What They Can’t See Might Hurt You

By Kathleen J. Jennings (kjj@wimlaw.com)

Is your company’s website covered by Title III of the Americans With Disabilities Act? If so, is it accessible to persons with visual disabilities? Have you ever even thought about it? Take a lesson from Hooters and give your website a checkup.

This week, the U.S. Court of Appeals for the Eleventh Circuit revived a lawsuit filed by a vision-impaired individual under the Americans with Disabilities Act demanding that the Hooters restaurant chain make its website accessible for those with vision impairment. Hooters had urged dismissal of the case on the ground that it had already prepared and implemented a remediation plan to come into ADA compliance in response to a different lawsuit. While the district court below agreed with Hooters, the 11th Circuit Court of Appeals held that the remediation plan does not render the second lawsuit moot.

Website accessibility lawsuits are on the rise and need to be on your company’s radar. More companies are receiving demand letters and/or lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business’ website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws. In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions. The majority were filed in New York and Florida (the Hooters cases, discussed above, were filed in Florida, as was a major case against Winn-Dixie).

The basic questions that you need to ask to determine if your website is covered by Title III of the ADA are:

  1. Does your website engage in commercial activity for the benefit of the general public; and if so
  2. Will the law treat your website as a public accommodation, or as the service of a public accommodation?

At present, the parameters of what constitutes “commercial activity” are unclear. On one end of the spectrum is the company website that is purely informational or educational in nature; that website is not likely to be covered by Title III’s accessibility requirements. However, a website that sells goods or services directly to the public may be regarded either as a sales or service establishment in its own right, or as a service of such an establishment, and may be covered by the ADA or comparable state laws. Furthermore, a website that does not actually sell any goods or services but engages in some form of commercial activity may still be subject to the ADA or a comparable state law if it facilitates sales.

In addition to the public accommodation issues, companies also need to be aware of lawsuits filed by applicants challenging online applications as being inaccessible to vision impaired persons. Most of those suits are being filed in California, and we will see how the courts handle them. Keep in mind that the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations. Title III, the public accommodation standard, generally requires (with exceptions) that businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. In contrast, the prohibition against discrimination on the basis of disability in employment requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation. The employer does not need to provide the employee or applicant’s requested accommodation as long as the accommodation provided is effective.

Because there is a lack of clear regulations on the issue of website accessibility, and with no regulations coming from the Department of Justice in the near future, website accessibility lawsuits are likely to increase, and it’s going to be like the “wild, wild west” until courts can sort out some of the legal issues. In the meantime, it would be a good idea to consult with counsel about your company’s potential exposure to these types of lawsuits.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

A Signature Can Be Worth Thousands of Dollars

by Kathleen J. Jennings (kjj@wimlaw.com)

There is a lot of discussion about the utility and enforceability of arbitration agreements to resolve employee disputes with their employers. As we noted in a recent blog post, last month, the U.S. Supreme Court held that employment contracts that contain arbitration clauses and class action waivers are enforceable. Employers find these agreements attractive because arbitration tends to be faster and less expensive than court litigation. However, a recent case out of the 5th Circuit reminds us that an employer seeking to enforce a written arbitration should not overlook a small but important detail: the signatures of the parties to the agreement.

In Huckaba v. Ref-Chem, LP, No. 17-50341, (5th Cir. June 11, 2018), the 5th Circuit Court of Appeals reversed the district court’s judgment compelling arbitration. Why? Because the express language of the agreement at issue required for it to be signed by both parties and because it was undisputed that Ref-Chem did not sign the agreement. That’s right, the company did not sign the agreement it was seeking to enforce.

Whether or not all parties must sign a written agreement for it to be binding is a matter of state contract law. The 5th Circuit interpreted the agreement at issue under Texas contract law. In support of its decision, the Court noted that the arbitration agreement contained: (1) a statement that “[b]y signing this agreement the parties are giving up any right they may have to sue each other;” (2) a clause prohibiting modifications unless they are “in writing and signed by all parties;” and (3) a signature block for the employer, Ref-Chem. Thus, the Court concluded, this express language clearly indicated an intent for the parties to be bound to the arbitration agreement by signing. The agreement also identified the parties in the first line as “[t]he organization referred to above (‘Employer’) and the Employee, whose signature is affixed hereto.” The Court found that this clause made clear the parties’ intention that the employer would sign the agreement. (The Court also acknowledged that Texas courts have held that a signature block by itself is insufficient to establish the parties’ intent to require signatures).

What did the absence of this one signature cost the company? The company probably spent thousands of dollars in attorneys’ fees briefing this issue at the District Court and then at the Circuit Court. Now the former employee has the opportunity to pursue her claims in court, which is going to cost the company even more money. Expensive lesson.

The takeaway: Know and understand your agreement. If you are not sure who should sign it, ask your attorney.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Does Your Company Have Its Own “Roseanne?”

By Kathleen Jennings (kjj@wimlaw.com)

Even if you did not watch the reboot of the Roseanne show, you are aware that the show was cancelled following a racist Tweet from its star, Roseanne Barr. Although Ms. Barr has a history of bizarre and insensitive behavior, her show was highly rated and popular, so it was somewhat surprising that the network went ahead and cancelled it. The cancellation sends the message that the network is not going to tolerate racist comments or behavior, even from successful “stars.” This could be further fallout from the #metoo movement.

Do you have a “Roseanne” in your workplace? That is the employee who is highly successful, highly productive or maybe a brilliant salesperson, but who also makes offensive comments and/or engages in inappropriate behavior. However, the comments and behavior are tolerated by upper management because nobody wants to run off the guy (or gal) who is a top performer. What could possibly go wrong?

Here’s what could go wrong—a lawsuit or multiple lawsuits from other employees. If your “Roseanne” regularly makes racist, sexist, ageist or other types of remarks that show a discriminatory animus toward employees who are in protected classes, eventually one or more of those offended employees (or more likely, former employees) is going to become fed up and go to the EEOC and then to an attorney to file a lawsuit. What is the company’s defense? That this employee was too successful to discipline or discharge? That is not a defense; it is an invitation for a jury to award punitive damages.

What should the company do? If the company knows (because an employee has complained) or should know (because the behavior is so open and obvious) that an employee is making racist, sexist, ageist, or otherwise discriminatory remarks toward employees, federal law (and some state laws) require the company to take prompt, effective remedial action, regardless of how much money the offender makes for the company. The remedial action must be designed to stop the discriminatory remarks. Keep in mind also that these discriminatory remarks could be used by an employee as evidence of discriminatory animus in a claim that the employee was denied a promotion or raise or was terminated for discriminatory reasons.

The company may be tempted to accept these charges or lawsuits as the cost of doing business and keeping its “Roseanne” around, as long as he or she is making money for the company, balancing the lawsuits costs against the profits generated by the “Roseanne.” The company needs to also factor in non-monetary costs—impact on employee morale that results in excessive employee turnover, increased recruiting and training costs, and loss of valuable talent, as well as the impact on the company’s reputation as a workplace and a brand (especially if “Roseanne” is spouting the epithets to customers and potential customers). Is your “Roseanne” really worth it?

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

U.S. Supreme Court Approves Class Action Waivers

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, by a 5-4 decision along ideological lines, the U.S. Supreme Court held that employment contracts that contain arbitration clauses and class action waivers are enforceable. This ruling was not terribly surprising in light of the makeup of the Court, and it is considered a big win for employers.

What does this ruling mean? It means that employers can enforce written agreements with employees that require the employees to take any claims against the employer to arbitration (rather than into court) and that prohibit employees from bringing their claims as part of a class action.

Arbitration is generally faster and less expensive than court cases. Arbitration decisions are also harder to appeal than court decisions. Many employers would prefer to have employment claims heard by a single arbitrator than by a judge and jury.

The ability to enforce waivers of class action claims is likely to have major impact on employee wage and hour claims. Plaintiffs’ attorneys have embraced wage and hour collective actions as a way to get the most “bang for their buck.” In those collective actions, the individual members of the collective group often have to do little more than to sign an opt-in form to participate and eventually get a piece of a settlement or judgment. Requiring each individual to go to arbitration on his/her claim is likely to reduce the number of folks who pursue their claims.

Does your company need an arbitration agreement that contains a class action waiver? The attorneys at Wimberly Lawson can tailor one to the needs of your business. You can contact any of our attorneys at (404) 365-0900.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Repeatedly “Suggesting” That an Employee Date a Client: That Can Be Sexual Harassment

By Kathleen Jennings (kjj@wimlaw.com)

A recent unpublished decision out of the Fifth Circuit Court of Appeals addresses the issue of whether a manager’s conditioning of employment benefits on a subordinate employee’s giving sexual favors to a third party, such as a client, constitutes quid pro quo sexual harassment. (Davenport v. Edward D. Jones & Co., 5th Cir., No. 17-30388, unpublished 5/16/18). The Fifth Circuit said that it does.

Quid pro quo sexual harassment occurs when a supervisor or manager conditions a job benefit or detriment on a worker performing sexual favors. At issue in the Davenport case was whether the requesting supervisor or manager must be the intended recipient of those favors. The plaintiff, Davenport, alleged that her supervisor interfered with her receipt of a bonus and made her work environment so intolerable she was forced to quit after she refused his attempts to get her to date a wealthy prospective customer.

The court rejected the company’s argument that a worker must show that a supervisor was the intended recipient of the proposed sexual favors to establish quid pro quo harassment. The Court stated that because the supervisor made the requests, he engaged in the sexual harassment, and it is of no consequence that a third-party was to be the beneficiary.

I will note that the plaintiff may have won the battle on the appropriate standard for quid pro sexual harassment, but she ultimately lost the war; her case was dismissed for various reasons, including her failure to exhaust her administrative remedies because she did not include some of her allegations in her EEOC Charge.

Pro tip: It is never a good idea for a supervisor or manager to discuss a subordinate employee’s dating life, and that includes making “suggestions” about who they should date. It is an even worse idea to “suggest” that the subordinate employee would benefit from dating the superior or a customer or client. An employer can be held strictly liable for this kind of sexual harassment.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

NLRB to Tackle Joint Employer Standard With Some Rulemaking

By Kathleen Jennings (kjj@wimlaw.com)

The NLRB’s standard that determines whether two or more entities are “joint employers” has been marked by uncertainty in recent months. It looks like the NLRB intends to resolve that uncertainty by using the rulemaking process. The NLRB rarely uses the rulemaking process, so when it does, it is generally a big deal.

As we discussed in a previous blog post, the NLRB’s joint employer standard underwent a major change during the Obama administration. The Obama era standard, set forth in Browning Ferris Industries, was controversial because it reversed 30 years of NLRB precedent and made the standard to prove a joint employer relationship less stringent, holding that a joint employer relationship could be supported by evidence that a company merely had indirect or potential control over workers who were formally employed by another entity.

Late last year, the Trump NLRB issued a decision, Hy-Brand Indus. Contractors, Ltd, which overruled the Obama era standard issued in Browning Ferris Industries. Hy-Brand took us back to the previous standard, under which multiple entities could be considered joint employers of a group of employees only if each had exercised direct and immediate control over a group of employees.

However, due to some possible ethical violations, the Hy-Brand decision was vacated.

Now, the NLRB has begun the internal process necessary to consider rulemaking on the joint-employer standard. Any proposed rule would require approval by a majority of the five-member Board, and the next step would be the issuance of a Notice of Proposed Rulemaking.

“Whether one business is the joint employer of another business’s employees is one of the most critical issues in labor law today,” says NLRB Chairman John F. Ring. “The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers’ willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.”

Any proposed rule must be published in the Federal Register and the public will have a specified time period to review the proposed rule and submit public comments on it. We’ll be watching for more developments on this issue.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Some Very Expensive Age Discrimination at Seasons 52

By Kathleen J. Jennings

Last week, we talked about a case where age discrimination was an issue in an employee termination. This week, we bring you news of a significant settlement of a case which involved age discrimination in hiring.

Seasons 52, a national, Orlando-based restaurant chain and part of the Darden family of restaurants, will pay $2.85 million and provide significant equitable relief to settle a nationwide class age discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced on May 3.

The EEOC’s lawsuit sought relief for applicants age 40 and older that had been denied front-of-the-house and back-of-the-house positions at 35 Seasons 52 restaurants around the country. During the course of the litigation, over 135 applicants provided sworn testimony that Seasons 52 managers asked them their age or made age-related comments during their interviews, including: “Seasons 52 girls are younger and fresh,” “Most of the workers are younger,” “Seasons 52 hires young people,” or “We are really looking for someone younger.” The company also hired applicants age 40 and older at a significantly lower rate than applicants under the age of 40. Considering the comments made by the managers, that is not a very surprising result.

The consent decree resolving the case sets up a claims process that will identify and compensate those affected individuals age 40 and older who applied to Seasons 52 for a front-of-the-house or back-of-the-house positions at 35 Seasons 52 restaurants but were denied a position on the basis of age.

In addition to the monetary relief, the decree requires significant changes to Seasons 52’s recruitment and hiring processes. It also includes an injunction preventing Seasons 52 from discriminating on the basis of age in the future and requires the company to pay for a decree compliance monitor, who is charged with ensuring that the company does not discriminate further and complies with the decree’s terms.

“As we commemorate May as Older Americans Month, we should be mindful that age discrimination continues to keep too many older, experienced American workers out of the workforce – many of whom are not working as a matter of choice, but as a matter of need,” said EEOC Acting Chair Victoria A. Lipnic.

Pro tip: As this case demonstrates, hiring managers need to focus on the requirements for the job and an applicant’s ability or inability to meet those requirements, and not the applicant’s relative youth or freshness.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.