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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

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Entries in ADA (38)


Sixth Circuit’s Panel Decision Isn’t Built Ford Tough

Earlier this month, the Sixth Circuit issued an en banc decision in the EEOC v. Ford Motor Co. matter concerning the ADA and telecommuting; finding that telecommuting up to four days a week was not a reasonable accommodation.  We have been following the opinion both initially and when the Sixth Circuit granted rehearing.  The en banc rehearing resulted in the Sixth Circuit reversing the earlier decision issued by a divided Sixth Circuit panel and affirmed summary judgment for Ford finding that regular and predictable on-site job attendance was an essential function of the employee’s job as a resale buyer.

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Nine Months Later Supreme Court "Delivers"

Yesterday the Supreme Court issued its much-anticipated opinion on the Pregnancy Discrimination Act in Young v. UPS vacating the Fourth Circuit’s (and District Court’s) grant of summary judgment in favor of the employer, UPS. We’ve previously discussed the background of the case here and here, but for our new readers, the general overview is that Ms. Young sued her employer UPS after it refused to accommodate her lifting restrictions during the course of her pregnancy. UPS’s policy was that it would make work accommodations in three discrete instances: 1) on the job injury; 2) after an employee fails a DOT certification; and 3) if an accommodation is necessary under the ADA. UPS argued that Ms. Young’s pregnancy fell into none of the three exceptions and thus no accommodation for her lifting restriction could be made and she remained out of work the whole of her pregnancy.

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Manic Monday: Gluten-Free - Terrible Tasting AND Discriminatory?

A few years ago, a temporary health issue involving one of his offspring forced your humble blogger into temporarily adopting a gluten-free diet.

Those were dark times – except for the pretzels, which were pretty okay.

Memories of this period came flooding back upon learning that P.F. Chang’s – purveyor of bland Chinese foodlike substances for the masses, is being sued under the Americans with Disabilities Act. Specifically, one Anna Marie Phillips alleges that the restaurant’s charging diners an additional dollar per item for gluten-free dishes discriminates against consumers with celiac disease.

P.F. Chang’s initial response to the suit was to point out that the surcharge is a function of restaurant economics. Rest assured that Verrill Dana’s Labor & Employment Group will keep you posted on developments in this story as they happen, although of course, you’ll just be hungry for more information an hour later.


Wacky Wednesday: Fear and Loathing in Elementary Education

Last week, the Sixth Circuit ruled that a former Ohio public school teacher who was suffering from pedophobia(the fear of young children), had not presented an Americans with Disabilities Act or Age Discrimination Claim. The Plaintiff requested the school district accommodate Plaintiff’s disability, pedophobia, by transferring her from her middle school position to a Spanish teaching position at the high school. No such position, however, was available, and therefore the Court found that the requested accommodation was unreasonable as an employer “need not create new jobs [or] displace existing employees.”

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New Hampshire Decision Clarifies Accommodation Request Threshold and Reminds Employers of Importance of Manager Training

On December 29, 2014, the District of New Hampshire issued a decision denying Summary Judgment and allowing a claim under the ADA to proceed to a jury after the former employee’s supervisor stated: “Your Asperger’s got in the way of your ability to interact with your boss, and we are tired of it,” while informing the former employee that his employment contract would not be renewed. Bellerose v. SAU 39, 13-cv-404.

The summary judgment record presented to the Court was filled with contradictory evidence, including medical documentation from the time in question that indicated the Plaintiff did not have Asperger’s Disorder. Plaintiff, however, presented a recent medical evaluation diagnosing Asperger’s Disorder. Viewing the facts in a light most favorable to Plaintiff, the Court accepted that the plaintiff was an individual with a disability within the meaning of the ADA. In determining that the ultimate termination and disability may be causally connected, the Court based it’s decision off the principal’s statement that the plaintiff’s “Asperger’s got in the way of [his] ability to interact with [his] boss.” As a result, the Court allowed the ADA discrimination claim to proceed.

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Seven Swans a Swimming Upstream Against the EEOC’s Wellness Program Agenda

On the seventh day of Christmas my true love gave to me another grouping of birds—excercising birds to be specific. I cannot tell if this is similar to receiving an exercise bike or treadmill for Christmas, a small nudge to get into shape, but even if that was not the intent, it reminded me to exercise, which reminded me of wellness programs and the EEOC’s recent infatuation with them. We have discussed wellness programs a lot in the last few months in large part because the EEOC has begun to bring enforcement actions against companies alleging that company wellness plans are violating the ADA, Title VII, or GINA.

Last month, the EEOC issued its agenda items for 2015. The agenda contains eight items (many of which are holdovers from the previous regulatory agenda), but the two highest priority items are plans to amend the ADA and GINA regulations to address a wellness plan’s financial inducement or health-risk-assessment requirements and how those items may violate federal prohibitions against disability or genetic information discrimination.

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