EEOC – Overlawyered

ADA and disabled rights roundup

Walter Olson — Mon, 18 May 2020 10:21:24 +0000

If you think reopening a retail business with new distancing rules is a challenge, wait till you see the interplay with the ADA, as I explain in my new post at Cato;
Court dismisses class action against Wendy’s on behalf of disabled persons unable to use after-hours drive-up service as a walk-up [Davis v. Wendy’s International, a pre-pandemic case; earlier here, here, and here on ADA complaints regarding drive up windows]
“Why is subway accessibility so expensive? It’s not just about installing new elevators.” [Annie McDonough, City and State NY]
“After DOJ Letter on Website Compliance, The ADA Guessing Game Continues” [John D. McMickle, WLF] ADA filing mills hit condo and co-op boards [Frank Lovece, Habitat] Serial plaintiff files web access suit against Vermont bicycle maker [Bicycle Retailer]
Limousine service to pay $30,000 for refusing to hire deaf driver [EEOC press release]
Colorado homeowner’s association told to pay $50,000 after failing to allow woman to stay in the complex with her emotional support dog [Associated Press] “Do We Have to Allow Dogs in Our Workplace? Maybe. Maybe Not.” [Daniel Schwartz] Trucking company will pay $22,500 after asking driver to pay fee to bring service dog along in truck to help with his anxiety [EEOC press release]

Tags: disabled rights, EEOC, service animals, transit, web accessibility

ADA and disabled rights roundup is a post from Overlawyered - Chronicling the high cost of our legal system

COVID-19 pandemic roundup

Walter Olson — Fri, 13 Mar 2020 09:56:01 +0000

Certificate-of-need laws in 38 states restrict hospital bed capacity by giving competitors a lever to object. More beds would have helped with emergency preparedness [Jeffrey Singer; more from Eric Boehm; bed crisis feared within weeks]
White House, Congress negotiate on liability-limit measure aimed at freeing up 31 million expired but usable masks; “3M and Honeywell don’t feel comfortable providing them without assurances they won’t be sued.” [Michael Wilner, McClatchy; latest on HHS proclamation] Between death, business interruption, and enormous disruption to business practice, a landscape of litigation opens up [Bob Van Voris et al., Fortune]
Proposed executive order would bar import of critical medical supplies from China, closing supposed “loophole” that could save your loved one’s life as shortages of ventilators loom [Ana Swanson, New York Times; Greta Privitera, Politico Europe on triage decisions at Italian hospitals reeling under equipment shortages]
Courts canceling jury trials as virus spreads [Eric Turkewitz] Supreme Court building closes to public until further notice;
Newark, N.J. threatens to prosecute persons who make false statements about the pandemic [Mike Masnick, TechDirt (“a masterclass in how not to deal with the problem of misinformation about the coronavirus”); Eugene Volokh (while some kinds of lies can be criminalized consistent with the First Amendment, many of those relevant here cannot]
Memo to HR: EEOC has advised “that taking the temperature of all employees may violate the ADA under some circumstances, but has indicated that the rules may change during a pandemic” [Daniel Schwartz; employee temperature checks in Singapore]

Tags: COVID-19 virus, disasters, EEOC, First Amendment, free trade, hospitals, medical, public health

COVID-19 pandemic roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Discrimination law roundup

Walter Olson — Wed, 22 Jan 2020 11:02:50 +0000

In August the Fifth Circuit handed down an opinion enjoining guidance on criminal records in employment issued by the Equal Employment Opportunity Commission, an agency to which Congress has accorded no rulemaking powers. Importantly, the opinion casts doubt on the EEOC’s powers to act by guidance in many other areas as well [Federalist Society teleforum with Mark Chenoweth and Eileen O’Connor on Texas v. EEOC]
Trump signs “ban the box” measure that restricts criminal-record inquiries by federal contractors, not just the government itself [Thomas Ahearn, ESRCheck; Roy Maurer/SHRM]
Also on Federal contract compliance: “Will New Executive Orders Close OFCCP’s Highway to Enforcement Hell?” [Chamber Institute for Legal Reform]
“Europe ended its age of religious wars by carving out safe space for each of the contending faiths, guaranteeing that none of them would be able to absolutely crush the others. We ought to try that again.” [Andrew Koppelman, Balkinization on why he thinks Justice William Brennan might have preferred the “Fairness for All” bill (earlier) to the Equality Act; Scott Shackford]
“Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): ‘Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there.'” [IJ “Short Circuit” on Johnson v. Ohio Department of Public Safety]
Virginia employment law could lurch leftward given breadth of pending legislation [Hans Bader and more]

Tags: criminal records and hiring, EEOC, government contract compliance, sexual orientation, Virginia

Discrimination law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Discrimination law roundup

Walter Olson — Mon, 07 Oct 2019 10:01:45 +0000

Supreme Court reconvenes for new term and tomorrow will hear cases over whether Title VII ban on sex discrimination extends to sexual orientation and gender identity [SCOTUSBlog symposium with contributors including Richard Epstein, William Eskridge; Will Baude, Volokh Conspiracy; George Will; earlier here, here, here, etc.]
New York City Commission on Human Rights declares it a violation of anti-discrimination law to use the term “illegal alien” in workplace, rental, or public accommodation contexts “with the intent to demean, humiliate, or offend a person or persons.” Does it complicate matters that both federal law and the U.S. Supreme Court use “illegal alien” as a neutral descriptive? [Hans Bader]
Minneapolis passes law restricting landlords’ taking into account of tenants’ past criminal histories, evictions, credit scores [Christian Britschgi, Reason]
Obama-era Equal Employment Opportunity Commission (EEOC) mandated burdensome pay data reporting by employers. Will courts allow a course correction? [Federalist Society teleforum with G. Roger King and James A. Paretti Jr., earlier here and here]
Professor who directs social justice center at Washington, D.C.’s American University proposes new federal Department of Anti-Racism that would wield ample power to order everyone around along with preclearance authority over all “local, state and federal public policies”; also “no political appointees” [Politico via Amy Alkon; Kelefa Sanneh, The New Yorker with more on work of Prof. Ibram X. Kendi]
Late in its tenure, Obama administration began warning Fannie Mae that discouraging some of the riskiest mortgages (>43% debt-to-income) “could be seen as a violation of the Fair Housing Act.” Fannie and Freddie “quickly complied” and brought the punch bowl back out [Damian Paletta, Washington Post/MSN]

Tags: discrimination law, EEOC, immigration law, landlord tenant law, Minnesota, mortgages, NYC, sexual orientation, transgender

Discrimination law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Disabled rights roundup

Walter Olson — Fri, 23 Aug 2019 09:58:46 +0000

Housing authority in Meeker, Colorado, population 2,250, will pay nearly $1 million to settle suit over limits on emotional support animals [Niki Turner, Rio Blanco Herald-Times, Kathleen Foody, Associated Press/Colorado Sun, Stina Sieg, Colorado Public Radio]
Volume of web-accessibility suits continues to climb [Seyfarth Shaw; John Breslin, Florida Record] More on growth of this litigation [podcast with Karen Harned, NFIB, for Federalist Society Regulatory Transparency Project (earlier on pool lifts)] “DOJ Says Failure to Comply With Web Accessibility Guidelines is Not Necessarily a Violation of the ADA” [Minh Vu, Seyfarth Shaw, from last October] Second Circuit dismissal of web-access complaint in Diaz v. Apple, Inc. could be helpful to defendants [Joshua Stein and Shira Blank, National Law Review]
Report on ADA filing mills in Rochester and vicinity [Berkeley Brean, WHEC: first, second, third (colleges), fourth, fifth]
And more on New York mass filing operations: Inveterate suer of restaurants reaches Staten Island [Pamela Silvestri, SI Live] Finger Lakes wineries targeted [Jane Flasch/WHAM in February; Michael J. Fitzgerald, Finger Lakes Times] “Finkelstein has gone on a lawsuit-filing spree since getting his law license back in New York state in 2016,” and among his 50 ADA suits are some the named plaintiff says he didn’t know about [Julia Marsh, New York Post]
In EEOC-land no one can hear you honk [press release on EEOC lawsuit against limo service that declined to hire deaf driver]
“Washington Supreme Court Says Obesity Is a Disability” [Ben McDonald, and thanks for quote; earlier]

Tags: Colorado, disabled rights, EEOC, New York, New York state, obesity, pools, restaurants, service animals, web accessibility

Disabled rights roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Discrimination law roundup

Walter Olson — Mon, 17 Jun 2019 09:58:44 +0000

Can a law ban calls to police by the public that are based on stereotyping or bias? Grand Rapids may find out [Scott Greenfield]
Courts and EEOC have held that the federal ban on pregnancy discrimination encompasses a ban on discrimination related to abortion [Jon Hyman] Legislative proposal in Ohio, fortunately given little chance of passage, would make anti-vaxxers a protected group under state employment discrimination law [same]
“Finally Some Robust Research Into Whether ‘Diversity Training’ Actually Works – Unfortunately It’s Not Very Promising” [Jesse Singal, British Psychological Society Research Digest, earlier]
New EEOC employer reporting requirements represent “an order of magnitude increase in the amount of information the government wants” for one recreation management business [Coyote] How are federal agencies doing on civil rights issues in this administration? Federalist Society panel with Gail Heriot, Kenneth Marcus, Theodore Shaw, Timothy Taylor, moderated by Erik Jaffe;
When an outcry arose over its partnership decisions, “Paul, Weiss did what every other mainstream institution does today when accused of racial bias: it fell on its sword.” [Heather Mac Donald, City Journal via Eugene Volokh]
“Targeted Advertising and Age Discrimination: An Explainer” [Joe Ruckert, On Labor]

Tags: advertising, age discrimination, discrimination law, EEOC, Facebook, police, pregnancy discrimination, vaccines

Discrimination law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Discrimination law roundup

Walter Olson — Mon, 22 Apr 2019 09:52:25 +0000

Internal Google pay study “found, to the surprise of just about everyone, that men were paid less money than women for doing similar work.” [Daisuke Wakabayashi, New York Times] “What the Data Say About Equal Pay Day” [Chelsea Follett, Cato; Hans Bader]
Otherwise routine on-the-job injuries can have dire consequences for those suffering hemophilia, and a manufacturing company learns its “insurance costs could spike” as a result if it employs three hemophiliac brothers. Don’t think you can turn them away for a reason like that, says EEOC [commission press release on ADA settlement with Signature Industrial Services, LLC involving $135,000 payment and “other significant relief”]
Multnomah County (Portland), Oregon to pay $100,000 settlement to black worker who says she was retaliated against after complaining about “Blue Lives Matter” flag [Aimee Green, Oregonian; Blair Stenvick, Portland Mercury]
“The social justice madness of college campuses is now seeping into HR departments of large employers. The result is the rise of the woke corporation, and it might affect the way you work” [Toby Young, Spectator (U.K.)]
“The FDNY’s diversity monitor has cost the city $23 million in 7 years” [Susan Edelman, New York Post]
Before taking an exam required of federal employees in Canada, best to study up on intersectionality theory [Josh DeHaas on Twitter, GBA+, Tristin Hopper/National Post]

Tags: Canada, disabled rights, EEOC, Google, Oregon, sex discrimination

Discrimination law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Discrimination law roundup

Walter Olson — Mon, 28 Jan 2019 10:59:38 +0000

New EEOC chief data officer says machine learning algorithms may soon enable agency to predict, and deploy resources against, workplace bias before it happens [Paige Smith, Bloomberg Law]
“The BSO, in a statement, defended its pay structure, saying that the flute and oboe are not comparable, in part because the oboe is more difficult to play and there is a larger pool of flutists.” [Geoff Edgers, Washington Post/Allentown Morning Call]
Even they can’t comply: “The case was ironic since the commission is charged with eliminating discrimination in Pennsylvania.” [Matt Miller, PennLive, on the Pennsylvania Human Relations Commission’s jury loss in a race discrimination complaint] “Do as they say, not as they do: employees accuse Planned Parenthood of pregnancy discrimination” [Jon Hyman]
Fourth Circuit: maybe Title VII doesn’t create a right to swipe files from HR [Jon Hyman]
Although libertarians support legalizing marijuana, they should not support laws that bar employers from discriminating on the basis of marijuana use [Jeffrey Miron, Cato]
“Why do women earn less than men? Evidence from train and bus operators” [Valentin Bolotnyy and Natalia Emanuel via Tyler Cowen]
Minnesota jury orders women’s football team and league to pay $20,000 to transgender applicant turned away [Mary Lynn Smith, Minneapolis Star Tribune]

Tags: discrimination law, do as we say, EEOC, illegal drugs, music and musicians, sex discrimination, sports, transgender, workplace

Discrimination law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Medical roundup

Walter Olson — Mon, 21 Jan 2019 10:59:25 +0000

“How the Reformulation of OxyContin Ignited the Heroin Epidemic” [William N. Evans and Ethan Lieber, Cato Research Briefs in Economic Policy] Antiquated regulations on methadone need revision [Jeffrey Singer, Cato] Concept of addiction is constantly run together with that of dependence, and applied in such dubious areas as “social media addiction” [Singer]
EEOC sues Tennessee hospital over lapse of religious accommodation in its mandatory flu shot policy (but is a mask as effective as the vaccine?) [EEOC press release]
Free to Choose Medicine: a review [Thomas Hemphill, Cato Regulation magazine]
Texas law limiting med-mal suits: “Fifteenth Anniversary of Proposition 12” [Texans Against Lawsuit Abuse]
Time to include electronic components in the BAAA: “Biomaterials Access for the 21st Century” [Jim Beck]
Affordable Care Act’s incentive program punishing hospitals for readmissions had unintended consequences, we know now. Were some of them lethal? [Tyler Cowen on Rishi K. Wadhera, Karen E. Joynt Maddox and Robert W. Yeh, New York Times]

Tags: EEOC, FDA, hospitals, medical malpractice, ObamaCare, opioids, Texas, vaccines

Medical roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Hospital to pay $89,000 for failing to accommodate employees who objected to flu shots

Walter Olson — Tue, 20 Feb 2018 05:05:22 +0000

The Equal Employment Opportunity Commission has announced that Mission Hospital in Asheville, N.C. will pay $89,000 for failing to accommodate employees “who declined flu vaccinations based on their religious beliefs.” [EEOC press release] Mission had in fact agreed to exempt employees from the flu shot based on religious objections, but required that they declare their intention ahead of time. And that turned out to be not accommodating enough, since not requiring that extent of advance notice would not in the EEOC’s view have posed an undue hardship on the employer — hence the expensive lesson.

At our religious discrimination tag can be found cases of employees who claimed a Title VII religious discrimination right not to serve alcoholic drinks as part of the duties of a flight attendant, not to haul beer as part of a job as a trucker, not to participate in an employer’s hand-scanner system for fear that it was connected to the Biblical “Mark of the Beast,” and to take prayer breaks in groups as large as 11 at an employer that did not think it could spare that many workers off the floor at the same time.

Under federal law enacted in 1972, employers regularly come under legal constraint to grant such accommodations to workers of many different religious sects. Although from much of the current debate one might imagine that liberals were historically skeptical of accommodation requirements, the actual history is more complicated. As I wrote a while back, “Surprisingly or otherwise, the pressure for federal law to become more indulgent toward private employees’ demands for religious accommodation [has] come both from liberal lawmakers like John Kerry and Hillary Clinton and from conservatives like Rick Santorum and Bobby Jindal.”

Under the elastic “undue hardship” standard, employers may face much uncertainty as to how much disruption of their business they must put up with in the name of accommodation. The flu-shot example suggests that risks to co-workers, customers, and the general public might sometimes enter the calculus as well — an expensive guessing game at best.

P.S. I’ve got a post at Cato making a related point: is it really libertarians who should catch flak for being too indulgent toward persons who want to be excused from vaccination?

Tags: EEOC, hospitals, public health, religious discrimination, vaccines

Hospital to pay $89,000 for failing to accommodate employees who objected to flu shots is a post from Overlawyered - Chronicling the high cost of our legal system