Virginia Business Litigation Lawyer Blog

The Equal Employment Opportunity Commission (EEOC) claims a Kmart Super Center in Norfolk, Virginia, fired a store greeter because he used a cane, in violation of the Americans with Disabilities Act (ADA). In a lawsuit filed in the United States District Court for the Eastern District of Virginia, the EEOC alleges that the employee used a cane to walk and stand due to his spinal stenosis, a physical impairment of his back. His back problems did not prevent him from performing his duties as a greeter. Nevertheless, the suit claims, when he was observed using the cane, Kmart terminated his employment.

Prior to terminating the employee, Kmart allegedly refused to allow him to use the cane, even though his condition made it difficult to stand or walk without one, and his job required both. The EEOC filed the lawsuit only after Kmart refused to settle.

The EEOC is seeking most of the remedies permitted under the ADA, including reinstatement of the employee's job (or placement into a substantially equivalent position), back pay, compensatory damages, and punitive damages for intentional discrimination. The EEOC is also seeking an injunction (as it usually does in the ADA cases it brings) prohibiting discriminatory practices and compelling Kmart to adopt and execute a variety of policies, practices, and training programs to clarify to their employees and the general public that Kmart will takes steps to ensure it does not discriminate against persons with disabilities.

Title I of the ADA requires employers with 15 or more employees to provide qualified individuals with disabilities the same employment benefits and opportunities as everyone else, provided the employers can make any necessary accommodations without experiencing undue hardship. The employment privileges to which the ADA applies include recruitment, hiring, training, compensation, promotions, and even social activities. For more information, see Your Rights as a Disabled Employee.

Both the Americans with Disabilities Act (ADA) and the Virginians with Disabilities Act (VDA) prohibit stage agencies and public entities from discriminating against people with disabilities, or denying to them the benefits of their services, programs, or activities. On June 4, 2009, Virginia's highest court held that the Virginia Lottery, a state agency established to generate revenue to be used for public purposes, must comply with these laws and ensure that disabled persons are not excluded from participation in the lottery.

At issue was whether the lottery operation constitutes a "program, service, or activity" within the meaning of the ADA and VDA.  A group of disabled plaintiffs, all of whom use wheelchairs, sued the Lottery in Richmond, claiming that several retail outlets lacked accessible parking spaces, ramps, and paths of travel for disabled persons.  The Lottery argued that it was exempt from the ADA and VDA because it did not offer a program, service, or activity within the meaning of those statutes.  While the Circuit Court agreed with that argument, the Supreme Court reversed, finding that the Virginia Lottery does operate a "program, service, or activity" and therefore must conduct its operations in compliance with the ADA and the VDA.

The tricky part is determining how, exactly, accessibility is to be achieved. The only party responsible for complying with the ADA with respect to a particular challenged government program is the party with control over that program. (See Bacon v. City of Richmond, 475 F.3d 633 (4th Cir. 2007)).

The Virginia Lottery is the entity that operates the lottery, but it is permitted to license authorized agents--independent retail stores--to sell lottery tickets. The court acknowledged that the Lottery doesn't have the authority or power to require private businesses to comply with the ADA or VDA. The Lottery cannot simply construct wheelchair ramps on the premises of the various lottery retailers. At the same time, however, the court found that the Lottery has a broader obligation to ensure its operations are conducted in compliance with the laws.

How then, is the Virginia Lottery to comply with its obligations to disabled persons when it lacks the power to force its retailers to do the same? That is a question for another day, to be determined by the trial court when the case is returned to it. The Supreme Court suggested the remedy might entail something short of ramp construction, in that "accessibility" might be achieved by means other than physical.

Qualified individuals with disabilities are entitled to an equal opportunity to benefit from the full range of employment-related opportunities available to others.  The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace (as well as in government and other contexts) on the basis of disability.  It applies to employers with 15 or more employees and covers recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment.  The ADA also restricts the questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless doing so would result in undue hardship.

To be protected by the ADA, one must qualify as having a "disability" (or as having a close relationship with a disabled person) as that term is defined in the Act.  Under the ADA, a disabled person is: (1) one having a physical or mental impairment that substantially limits one or more major life activities, (2) a person who has a history or record of such an impairment, or (3) a person who is perceived by others as having such an impairment. See 42 U.S.C. § 12102(2).  The ADA does not specifically list or identify all possible impairments that would be considered disabilities.

Continue reading "Your Rights as a Disabled Employee" »