Maryland Business Law Blog

Do Businesses Now Have to Accommodate Allergies as if They Were Disabilities?

Posted by Edward Sharkey on Thu, 04/30/2015 - 04:00

Businesses continue to struggle with the legal definition of “disability” under anti-discrimination laws. One area that remains obscure is allergies. Does a seafood restaurant need to modify its kitchen to accommodate diners with allergies to shellfish? Can a parent with hay fever force his child’s soccer league to hold games indoors?

We previously posted about a lawsuit in which the DOJ claimed a university violated the Americans with Disabilities Act (“ADA”) by failing to provide students with celiac disease gluten free menu options. The university settled before any decision was made by the court.

We also summarized a Maryland court opinion upholding a verdict in favor of a parent who sued her son’s school for discrimination. She claimed to have an allergy to latex, and the school had declined to remove all latex objects from the premises.

Now, the restaurant chain P.F. Chang’s is facing a lawsuit alleging that their gluten free menu violates Title III of the ADA. The plaintiff claims that the restaurant discriminates against customers with gluten allergies by charging $1 extra for gluten free options. She demands an injunction to stop the surcharge, restitution, civil penalties, compensatory damages, and punitive damages.

From the outside looking in, P.F. Chang’s appears to be trying hard to accommodate allergic diners. The chefs created a new menu with 18 gluten free options. Gluten free items are served on plates with a special insignia to ensure they are not confused with non-gluten free dishes on the table. Is there a better friend to gluten free diners in the country? The chain was even voted the second most allergy friendly large restaurant by the Allergy Eats blog.

The CEO of the Celiac Disease Foundation weighed in on the case with some sympathy for the restaurant. She acknowledged the challenges faced by restaurants. She explained that the “Celiac Disease Foundation recognizes that restaurants bear a financial burden for the employee training and other accommodations that are required to serve meals that are safe for those with celiac disease.”

The plaintiff in the case points out, however, that certain items on P.F. Chang’s gluten free menu, such as vegetables, contain the exact same ingredients as the items on the regular menu but still incur the surcharge. She adds that the restaurant does not add surcharges for accommodations on regular menu items.

A decision in the case would provide greater clarity for all. If the court decides in favor of the plaintiff, restaurants will be tasked with the challenge of providing gluten free menu options at prices that do not reflect the higher cost of production. This is not to mention the numerous other ways businesses would have to accommodate customers with a variety of allergies. If the plaintiff loses, businesses would have some indication that there is a limit to what the law considers a “disability” requiring extra accommodation.

Alas, if history is a guide, the case will result in a settlement before trial providing little for those suffering from celiac disease, a fee for the lawyers, and nothing for businesses nationwide starved for guidance on a costly issue.

New Ordinances Restrict the Use of Background Checks by Baltimore City, Montgomery County, and Prince George’s County Employers

Posted by Edward Sharkey on Wed, 04/15/2015 - 04:00

We have frequently posted about the federal government’s aggressive actions against employers that use background checks in the hiring process. Now, businesses also need to worry about local laws that restrict the practice.

Such laws took effect in Montgomery and Prince George’s Counties in January 2015. Both Counties’ ordinances prohibit the use of background checks until an initial interview has already been conducted. And, if an employer in either County intends to rescind a conditional offer of employment after a background check, the applicant is entitled to a copy of the results which specifies the disqualifying charge or conviction.

In Prince George’s County, an employer may rely on only those convictions which demonstrate unfitness for the desired position. The Montgomery County rule applies to private employers with 15 or more full-time employees while Prince George’s County’s applies to those with at least 25.

Baltimore City’s Fair Chance Ordinance, which has been in effect since last August, is the most restrictive of the local laws germane to Maryland employers. It covers private employers with as few as 10 full-time employees. And, it precludes the use of background checks unless (a) a conditional offer of employment has been made and (b) the position requires trust. An employer that violates Baltimore City’s ordinance is subject to criminal charges.

A summary of local laws applicable to employers in other jurisdictions is available here.

Using Unlicensed Images on a Website Can Be Costly

Posted by Edward Sharkey on Mon, 04/06/2015 - 04:00

It is common for startup businesses to use unlicensed images in their marketing materials. Licenses cost money, and on the internet images seem to be there for the taking. Using even one unlicensed image, however, can cost you. Earlier this month, an image licensing company accepted an $8,000 settlement offer from a Washington, DC patent attorney for his unlicensed use of stock images on his website.

The image licensing company had originally filed suit in federal district court for willful copyright infringement. The complaint sought $150,000 in damages.

Federal copyright law is codified in Title 17 of the United States Code. Chapter 5 of Title 17 outlines the potential remedies a court can provide when a copyright owner proves an image was used without a license. Potential remedies include:

1) An injunction preventing or restraining the infringement;

2) Impounding and disposition of infringing articles;

3) Payment of actual damages sustained by the copyright owner;

4) Payment of profits earned by the infringer; and

5) Payment of costs and attorney’s fees.

Though the settlement dwarfs what the lawyer would have paid in license fees, in the scheme of things, he got off pretty cheaply. The takeaway: make sure you have permission to use the images in your marketing materials. We find that a lot of clients delegate certain tasks and often have no idea if the images on their website are permitted. Then, don’t steal an image. If you are using an image that belongs to someone, pay for it. If you have no budget for images, there are sites that provide licenses for stock image for free. Here are 24 of them – 24 Great Sites for Free Images.

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