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Surge in ADA Disability Lawsuits to Continue in 2013 with Restaurant and Foodservice Employers in Crosshairs

For 2013, food service employers can expect a continued aggressive approach from the Equal Employment Opportunity Commission (“EEOC”) as to violations of the Americans with Disabilities Act (“ADA”) in the restaurant industry.  The significant increase of ADA charges and lawsuits by the EEOC and private claimants, which began in early 2012, shows little sign of abating in the new year.

Back in 2008, Congress passed the Americans with Disabilities Act Amendment Act (“ADAAA”), which was intended to counter a series of U.S. Supreme Court decisions that significantly limited employees’ ability to assert and prevail in disability lawsuits.  Under the ADAAA, and the EEOC’s final regulations, approved in 2011, the definition of what constitutes a disability was significantly broadened.  As a result, employees who previously would not have been considered disabled under the ADA, now fall under its statutory protections.  Prior to the amended Act, employers could often prevail in litigation on the basis of whether the employee actually was considered disabled under the narrow interpretations of the Supreme Court decisions.  With the new broad definition, most cases now hinge on whether the employer reasonably accommodated the employee’s disability..

One source of increased litigation and attention from the EEOC is when the ADA intersects with the Family and Medical Leave Act (“FMLA”) as to leave for a serious medical condition.  Previously, if an employee had exhausted all twelve weeks of FMLA leave and any other available leave, generally they could be terminated without employer liability.  However, the EEOC recently has taken the position that once leave is exhausted under the FMLA, this can trigger an employer’s affirmative duty to provide a reasonable accommodation  to an employee’s disability, which can include providing additional leave.  Under this scenario, employees who were terminated after exhausting FMLA leave are asserting EEOC Charges and filing lawsuits under the ADA.  Employers are also being forced to agree to high dollar settlements with the EEOC to avoid the prospect of the federal agency filing suit on behalf of employees and former employees.

As I’ve previously addressed in other articles, the EEOC in recent years has targeted franchisees and food service employers for violations of Title VII in regard to the issue of sexual harassment of teenagers and younger employees in the workplace.  However, the industry is now seeing the EEOC focus on disability claims. ( See “Settlement of EEOC Lawsuit Against Wendy's Franchisee Offers Lesson").  To safeguard themselves from ADA claims and the more aggressive approach of the EEOC, those in the food service industry should review all workplace policies and practices, including hiring policies, to ensure compliance with the ADA.  The EEOC has provided an on-line publication “How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers” which can be found at http://www.eeoc.gov/facts/restaurant_guide.html

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About Mark Fijman

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Mark Fijman specializes in labor and employment issues relating to the restaurant and hospitality industry, including Fair Labor Standards Act ("FLSA") compliance. He is an attorney in the Labor and Employment Section of law firm Phelps Dunbar, LLP’s Jackson, Mississippi office. He can be contacted at (601) 360-9716 or FijmanM@Phelps.com.

Fijman represents and advises employers regarding federal and state employment laws dealing with race, age, disability, gender, national origin and religious discrimination and in administrative proceedings before the Equal Employment Opportunity Commission. His practice includes representing employers seeking to enforce non-competition/non-solicitation agreements and pursuing injunctive relief for improper use of proprietary information.He routinely counsels on issues ranging from overtime questions to discipline and termination decisions. Direct phone: (601) 360-9716.  Phelps Dunbar, LLP has offices in New Orleans, LA, Baton Rouge, LA, Houston, TX, Tampa, FL, Mobile, AL, Raleigh, NC, Jackson, MS, Gulfport, MS, Tupelo, MS and London, England.

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