As those of you who have followed my thoughts on the state of the website accessibility legal landscape over the years are well aware, businesses in all industries continue to face an onslaught of demand letters and state and federal court lawsuits (often on multiple occasions, at times in the same jurisdiction) based on the concept that a business’ website is inaccessible to individuals with disabilities.  One of the primary reasons for this unfortunate situation is the lack of regulations or other guidance from the U.S. Department of Justice (DOJ) which withdrew long-pending private sector website accessibility regulations late last year.  Finally, after multiple requests this summer from bi-partisan factions of Members Congress, DOJ’s Office of Legislative Affairs recently issued a statement clarifying DOJ’s current position on website accessibility.  Unfortunately, for those hoping that DOJ’s word would radically alter the playing field and stem the endless tide of litigations, the substance of DOJ’s response makes that highly unlikely.

DOJ’s long-awaited commentary makes two key points:

  1. DOJ continues to take the position that the ADA applies to public accommodations’ websites, explaining that this interpretation is consistent with the ADA’s overarching civil rights obligations; and
  2. Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in determining how to comply with the ADA’s general requirements of nondiscrimination and effective communication.

This line of reasoning is similar to that adopted in judicial decisions holding that while the ADA’s overarching civil rights obligations apply to websites, it would be inappropriate to specifically require compliance with WCAG 2.0/2.1, without the WCAG having been officially adopted by the government as a required standard.  Of course, as those cases note, DOJ’s position begs the question, if a business has to make the goods and services offered on its website accessible to individuals with disabilities how else can it provide for “full and equal enjoyment” and/or “effective communication” if the business does not otherwise offer a website in substantial conformance with WCAG 2.0/2.1.  Indeed, DOJ’s views on this issue stops far from providing businesses with an ironclad defense.  While DOJ explains that public accommodations have “flexibility” in determining how to comply with the ADA’s requirements it also cautions that, “…noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” (emphasis added)  By way of example, a select number of cases have contemplated the validity of offering telephone service as an alternative to an accessible website (something DOJ had also previously considered during the since abandoned rulemaking process), with several courts expressing doubt that the availability, speed, and thoroughness of such a telephone service could ever fully equal that of the independently usable accessible website.  With that in mind, any employer looking to establish that it provides a viable alternative to an accessible website would have to be prepared to engage in a significant amount of litigation to prove the viability/accessibility of its alternative offering.

In concluding its response, DOJ seemingly passes the onus for resolving these issues back onto Congress, noting, “Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts [to address the risk of litigation on covered entities].”  Of course, given the number of higher profile matter currently confronting both DOJ and Congress, it would not be surprising if promulgating new website accessibility legislation/regulation will not be high on their lists.

Yesterday, the New York Attorney General (“NYAG”) announced a settlement with national retailer Aldo Group Inc. (“Aldo”) for violation of New York City’s ban the box law, which, among other things, prohibits employers from inquiring into a prospective employee’s criminal history on an initial employment application. The NYAG’s investigation revealed that (i) Aldo’s employment applications impermissibly inquired into the applicant’s criminal history and (ii) Aldo lacked consistent policies and procedures for evaluating the criminal records of applicants and employees, leading store-level managerial employees to believe they had wide latitude in how they could consider the criminal records of applicants and that they could bar applicants with a felony conviction from employment.

Under the settlement terms, Aldo will pay a $120,000 fine to New York State, modify their employment applications to bring them into compliance with New York’s ban the box law, create new policies and training to ensure that its stores individually assess applicants’ criminal histories at the appropriate point in the application process, and report the company’s remediation to the NYAG.

This is the first ban the box settlement reached by the NYAG in 2018, but the fifth such settlement overall. In 2017, the NYAG settled with Marshalls and Big Lots, as reported here.

This settlement should serve as another wake-up call to businesses operating in New York to bring their pre-hiring practices into compliance with New York’s ban the box law. The NYAG’s enforcement efforts are likely to continue and the costs of noncompliance are steep.

Our colleague  at Epstein Becker Green has a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the retail industry: “Massachusetts Attorney General Enforces State Ban the Box Law for First Time, Fining Three Businesses and Issuing Warnings to 17 Others.”

Massachusetts is one of many states which have adopted legislation, commonly known as a “ban the box” law, prohibiting public and private employers from requesting criminal record information in a prospective employee’s “initial written employment application” and limiting the type and scope of questions an employer may ask a candidate following receipt of an “initial written employment application.” Massachusetts Attorney General Maura Healey announced that her office has settled with four businesses and issued warning letters to 17 others for violations of Massachusetts’s ban the box law, marking the first enforcement efforts by the Massachusetts Attorney General’s Office. …

Read the full post here.

Our colleagues , at Epstein Becker Green, have a post on the Hospitality Employment and Labor blog that will be of interest to many of our readers in the retail industry: “Ninth Circuit’s Decision Holds That Salary History Is Not a Defense to Equal Pay Claims.”

Following is an excerpt:

The federal Equal Pay Act (“EPA”) mandates equal pay for equal work regardless of sex.  Employers that pay men and women different wages for the same work are strictly liable for violations of the EPA unless they can show that one or more of four exceptions apply to explain the wage disparity. The four statutory exceptions are seniority, merit, the quantity or quality of the employee’s work, or “any other factor other than sex.”  The Ninth Circuit recently took up the question of the meaning of the fourth, catchall exception – “any factor other than sex” – in order to consider whether an employer may rely, in whole or in part, on an employee’s prior salary as a basis for explaining a pay differential in Aileen Rizo v. Jim Yovino. …

Read the full post here.

Our colleagues , at Epstein Becker Green, have a post on the Health Employment and Labor blog that will be of interest to many of our readers in the retail industry: “Sixth Circuit Finds Title VII Covers Discrimination Based on Transgender Status.”

Following is an excerpt:

In a significant decision on Wednesday, March 6, 2018, the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. R.G. &. G.R. Harris Funeral Homes that discrimination against a worker on the basis of gender identity or transitioning status constitutes sex discrimination that violates Title VII.

In R.G. & G.R., the funeral home’s owner fired funeral director Aime Stephens after she informed him she intended to begin a gender transition and present herself as a woman at work. In finding gender identity to be covered by Title VII, the Sixth Circuit also upheld the EEOC’s claim that the funeral home’s dress code, which has different dress and grooming instructions for men and women, discriminates on the basis of sex. …

Read the full post here.

Featured on Employment Law This Week: Second Circuit: Title VII Covers Sexual Orientation Discrimination.

“Legal doctrine evolves.” Those words from the Second Circuit spoke volumes as the court ruled that Title VII of the Civil Rights Act prohibits sexual orientation discrimination, overturning their own long-standing precedent. The court ruled in favor of a skydiving instructor who claimed he was fired for telling a client he was gay.

The majority opinion began by looking at whether sex is a motivating factor in the alleged unlawful practice. And, in this case, looking at sexual orientation discrimination, the court concluded that sex is a factor and inextricably linked to sexual orientation, and therefore sexual orientation acts as a proxy for sex. The Second Circuit now joins the Seventh Circuit in finding that Title VII does protect against sexual orientation discrimination, and deepens a circuit split with the Eleventh Circuit, which went the other way last year.

Watch the segment below and read our recent post.

On January 11, New York’s City Council passed Int. No. 1186-A, which amends the New York City Human Rights Law to expand the definition of the terms “sexual orientation” and “gender.”  Previously, the law defined sexual orientation as meaning “heterosexuality, homosexuality, or bisexuality.” The new definition takes a broader view and offers a more nuanced definition that recognizes a spectrum of sexual orientations, including asexuality and pansexuality.  As amended, the law defines sexual orientation as:

[A]n individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality, and pansexuality.

The law also offers clarity on the definition of “gender,” and continues to include a person’s gender-related self-image, appearance, behavior, expression, or other gender-related characteristic within its scope.

The new law will take effect on May 11, 2018.

In December 2016 Philadelphia’s City Council passed a Wage Equity Ordinance (“Ordinance”) prohibiting employers from asking applicants for their salary history or to retaliate against a prospective employee for failing to answer such a question.  The law, which was to become effective May 23, 2017, has been stayed pending resolution of legal challenge by the Chamber of Commerce for Greater Philadelphia, alleging that the law violates employers’ First Amendment rights.

Nevertheless, on October 24, 2017, the Philadelphia Commission on Human Relations adopted a regulation  (“Regulation”) implementing the Ordinance. The Regulation seeks to clarify what employers may and may not ask and to further define which employers and applicants are covered by the Ordinance.

Covered Employers and Applicants

The Regulation specifies that the Ordinance the term “Employer” applies only to persons who are interviewing applicants with the intention of filling a position located within the City.

Prohibited Inquiries

Under the Regulation, an employer “shall not include a question on paper or electronic applications asking Prospective Employees to provide their salary history at any previous position.” The Regulation also prohibits employers from asking current employees seeking a new position (located in Philadelphia) about the employee’s wage history from any previous employer.

Permissible Inquiries

Employers may inquire into the applicant’s salary expectations, skill level, and experience relative to the position sought. In addition, employers may use voluntary salary history disclosures an applicant makes “knowingly and willingly” during an interview, provided it is not in response to a question from an employer.

Action Items

Although the Ordinance is currently on hold, employers with positions or offices in Philadelphia may nevertheless wish to prepare for the possibility that the law will become effective by:

  • Identifying jobs that are based in Philadelphia. This will be especially important for positions where an employee may work in more than one location.
  • Preparing a Philadelphia-specific employment application that removes any request for salary history.  The ordinance does not expressly state that it is sufficient to have an instruction on the employment application that directs Philadelphia applicants not to answer salary history questions.

In a decision that will be celebrated by employers in the Seventh Circuit struggling with employee requests for post-Family Medical Leave Act (“FMLA”) leave as an accommodation under the American with Disabilities Act (“ADA”), the Seventh Circuit in Severson v. Heartland Woodcraft, Inc., 2017 U.S. App. LEXIS 18197 (7th Cir. Sept. 20, 2017), recently held that an employer did not violate the ADA by firing an employee instead of extending his leave after he exhausted all leave under the FMLA.  This holding – finding that extended long-term leave is not a reasonable accommodation under the ADA – is not only contrary to the Equal Employment Opportunity Commission (“EEOC”)’s position regarding extended leave as a reasonable accommodation, but also conflicts with several other federal Circuit courts that had previously ruled on the same issue (holding that extended/post-FMLA leave can be a reasonable accommodation under the ADA).

In Severson, the plaintiff was diagnosed with back myelopathy, which negatively affected his back, neck, and spinal cord.  While plaintiff generally could perform his duties without incident, he did experience several “flare ups” which made it difficult for him to walk, bend, lift, stand, and work.  As a result of his disability, plaintiff injured his back and went on FMLA leave, with several continuations of leave, totaling 12 weeks, approved by defendant.  After exhausting all FMLA leave, plaintiff informed defendant that he would undergo disc compression surgery and would require at least an additional two months of leave for recovery time.  Instead of extending plaintiff’s leave, defendant informed plaintiff that his employment would terminate on the date that his FMLA leave expired.

In reaching its holding that leave for an extended period of time is not a reasonable accommodation under the ADA, the Seventh Circuit reaffirmed its analysis in an earlier case – Byrne v. Avon Prods., Inc. 328 F.3d 379 (7th Cir. 2003) – that a long-term leave of absence could not be a reasonable accommodation under the ADA.  Although EEOC guidance “Employer-Provided Leave and the Americans with Disabilities Act” states that employers should consider long-term leaves of absence as reasonable accommodations, the Seventh Circuit disagreed, stating that such an interpretation was untenable and would transform the ADA into “a medical-leave statute – in effect, an open-ended extension of the FMLA.”  (A previous article on the guidance can be found here.)  Moreover, the Court in Severson stated that long-term medical leave does not enable an individual to perform the essential functions of the job and, therefore, cannot be considered a reasonable accommodation because at the time it is required the employee is not a qualified individual with a disability.  Finally, the Court noted that the ADA only requires “reasonable accommodations” and not “effective accommodations”, finding the a request for extended leave is only the latter.  Thus, the Seventh Circuit rejected plaintiff’s argument (which had been joined by the EEOC) that defendant should have granted him a reasonable accommodation of additional leave.

This case represents a stark deviation from both the EEOC’s guidance and the rulings of multiple other Circuit courts throughout the country setting forth that employers must evaluate requests for leave (including those extending beyond FMLA leave) under the ADA on a case-by-case basis to analyze whether granting the leave would be an undue hardship, so long as the request is not for indefinite leave. While this may change the way employers in the Seventh Circuit approach their analysis of leave as a reasonable accommodation under the ADA, employers should be careful not to over-extend this ruling:

  • First, the Severson holding itself does not totally preclude any post-FMLA as an accommodation under the ADA. Indeed, the holding leaves open the possibility that leave spanning a few days or even a couple of weeks could be a reasonable accommodation.
  • Second, some state and local laws governing disability discrimination and accommodation may have different language and standards that could result in a contrary decision. (And now, more than ever, state and local laws that are more restrictive than federal law are being passed on a regular basis.)
  • Third, employers outside the Seventh Circuit should remain diligent in individually analyzing requests for extended leave as an ADA accommodation, particularly in jurisdictions that follow the EEOC’s guidance or where Circuits have expressly ruled contrary to Severson.

No matter what jurisdiction an employer operates in, it is always important for employers to communicate with employees regarding expiration of leave and expected return dates while the employee remains out on leave.

On July 21, 2017, New Jersey Governor Chris Christie vetoed legislation that would have amended the New Jersey Law Against Discrimination to prohibit employers from requesting salary history information from prospective employees.  The legislation had passed easily though the State’s Democratically controlled Senate and Assembly, with votes along party lines.  With the upcoming gubernatorial election in November, employers may expect to see the bill revived and quite possibly enacted – particularly if the next governor is a Democrat. The proposed amendment may be read here.