Employment Matters Blog - Department of Justice

Revised ADA Standards for Accessible Design Go Into Effect

Martha Zackin — Tue, 20 Mar 2012 11:59:09 -0500

The Justice Department announced that the new ADA Standards for Accessible Design (“Standards”) went into effect last Thursday, March 15. The Standards were adopted as part of the 2010 revisions to the ADA regulations. The new requirements will provide accessibility for more than 54 million persons with disabilities at facilities subject to Title II of the ADA (state and local government buildings) and Title III of the ADA (public accommodations and commercial facilities).

]]>The 2010 Standards create new accessibility requirements for courtrooms, amusement rides, marinas and boating facilities, golf courses, swimming pools, and recreational play areas. Many of the changes require that facilities be on a wheelchair accessible route, while other revisions create minimum percentages of amenities that must be fully accessible to disabled persons, including miniature golf holes, boat launch ramps, and exercise equipment. The new Standards also clarify the necessary sightlines in assembly areas, change the reach requirements for accessible access from wheelchairs, and create additional areas that must have clear floor space for wheelchairs.

The most onerous and technical requirements apply to new construction and alterations to existing accommodations, but the Standards require that all existing facilities, even those that are not modified or altered, remove barriers to accessibility when the removal is readily achievable.

The new Standards provide a safe harbor for elements that were required under and comply with the 1991 Standards. There is no safe harbor from new requirements, though, if the 1991 Standards did not previously establish guidelines.

The new Standards require all existing pools that are open to the public to either provide a sloped entry or install a mechanical chair lift. Because the 1991 Standards were silent on pool accessibility, there is no safe harbor available for public pools, and all such facilities must comply. In light of the cost and time required to make such large scale alterations, however, the Justice Department extended by 60 days the date of compliance for facilities to provide accessible entry to swimming pools, wading pools, and spas, and is contemplating further extending the date of compliance

Leaves of Absence as Religious Accommodation

Martha Zackin — Tue, 18 Oct 2011 09:28:31 -0500

We previously wrote about the EEOC’s increasingly aggressive position against inflexible leave of absence policies that provide for automatic termination of employment when an employee does not or cannot return to work at the end of a specified maximum leave period, such as when the employee has exhausted available FMLA leave. We have also written about the public hearing held by the EEOC in June 2011, which discussed the use of extended leaves of absence as reasonable accommodation for a disability covered under the expansive Americans with Disabilities Act Amendments Act. A new development suggests that employers may also need to consider the use of extended leaves of absence as accommodation for employees’ religious beliefs.

]]>As background, the ADA and Title VII both require employers to provide reasonable accommodation for, respectively, an employee’s disability or sincerely-held religious belief. Although both the ADA and Title VII allow an employer to refuse to provide a reasonable accommodation if to do so would pose an undue hardship, historically, the employer’s burden to show undue hardship when faced with a request for religious accommodation has been significantly lower than the burden to show undue hardship under the ADA.

Until now…

On October 13, 2011, the Department of Justice announced that it had settled the first lawsuit brought under a pilot program designed “to ensure vigorous enforcement” of Title VII against governmental employers by increasing cooperation and communication between EEOC and the DOJ, which is tasked with enforcing Title VII against state and local government entities. Specifically, the DOJ announced that it had settled a religious discrimination case against an Illinois school district, after the school district refused to grant a Muslim employee’s request for a nineteen-day leave of absence to perform Hajj, a religious pilgrimage. Previously, most reported lawsuits and settlements had focused on short-term leaves, such as those needed to allow an employee to observe the Sabbath or other religious holidays.

We are not aware of any other case where an employer was required to grant an employee’s request for a lengthy leave of absence to accommodate his or her religious beliefs. We expect to see more.

Immigration-Related Discrimination Alleged Based on I-9 Violations

Martha Zackin — Wed, 31 Aug 2011 17:00:00 -0500

By Douglas Hauer and Ari Stern

On August 26, the Department of Justice reached a settlement with Kinro Manufacturing Inc. with regard to allegations that it “engaged in a pattern or practice of discrimination against work-authorized non-citizens in the employment eligibility verification process” by requiring certain new hires to provide proof of employment eligibility beyond that required by law.

]]>Under the Immigration and Nationality Act (“INA”), employers are required to confirm that employees are authorized to work in the United States by requiring newly-hired employees to produce certain specified documents. More specifically, the INA requires new hires to verify identity and authorization to work in the United States by producing either: a document from “List A” of INS Form I-9; or a document from both “List B” and “List C” of Form I-9. Companies may not require new-hires to go “above and beyond,” by requiring them to produce more or different documents to verify employment eligibility. Kinro violated the law, according to the DOJ press release, by requiring non-citizens to produce documents “over and above” those required by law.

To settle the charges, Kinro agreed to: (a) pay a $35,000 fine; (b) alter its practices with regard to the employment eligibility verification process; (c) train human resources staff with regard to proper verification procedure; and (d) produce Forms I-9 for inspection, and produce pertinent reports regularly for twelve months.