiff was experiencing racial harassment in the workplace for being white by his co-workers. On one occasion, one of his Hispanic co-workers told him that he hates white people and would never offer Plaintiff assistance in the workplace.

The harassment increased after Plaintiff was injured on the job. The defendant denied all of this and basically argued that it never happened. The jury unanimously found in favor of the Plaintiff for disability and racial harassment among other things and awarded the Plaintiff a gross verdict of over $3,000,000.

Duffy v. City of LA just goes to show that the laws protect everyone regardless of their race. At the end of the day, if you are being discriminated and harassed in the workplace, and you think it is because of your race or national origin, contact an employee rights attorney for a free consultation.

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Your Right to Receive Reasonable Accommodations Due to Disability in the Workplace

California law requires that employer make reasonable accommodation for the known disabilities of employees to enable them to perform the job’s essential functions unless doing so would produce undue hardship to the employer’s operations. This is an affirmative duty for employers to accommodate disabled workers. The Fair Employment and Housing Act (also known as FEHA) provides a list of possible accommodations including making facilities readily accessible for disabled employees, job restructuring, modifying work schedules, or even allowing an employee to work from home. Disability discrimination and employment lawyers ensure that employers in California will be held accountable for failing to provide reasonable accommodation for disabled employees.

FEHA Protects your Rights

In Doe Psychiatrist v. California Department of Corrections & Rehabilitation (“CDCR”), Plaintiff was a full time psychiatrist for CDCR since 2006. After medical leave of absence, Plaintiff informed the employer that she had ADHD and depression. She then asked for reasonable accommodations and presented the employer with a list of possible accommodations such as a more secluded and quiet place to work. CDCR refused to provide the accommodations. The employer notified the Plaintiff that she would need to decide whether to return to work or not. Plaintiff ended up being terminated shortly thereafter. Plaintiff retained an employment lawyer to represent her against the CDCR.

The employer argued that Plaintiff did not give the employer sufficient medical information to the employer, and that reasonable accommodation was already provided to the Plaintiff when she took a leave of absence. The jury did not buy the employer’s arguments. The jury awarded Plaintiff a gross verdict of over $1 million for employer’s failure to provide reasonable accommodations, and failure to engage in good faith in the interactive process.

Reasonable Accommodations in Today’s Workplace

Sadly, employers fail to provide employees with reasonable accommodation all the time. Many times employers may do this to cut costs. However, as the above case shows, employers will be held accountable for failing to provide disabled employees with reasonable accommodation. If your employer has failed to provide you with reasonable accommodation, contact an employment lawyer immediately.

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