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The National Law Forum - Page 507 of 753 - Legal Updates. Legislative Analysis. Litigation News.

DOJ Settlement Suggests Push to Expand ADA Coverage to All Websites and Apps

Morgan Lewis logo

The chance of future DOJ investigations justifies companies’ reviews of customer-oriented websites and apps for accessibility.

As consumers continue to use the Internet and their smartphones for their shopping in astonishing numbers, especially on this Cyber Monday, a recent Department of Justice (DOJ) settlement agreement raises questions and potential serious implications for any company with customer-oriented websites or mobile applications. The settlement agreement requires Ahold USA., Inc. and Peapod, LLC (Peapod) to make the www.peapod.com website and Peapod’s mobile applications accessible to the disabled, including persons with vision, hearing, and manual impairments. The settlement agreement demonstrates that the DOJ is reviewing and/or monitoring websites and mobile apps for accessibility and remains aggressive in its push to extend the requirements of Title III of the Americans with Disabilities Act (ADA) to all websites and mobile apps—even when the sites are unrelated to actual physical places of public accommodation. According to the settlement agreement, the DOJ concluded that www.peapod.com was inaccessible to the disabled after initiating a “compliance review” authorized by Title III and its implementing regulations.[1] Peapod, however, contested the DOJ’s conclusion that www.peapod.com and Peapod’s mobile apps were not ADA compliant.

The settlement agreement is particularly noteworthy because www.peapod.com is a purely online grocery delivery service, unrelated to a “brick and mortar” physical place of public accommodation. Most courts considering application of the ADA to websites require a website to have a “nexus” to a physical place.[2] In the past, the DOJ has required websites and mobile apps to be accessible—for example, in a March 2014 consent decree with H&R Block. However, unlike the H&R Block consent decree, which involved a website and mobile apps with a nexus to physical places, the Peapod settlement agreement requires that a website and apps with no nexus to a physical place be made accessible to the disabled. The Peapod settlement agreement therefore shows that the DOJ’s Notice of Proposed Rulemaking (NPRM), which is expected in March 2015, may require—in the words of the Abstract for the DOJ’s NPRM—the websites and apps of “private entities of all types,” even “[s]ocial networks and other online meeting places” to comply with the ADA.

The settlement agreement also indicates which standards the DOJ’s regulations eventually may require websites and mobile apps to meet. The settlement agreement requires www.peapod.com and Peapod’s mobile apps to comply with the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0 AA). The DOJ has required compliance with the WCAG 2.0 AA in the past, including in the H&R Block consent decree. The Peapod settlement agreement further requires Peapod to designate a Website Accessibility Coordinator to coordinate compliance with the agreement; adopt a Website and Mobile Application Accessibility Policy; post a notice on its home page on its accessibility policy, which would include a toll-free number for assistance and a solicitation for feedback; annually train website content personnel on conforming Web content and apps to the WCAG 2.0 AA; seek contractual commitments from its vendors to provide conforming content, or (for content not subject to a written contract) seek out content that conforms to the WCAG 2.0 AA; modify bug fix priority policies to include the elimination of bugs that create accessibility barriers; and conduct automated accessibility tests of the website and apps at least once every six months and transmit the results to the government. The settlement agreement, which stays in effect for three years, additionally provides that every 12 months, the Website Accessibility Coordinator must submit a report to the government that details Peapod’s compliance or noncompliance with the agreement. Peapod is not the only entity that will conduct testing under the settlement agreement. At least once annually, individuals with vision, hearing, and manual disabilities will test the usability of the Web pages. Notably, however, the settlement agreement does not impose damages or a civil penalty on Peapod.

There is a chance that the DOJ’s eventual regulations will differ from the standards to which the DOJ requires Peapod to conform. The settlement agreement accounts for that possibility. It states that if the DOJ promulgates final regulations on website accessibility technical standards during the term of the settlement agreement, the parties must meet and confer at either’s request to discuss whether the agreement must be modified to make it consistent with the regulations.

[1]. See 42 U.S.C. § 12188(b)(1)(A)(i) (“The Attorney General . . . shall undertake periodic reviews of compliance of covered entities under this subchapter.”); 28 C.F.R. § 36.502(c) (“Where the Attorney General has reason to believe that there may be a violation of this part, he or she may initiate a compliance review.”).

[2]. See, e.g., Nat’l Fed. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953–56 (N.D. Cal. 2011).

ARTICLE BY

Anne Marie Estevez
Beth S. Joseph
Christopher K. Ramsey
OF
Morgan, Lewis & Bockius LLP

Arizona Supreme Court Holds That The Uniform Trade Secrets Act Only Preempts Claims for Misappropriation of Trade Secrets, Not Other Confidential Information

In Orca Communications Unlimited, LLC v. Noder (Ariz. Nov. 19, 2014), the Arizona Supreme Court ruled that Arizona’s version of the Uniform Trade Secrets Act (the “AUTSA”) “does not displace common-law claims based on alleged misappropriation of confidential information that is not a trade secret.”  Orca, a public relations firm, filed suit against Ann Noder, its former president, for unfair competition after Noder left Orca to start a rival company.  Orca alleged that Noder had learned confidential and trade secrets information about “Orca’s business model, operation procedures, techniques, and strengths and weaknesses,” and that Noder intended to “steal” and “exploit” that information and Orca’s customers for her company’s own competitive advantage.  The trial court dismissed Orca’s complaint at the pleadings stage, concluding that the AUTSA preempts Orca’s “common law tort claims arising from the alleged misuse of confidential information,” even if such information is “not asserted to rise to the level of a trade secret.”  The court of appeals reversed in part, holding that the AUTSA preemption exists only to the extent that the unfair competition claim is based on misappropriation of a trade secret.

The Arizona Supreme Court considered the text of the 1990 AUTSA’s displacement provision, concluding that nothing in the language of the statute “suggests that the Legislature intended to displace any cause of action other than one for misappropriation of a trade secret.”  “If such broad displacement was intended, the legislature was required to express that intent clearly.”  The court assumed, but did not decide, that Arizona’s common law recognizes a claim for unfair competition.  Nor did it decide what aspects, if any, of the alleged confidential information in plaintiff’s unfair competition claim might fall within the AUTSA’s broad definition of a trade secret and therefore be displaced.  “That determination will not hinge on the claim’s label, but rather will depend on discovery and further litigation that has not yet occurred.

While the court acknowledged the split of authority among various states as to the preemptive effects of the Uniform Trade Secrets Act, it found that the “quest for uniformity is a fruitless endeavor and Arizona’s ruling one way or the other neither fosters nor hinders national uniformity.”  With its ruling, the Arizona Supreme Court joins courts in states such as Pennsylvania, Virginia and Wisconsin that have the narrowed the preemptive effects of the Uniform Trade Secrets Act.  Conversely, courts in other states including California, Indiana, Hawaii, New Hampshire, and Utah have held that Uniform Trade Secrets Act statutes should be read to broadly preempt all claims related to the misappropriation of information, regardless of whether the information falls within the definition of a trade secret.

ARTICLE BY

William B. Berndt
David L. De Bruin
Marcus D. Fruchter
Nicholas A. Gowen
Bradley P. Nelson
Steven A. Weiss
OF:
Schopf & Weiss LLP

APPLY NOW: Government of District of Columbia Now Hiring: Supervisory Attorney Advisor (Deputy General Counsel)

GOVERNMENT OF THE DISTRICT OF COLUMBIA

DEPARTMENT OF GENERAL SERVICES

                                                                                                            

The District of Columbia’s Department of General Services is seeking candidates for the Supervisory Attorney Advisor (Deputy General Counsel) position. The Deputy General Counsel will specifically provide management and support in the following areas: real estate transactions, leasing, real estate portfolio management, energy, sustainability and green initiatives and other agency operational issues as needed. The Deputy General Counsel reports to the General Counsel and will supervise at least two other attorneys.

The incumbent of this position will provide legal counsel and support to DGS in the following activities:

  • negotiating and preparing commercial leases and other real estate documents—rights of entry, license agreements, etc.;
  • handling real estate transactions;
  • providing legal support for lease administration, including preparing amendments, work agreements, estoppels, SNDA’s, extension requests, termination notices, default notices;
  • providing litigation support;
  • advising the agency in matters related to energy, sustainability and green initiatives; and
  • providing assistance, as needed, in all operational areas of the agency including: contracts, procurement, facility management, security services and human resources.

A successful candidate must:

  • have a law degree;
  • be a member of the District of Columbia Bar Association or eligible for waiver into the bar. If selected and not a member of the District of Columbia Bar, he/she must apply for membership and show proof of such prior to the commencement of employment.
  • have at least 10 years of experience in the following areas: local government, real estate, leasing and/or procurement law.
  • have the skill and ability to gather, develop, evaluate and analyze investigative information from a variety of sources to determine compliance with District government and federal statutes, rules and regulations.
  • have experience in negotiating, drafting and reviewing commercial real estate documents including drafting of commercial leases and land purchase and acquisition contracts.

How to Apply:

Applications for this vacancy must be submitted online at www.dchr.dc.gov for consideration. When completing applications, candidates submit resume and respond to specific ranking factors that will be used in the evaluation process. In responding to the ranking factors, please describe specific incidents of sustained achievements from your experience that show evidence of the level at which you are applying. You may refer to any experience, education, training, awards, outside abilities described in ranking factors. The information given in response to the ranking factors should be complete and accurate to the best of your knowledge, FAILURE TO RESPOND TO ALL RANKING FACTORS WILL ELIMINATE YOU FROM CONSIDERATION.

Deadline: Closing date for the vacancy announcements until 11:59 pm on December 12, 2014. 

Contact Information: All inquiries related to employment and job applications should be directed HR Answers, (202)442-9700—please reference agency (DGS) and vacancy number (26253).

  

2000 14th St. NW, 8th Floor  Washington DC 20009  |Telephone (202) 727.2800 | Fax (202) 727-7283

Department of Interior Announces January Auction Date for Martha’s Vineyard Wind Energy Leases

Mintz Levin Law Firm

On November 24th, the Department of the Interior’s Bureau of Ocean Energy Management (BOEM) announced that it would be auctioning off four commercial leases for the Wind Energy Area (WEA) south of Martha’s Vineyard on January 29th. The area to be leased, which is identical to the area proposed in the Proposed Sale Notice published this past June, encompasses more than 1,160 square miles of open water – a tract larger than the state of Rhode Island. The project is slated to become the largest off-shore wind tract in federal waters in the United States.

Martha's Vineyard Wind Energy

If and when it is fully developed, the Martha’s Vineyard WEA has the potential to increase wind generation capacity by four or five Gigawatts (GW). According to the BOEM, which framed the announcement as part of the Obama Administration’s ongoing efforts to curb carbon pollution and mitigate climate change, a fully-developed Vineyard WEA would support 800 turbines and produce enough energy to power 1.4 million homes in the United States. Secretary of the Interior Sally Jewell said the auction will “triple the amount of federal offshore acreage available for commercial-scale wind energy projects,” making it the largest competitive wind energy lease sale to date.

Several advocacy organizations, including the New England Fishery Management Council and the Massachusetts Audubon Society, had previously voiced concerns about possible harm to aquatic and aviary life, but the Bureau’s most recent Environmental Assessment (EA) concluded that “reasonably foreseeable environmental effects associated with the commercial wind lease issuance and related activities would not significantly impact the environment.”

Twelve companies are qualified to bid for the four leases, including Deepwater Wind New England, EDF Renewable Development, Energy Management, Fishermen’s Energy, Green Sail Energy, IBERDROLA RENEWABLES, NRG Bluewater Wind Massachusetts, OffshoreMW, RES America Developments, Sea Breeze Energy, US Mainstream Renewable Power (Offshore) and U.S. Wind. For more information about the auction announcement, please visit the BOEM’s website.

ARTICLE BY

Sahir Surmeli
Jordan M. Collins
OF
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

FTC Denies AgeCheq Parental Consent Application But Trumpets General Support for COPPA Common Consent Mechanisms

Covington BUrling Law Firm

The Federal Trade Commission (“FTC”) recently reiterated its support for the use of “common consent” mechanisms that permit multiple operators to use a single system for providing notices and obtaining verifiable consent under the Children’s Online Privacy Protection Act (“COPPA”). COPPA generally requires operators of websites or online services that are directed to children under 13 or that have actual knowledge that they are collecting personal information from children under 13 to provide notice and obtain verifiable parental consent before collecting, using, or disclosing personal information from children under 13.   The FTC’s regulations implementing COPPA (the “COPPA Rule”) do not explicitly address common consent mechanisms, but in the Statement of Basis and Purpose accompanying 2013 revisions to the COPPA Rule, the FTC stated that “nothing forecloses operators from using a common consent mechanism as long as it meets the Rule’s basic notice and consent requirements.”

The FTC’s latest endorsement of common consent mechanisms appeared in a letter explaining why the FTC was denying AgeCheq, Inc.’s application for approval of a common consent method.  The COPPA Rule establishes a voluntary process whereby companies may submit a formal application to have new methods of parental consent considered by the FTC.  The FTC denied AgeCheq’s application because it “incorporates methods already enumerated” in the COPPA Rule: (1) a financial transaction, and (2) a print-and-send form.   The implementation of these approved methods of consent in a common consent mechanism was not enough to merit a separate approval from the FTC .  According to the FTC, the COPPA Rule’s new consent approval process was intended to vet new methods of obtaining verifiable parental consent rather than specificimplementations of approved methods.  While AgeCheq’s application was technically “denied,” the FTC emphasized that AgeCheq and other “[c]ompanies are free to develop common consent mechanisms without applying to the Commission for approval.”  In support of common consent mechanisms, the FTC quoted language from the 2013 Statement of Basis and Purpose and pointed out that at least one COPPA Safe Harbor program already relies on a common consent mechanism.

ARTICLE BY

Shelton L. Abramson
OF
Covington & Burling LLP

Amazon Settlement with NLRB a Reminder for Employers — “Confidential” Wage Policies Violate the NLRA

Barnes Thornburg

Last week in a settlement with the NLRB, online retailer Amazon agreed to allow its largely non-union workforce to discuss pay and working conditions with each other without fear of discipline. The settlement, as reported by Bloomberg News which obtained a copy, required Amazon to rescind certain work rules that prohibited workers from sharing information with one another, although Amazon did not admit any violation of the NLRA.

Amazon’s work rule was considered too broad by the NLRB because it prohibited discussion of wages and working conditions, considered quintessential “protected concerted activity” under the NLRA. In Amazon’s case, the NLRB got involved when an employee was disciplined after voicing concerns about security in the employee parking lot. The employee apparently filed a charge with the NLRB protesting his discipline and this led the NLRB to examine not only the circumstances of the employee’s discipline, but to scrutinize Amazon’s policies as well.

This settlement serves as a reminder to all employers, both union and non-union, that policies which prohibit discussion of terms and conditions of employment are on their face unlawful under the NLRA.  It is tempting for employers to require that wages or other benefits be kept “confidential” for a variety of reasons, but enforcing such policies is an easy way to draw unwanted attention from the NLRB, especially given the Board’s current focus on protected concerted activity.

ARTICLE BY

Christine Holst
OF
Barnes & Thornburg LLP

U.S.-Centered Negotiations for Product Made and Sold Outside United States Do Not Constitute Sale or Offer for Sale in United States

Mcdermott Will Emery Law Firm

Halo Elecs., Inc. v. Pulse Elecs., Inc. and Pulse Elecs. Corp.

In a case exploring the limits of what constitutes a sale or offer for sale “within the United States” under 35 U.S.C. § 271(a), the U.S. Court of Appeals for the Federal Circuit found that sales were carried out outside of the United States and, even though they were partially negotiated in the United States, did not constitute an infringement of U.S. patent rights under § 271(a).  Halo Elecs., Inc. v. Pulse Elecs., Inc. and Pulse Elecs. Corp., Case Nos. 13-1472; -1656 (Fed. Cir., Oct. 22, 2014) (Lourie, J.) (O’Malley, J., and Hughes, J., concurring).

Halo accused Pulse of infringing its patents related to surface mount electronic packages containing transformers for mounting on a printed circuit board.  Pulse’s products were manufactured in Asia and the majority of its products were delivered to customers in Asia.  Pulse received the purchase orders for these products abroad.  However, Pulse engaged in pricing negotiations with its customers in the United States, and Pulse’s U.S.-based employees had to approve prices quoted by its agents when those prices fell beneath a threshold.  The district court granted Pulse summary judgment of non-infringement finding that its activities for these sales were insufficient to constitute a sale or offer for sale “within the United States.”  After a trial finding that the same products that did enter the United States infringed Halo’s patents, the district court found Pulse’s substantial invalidity defense negated the objective prong of willfulness under In re Seagate.  Halo appealed.

On appeal, the Federal Circuit panel affirmed that Pulse’s U.S.-based activities for its products manufactured and sold in Asia were not sales or offers for sale “within the United States.”  The Court noted that while a sale is not necessarily limited to the place of transfer of the tangible property, but may also be determined by the place where agreement to such a transfer takes place, extraterritorial applications of U.S. patent law were disfavored.  The Court found it was undisputed that the products at issue were manufactured, shipped and delivered abroad; that the purchase orders were received abroad; that the negotiations that occurred in the United States did not constitute a firm agreement to buy and sell; and that Pulse was paid abroad for its products.  Based on these facts, the Court found it need not reach Halo’s argument that the place of formation of a contract can be determinative of whether a sale has occurred “within the United States.”  The Court further explained that for an offer to sell to constitute infringement, the offer must be to sell a patented invention within the United States, and that Pulse’s actions therefore did not constitute an offer for sale cognizable under the Patent Act.  Finally, the panel affirmed the district court’s finding of no willfulness, agreeing that Pulse’s presentation of a substantial invalidity defense at trial negated the objective prong of the willfulness test.

Practice Note: In a concurrence, Judge O’Malley and Judge Hughes, while agreeing with the finding of no willfulness under current case law, urged the full court to reexamine its enhanced damages jurisprudence in light of the Supreme Court of the United States’ decisions in Highmark v. Allcare Health Management Sys., and Octane Fitness v. ICON Health & Fitness.  Specifically, the concurrence urged reconsideration of the two-part subjective/objective test required under Seagate; the requirement that willfulness be proven by clear and convincing evidence; whether de novo review is the appropriate standard on appeal; and whether willfulness must be decided by the court as a matter of law.

ARTICLE BY

Christopher L. May
OF
McDermott Will & Emery

China and Australia Conclude Landmark Free Trade Agreement Negotiations

Sheppard Mullin Law Firm

Summary

On November 17, 2014, China and Australia completed their negotiations for a China-Australia Free Trade Agreement (“ChAFTA”)by signing a Declaration of Intent which contained the essential elements of the free trade deal and commits both countries to draft the legal text of the agreement for signature at a later date.  This agreement ends almost a decade of free trade negotiations between China and Australia.  The ChAFTA is significant because it will initially lower and ultimately eliminate tariffs on a wide range of exports between the two countries boosting bilateral trade between the world’s second largest economy and a significant U.S. free trade partner in Asia.

“Best Ever” Trade Deal with China

Australian Prime Minister, Tony Abbott, described ChAFTA as the best ever between China and a Western country.  ChAFTA builds on Australia’s trade deals with Korea and Japan which account for Australia’s three largest export markets.  In the short term, ChAFTA will consolidate Australia’s competitive position in the resources and energy market by phasing-in zero tariffs on products including iron ore, coal, gold, and crude petroleum oils which comprise 4 of the top 5 leading exports (by value) from Australia to China.

ChAFTA will also reduce and eliminate tariffs on a wide range of Australia-produced agricultural products, foodstuffs and wine as Australia attempts to transition in the longer term to what commentators have described as a “mining to dining” export economy.

China has also offered Australia its best ever services commitments in an FTA (other than China’s agreements with Hong Kong and Macau) which includes new or significantly increased market access for Australian banks, insurers, securities and futures companies, law firms and professional service suppliers, education service exporters, as well as health, aged care, construction, manufacturing and telecommunication services businesses in China.

Importantly, ChAFTA will contain an Investor Dispute Settlement Mechanism (IDSM) which generally contain administrative, judicial and/or arbitral protections that enable companies to invest in China with greater confidence because an IDSM permits compensation claims against alleged government regulation that negatively impacts investments.

Promoting Chinese Exports and Investment in Australia

ChAFTA will promote further Chinese investment in Australia by, for example, raising the Foreign Investment Review Board (FIRB) screening threshold for private companies from China in non-sensitive areas from AS$248 million to AS$1,078 million.  However, FIRB will continue to screen proposed investments by Chinese State Owned Enterprises regardless of value.

ChAFTA will also increase China’s exports to Australia, in particular, of telecom equipment and parts, computers, clothing, domestic furniture and children’s goods which comprise China’s top 5 exported products to Australia.

Potential Effect on U.S. Trade

The potential impact of ChAFTA on U.S. trade cannot be determined at this stage.  In general, recent economic studies suggest that the effect  of “hub-and-spoke” free trade agreements where one country, in this case, Australia, acts as a “hub” by establishing two different bilateral FTAs with countries that retain their trade barriers on each other’s goods, i.e. U.S. and China, is of positive and significant effect on bilateral trade among all three countries.  However, these economic studies do not incorporate the rules of origin (“ROO”) which are an essential part of FTAs because they define the conditions under which the importing country will view a product as originating in an FTA partner.

Without the full text of the ROO for ChAFTA, it is not possible to indicate the potential for more Australian manufacturing using U.S.-origin components that would otherwise attract high duty if exported directly to China but may not if incorporated into goods in Australia.  However, based on the proposed tariff-reduction on imported Chinese telecom equipment and parts, and computers, ChAFTA does suggest the potential for increased manufacturing in Australia for the U.S. market using Chinese components that could not otherwise be imported directly into the U.S. without paying significant duty.

Under the ROO of the U.S.-Australia FTA, Chinese-origin components would need to satisfy any applicable tariff-shift and/or meet any applicable regional value content.  Alternatively, those Chinese-origin components that did not satisfy an applicable tariff-shift could not comprise more than the de minimislevel of 10% of the adjusted value of the good.

Finally, ChAFTA offers the potential for U.S. investors to structure their investments in China using an Australian entity by taking into account the final text of ChAFTA’s IDSM because there is currently no investor protection offered by a bilateral investment treaty between the U.S. and China.

ARTICLE BY

Neil Ray
Jiamu Sun
OF
Sheppard, Mullin, Richter & Hampton LLP

Employers in Illinois Take Note: Pregnancy Accommodation Amendments Go Into Effect January 1, 2015

Neal Gerber

As of January 1, 2015, the recently enacted pregnancy accommodation amendments to the Illinois Human Rights Act (“IHRA”) will go into effect, requiring many Illinois employers to update or change their policies and practices with regard to the expecting and new mothers in their workforce.  Read below for the highlights of the IHRA’s pregnancy-related amendments, and stay tuned for an announcement from our group about an upcoming breakfast training at which we will discuss the details of the amendments, along with other employment hot topics for 2015.

Which employers are covered by the amendments?  All private, non-religious employers in Illinois, regardless of the number of employees, will be covered by the new pregnancy-related provisions of the IHRA.  Note, most IHRA provisions generally apply only to employers with 15 or more employees in Illinois.  The Act’s pregnancy-related amendments, however, apply to all employers, regardless of size.

Which employees are protected by the amendments?  The amended IHRA prohibits discrimination based on, and requires employers to provide reasonable accommodations for, “pregnancy.”  “Pregnancy” is defined broadly under the Act to include “pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.”  Thus, the amendments generally will apply to applicants and employees who are expecting and who recently gave birth.

What do the amendments require?  Broadly speaking, the amendments impose an affirmative obligation on employers to offer reasonable accommodations for pregnancy and childbirth-related conditions.  Such accommodations may include:  more frequent or longer breaks; providing time and a private, non-bathroom space to express breast milk; physical accommodations such as seating and assistance with manual labor; modified or a part-time work schedule or even “job restructuring”; time off to recover from conditions related to childbirth; and/or leave “necessitated by” pregnancy, childbirth or medical “or common conditions” resulting from pregnancy or childbirth.

Importantly, under the amended IHRA employers may not require expecting or new mothers to just take leave, or to accept an accommodation that the applicant or the employee did not request.  The individual must agree to the form of accommodation being offered.  However, prior to providing the requested accommodation, employers will have the ability to require the requesting employee to submit medical proof of the need for that accommodation, to include a description of the advisable accommodation and its probable duration.

In addition, similar to the provisions of the federal Americans with Disabilities Act, the amended IHRA will not require employers to create new positions, discharge or transfer other employees, or to promote an unqualified employee in order to meet the “reasonable accommodation” requirement.  If the requested accommodation would pose an “undue hardship,” it need not be provided.  Employers should note, however, that the amended IHRA (similar to the ADA) places the burden of proving an “undue hardship” squarely on the employer, and meeting that burden is no easy task.  An “undue hardship” will be found to exist only if the requested accommodation is “prohibitively expensive or disruptive” when considered in light of certain specified factors, including the accommodation’s nature and cost, the overall financial resources of and impact on the facility or facilities involved in providing the requested accommodation, the overall financial resources of the employer, and the employer’s general operations.  Importantly, if the employer provides or would be required to provide the kind of accommodation being requested to other similarly-situated, non-pregnant employees, the amended IHRA will impose a “rebuttable presumption” that the requested accommodation would not impose an undue hardship.

Once an employee’s need for reasonable accommodation ceases and she relays an intent to return to her former position, the amended IHRA requires that the employer reinstate her to that former position or an equivalent position with equivalent pay, without loss of seniority or other benefits, unless, again, doing so would impose an undue burden.

The amended IHRA further requires that employers in Illinois post an Illinois Department of Human Rights-prepared or approved notice about the pregnancy accommodation amendments in the workplace, and also include appropriate information regarding employees’ rights under the amendments in their handbooks.

In short…  Considering that women compose nearly 50% of all workers in Illinois, it is important for employers to understand and ensure compliance with the IHRA’s new pregnancy-related amendments.  Any request for an accommodation made by an expecting or new mother must be evaluated thoughtfully, with the new statutory framework in mind.

ARTICLE BY

Sonya Rosenberg
OF
Neal, Gerber & Eisenberg LLP