Today’s blog entry takes a page from Richard Hunt and how he often blogs in his accessibility defense blog. That is, I’m going to briefly summarize a few cases all at once. That way, I will clear out some of the backlog in my blogging pipeline. I was having trouble finding a case to take a deep dive into, and so I decided to take this approach. Even though the approach is different than usual, I still offer takeaways in the discussion.

I

Gloeckner v. Kraft-Heinz Foods Company185185194199199199 decided by the District Court of Oregon on March 9, 2021. The key for this case is overtime can be an essential function of the job. However even if it is an essential function of the job, the question is whether the person can perform the essential functions of the job with or without reasonable accommodations. Defendant also failed to engage in the interactive process with respect to exploring reasonable accommodations with respect to overtime. The takeaways here are always engage in the interactive process. Also for every essential function of a particular job, the question is whether that function can be performed with or without reasonable accommodations.

II

Reyazuddin v. Montgomery County, Maryland186186195200200200, a published decision decided by the Fourth Circuit on February 24, 2021. Here after receiving a jury verdict in the plaintiff’s favor but receiving nothing in compensatory damages, the defendant transferred the plaintiff as she originally desired to another position. The court then denied equitable relief on that basis. Plaintiff then sought attorney fees. Defendants argued that the plaintiff was not a prevailing party because the catalyst theory is not how it works when it comes to attorney fees. The court wasn’t buying it because the plaintiff actually received a favorable jury verdict notwithstanding the plaintiff not getting any compensatory damages. The takeaway here is that what is a prevailing party is more complicated than at first blush. Here while there was no continuing jurisdiction, plaintiff did win a jury verdict. So, plaintiff gets attorney fees as a prevailing party. We have talked before in our blog before about a consent decree rather than a settlement being useful to make sure attorney fees are there if you are on the plaintiff side. See here for example187187196201201201.

III

Brown v. Los Angeles Unified School District188188197202202202, a published decision from the Court of Appeal of the state of California for the second Appellate District decided on February 18, 2021. Here, the plaintiff alleged that the school system’s Wi-Fi system was making her sick. The defense moved to dismiss and the trial court granted it, i.e. what California calls granting a demurrer. The appellate court reverses saying that the California disability nondiscrimination law goes further than the ADA and therefore, whether the ADA recognizes getting sick through Wi-Fi is a disability is irrelevant. Also, a failure to accommodate is a separate cause of action. There was a concurring opinion expressing a worry about the proliferation of experts and how allowing a Wi-Fi makes you sick claim to proceed will open the floodgates. The takeaways here are state laws can go further than the ADA. The ADA just sets a floor and not a ceiling. Also, jurisdictions vary on whether a failure to accommodate is a separate cause of action.

IV

Bayer v. Neiman Marcus Group, Inc.189189198203203203, an unpublished decision from the Ninth Circuit decided January 26, 2021. Here, plaintiff loses a bench trial and appeals. The Ninth Circuit reverses and remands. What happened in this case is that after the plaintiff returned from medical leave, Neiman Marcus denied his request to modify his work schedule to accommodate his ADA qualifying medical condition. Shortly after that, plaintiff filed an administrative charge with the EEOC alleging failure to accommodate. The same day, Neiman Marcus present Bayer with the mandatory arbitration agreement. That mandatory arbitration agreement mandated arbitration for administrative charges already filed and also purported to change the applicable statute of limitations. It also gave Neiman Marcus the right to reserve for itself the power to amend, modify, or revoke the agreement terms at any time with 30 days notice to the employee. The plaintiff refused to sign and filed a second EEOC charge claiming that Neiman Marcus interfered with his rights in violation of the ADA. The court agrees and hold that an employer interferes with ADA rights when it knowingly compels an employee with a pending EEOC charge to a false choice of either resigning or consenting to an unconscionable arbitration agreement that specifically targets ADA rights.

The takeaways from this case are several: 1) arbitration agreements should focus on acts in the future and not in the past; 2) arbitration agreements do not get to change existing statute of limitations; 3) unilaterally having the power to amend, modify, or revoke existing arbitration agreements is problematic; and 4) while you hear a lot about retaliation claims, interference claims are also a possibility under the ADA as well. See this blog entry for example190190199204204204.