ADA NEWS
1994
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
" News Reviews to Peruse"
Number 1 March 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share with your colleagues, supervisors and subordinates. Questions or comments should be addressed to Patrick Bair ( Ed.). Gleaned from the most recent newsletters and cases:
- A federal court in Wisconsin has ruled that Title II litigants are not required to file complaints with government agencies ( such as EEOC, PHRC) before proceeding to court. This differs from the requirement under Title I ( Employment), where a complainant is required to " exhaust administrative remedies" before bringing suit. Employees of government institutions, i. e. DER, may bring employment- related ADA complaints under either title. ( Petersen)
- The newly established Recreation Access Advisory Committee of the U. S. Access Board met in Washington March 18- 20 to hear subcommittee reports on play area settings, sports facilities, outdoor recreation facilities, boating and fishing and amusement parks. We hope to have a report on the committee's findings soon.
- Good news for supervisors. In an ADA Title I lawsuit brought by a terminated employee against his former employer and the employee's former supervisors, a federal district court in Illinois has ruled that supervisors can be held individually liable only if the supervisor is also the employer itself, i. e. not an employee of the employer, or is a " decision- maker" for the employer. ( DeLuca)
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
" News Reviews to Peruse"
Number 2 April 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share with your colleagues, supervisors and subordinates. Questions or comments should be addressed to Patrick Bair ( Ed.).
─ ACCESSIBILITY GUIDELINES - You may recall we had anticipated receiving the proposed access guidelines for state and local governments, but then were informed that their announcement had been a " false alarm." Now we've learned that the Access Board will be publishing the proposed guidelines as " interim final rules" which, after a comment period, will be adopted by the Justice Department as final regulations. We will try to obtain a copy of the interim rules and provide comment if necessary.
- TELEPHONIC REQUESTS for ADA- related technical information may be addressed as follows:
Access Board - 1- 800- USA- ABLE; TDD ( 202) 272- 5449 ( Yes, I would assume that it is unlawful to charge TDD users for a toll call while providing ' 800' service for others.)
Justice Department - ( 202) 514- 0301; TDD ( 202) 514- 0383 ( 1- 5 p. m. EST, Mon. thru Fri.)
- " CASUAL" ILLEGAL DRUG USE - Interesting ' spin' on illegal drug use in a recent case from North Carolina. The case involved an applicant for a police position who admitted during the application process to have been a " casual user" of marijuana and cocaine in the past. When he was not hired he brought an action under ADA Title I. The court found the applicant did not have a protected disability based upon EEOC TAM § 8.5, which provides " a person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be " substantially limited" because of drug use, s/ he must be addicted to the drug." ( Hartman v. Petaluma)
─ MEDICAL RECORDS - The EEOC has filed another lawsuit in Chicago against Columbia Aluminum Recycling, Inc. The suit is based on a failure to hire an otherwise qualified person with disability. The suit also charges that Columbia failed to maintain separate and confidential files about its employees' applicants' medical conditions, as required by the Act.
─ TITLE II? TITLE III? - An agreement between advocacy groups and state officials reached recently in Texas shows just how a government entity can be affected under the ADA, even by its " clients." Advocacy groups had long charged that the Texas state lottery violated Title II of the ADA " by administering a state program that was not accessible to disabled people because the program used retailers that did not comply with Title III. New state rules will ensure that retailers are aware of and comply with the ADA. Does DER have any programs which it administers through private entities covered by Title III?
─ PRESIDENT'S COMMISSION APPOINTMENTS - President Clinton has appointed former House majority whip Tony Coehlo to chair the President's Committee on the Employment of People with
Disabilities. Coehlo was a primary supporter of the ADA's passage. Named as vice- chairpersons were Neil Jacobson, VP of Wells Fargo Bank, and television news anchor Karen Meyer.
See you at the Task Force meeting on the 19th!
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
“ News Reviews to Peruse”
Number 3 May 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share with your colleagues, supervisors and subordinates. Questions or comments should be addressed to Patrick Bair ( Ed.). e
─ HOWARD V. YERUSALIM UPDATE - The U. S. Supreme Court announced on April 18 that it would not review the decision of the 3rd Circuit Court of Appeals requiring the city of Philadelphia to install curb ramps on all streets contracted for resurfacing since the effective date of the ADA.
─ ALSO HAPPENING IN PHILLY - In a settlement of a case brought against the city on behalf of a man with AIDS, the city has agreed to 1) develop an AIDS awareness training program for its fire, police and emergency personnel, 2) promulgate a written policy prohibiting discrimination based on HIV/ AIDS status by emergency response personnel, 3) discipline any employee not complying with the policy, and 4) pay $ 10,000 in compensatory damages and issue a formal apology to the complainant. The complainant, a person with AIDS, was allegedly refused treatment by ambulance personnel after he told them about his HIV status. According to witnesses, the man had to be lifted onto a stretcher by bystanders after ambulance personnel backed away and yelled that the man must be HIV- positive. ( Is it just my imagination, or do most of these cases seem to come from the City of Brotherly Love?)
─ ACCESSIBLE RAINFOREST? - The Omaha Zoological Society has agreed to make accessibility changes to the ~ Henry Doorly Zoo, Lied Jungle and the Treetops Restaurant, all of which it owns and manages. The facilities simulate a rainforest jungle and together are the world's largest indoor rainforest. The jungle features a narrow, winding jungle path, steep cliffs, a swinging bridge, caves, waterfalls, etc. Under the agreement, the society agreed among other things to install a wheelchair lift to the restaurant, remove barriers on the jungle path and provide auxiliary aids, including audiotape recordings. The Justice Department determined that other alterations requested were not readily achievable.
─ UPDATE ON TITLE I STATISTICS - As of March 1, charges/ lawsuits filed under Title I reflect the following trends: Impairments most cited ( and the percentage of overall claims) are back impairments ( 20.2%), neurological impairments ( 13.4%), and emotional/ psychiatric impairments ( 10.2%), followed by heart and extremity impairments, substance abuse, diabetes, hearing and vision impairments, etc.: Violations most often alleged are discharge ( 50~), failure to provide reasonable accommodation ( 23.7%), and hiring ( 12.2%). The EEOC has filed thirteen lawsuits since Title I became effective in July 1993.
─ BUDGETARY SHORTFALL APPARENTLY NO DEFENSE - In granting a request for a preliminary injunction, a federal district court in Florida has forbidden the city of West Palm Beach from eliminating all of its recreational programs for people with physical or mental disabilities. The city sought to eliminate these programs in response to budget cuts. The court stated that, while the city would not have violated the ADA had it eliminated ALL recreational programs, to single out programs specifically for persons with disabilities had the effect of discriminating.
─ BURGER KING GOES VIDEO - In response to a federal Title III lawsuit brought by a deaf actress, Burger King has agreed to install visual devices ( similar to automatic- teller machines) at its " drive- throughs." These devices will make ordering easier for persons with hearing and speech impairments. Burger King has retained the complainant as a consultant.
─ VOLUNTEERS WELCOME - The Access Board is seeking applications for members to serve on an advisory committee to make recommendations for updating federal accessibility guidelines ( ADAAG). Applicants should contact the Access Board, Office of Technical and Information Services.
─ RECREATION ACCESS ADVISORY COMMITTEE - The Committee is scheduled to make its final report in Washington at meetings July 12- 13. For more info, contact the Access Board.
If you'd like additional information about any of these items, or if you have any ADA- related item of interest which you'd like to share in a future bulletin, please contact me. Hope to see all of you tomorrow at the Task Force meeting!
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
" News Reviews to Peruse"
Number 4 June 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share with your colleagues, supervisors and subordinates. Questions or comments should be addressed to Patrick Bair ( Ed.). e
─ ADA PUBLIC NOTIFICATION - Please remind your programs to include ADA accommodation language in ALL public announcements. So far the Department has only been embarrassed by missing announcements, but we could find ourselves in serious trouble. If you have any questions about what is required, talk with Renata, Anita or me.
─ ATTORNEY SANDRA S. CHRISTIANSON, Deputy General Counsel, who has been the Governor's counsel on ADA- related matters, has assumed the position as the Governor's ADA Director recently vacated by Ms. Pat Halpin- Murphy.
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
" News Reviews to Peruse"
Number 5 July 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share with your colleagues, supervisors and subordinates. Questions or comments should be addressed to Patrick Bair ( Ed.). e
─ INTERVIEWING GUIDANCE - The EEOC has issued written guidance for pre- employment questioning and medical examinations. The 50- page document represents the most comprehensive treatment of this subject since the Act became effective, and is intended for use in EEOC offices as " bright lines" on several previously muddy areas of the law. While most of the guidance is logical or apparent from previous materials, some points have been enlarged upon.
-- First, the guidelines suggest that discussion of " reasonable accommodation" at the initial interview stage is almost never appropriate, even where the applicant/ interviewee reveals the existence of a disability and asks about accommodation. Only after a job offer has been made and the selectee has asked for accommodation may accommodations be discussed.
-- Also, the guidelines apparently reinforce the suggestion that physical ability/ agility/ fitness tests are not medical examinations, which may not be administered at the pre- offer stage. These tests may be open for challenge on other bases, however.
Look for further updates on the guidelines as we continue to scrutinize them. ─ WOOD V. OMAHA SCHOOL DISTRICT - The Eighth Circuit Court of Appeals has affirmed the action of a school district in removing two diabetic bus drivers who had been found not qualified for the driver job and for whom no reasonable accommodation could be made. The Court found that the drivers' " poorly- controlled" diabetes created an increased risk which could not be accommodated by their self- monitoring.
─ REGULAR ATTENDANCE " ESSENTIAL" - The U. S. Court of Appeals for the District of Columbia Circuit has ruled that an employer did not discriminate against an employee who, because of her disability, required a flexible schedule which would, in essence, have allowed her to set her own schedule. The Court found that the employee was incapable of performing the " essential function" of coming to work regularly, with or without a reasonable accommodation. ( Carr v. Reno)
─ SELF- EVALUATION/ TRANSITION PLANS - In a decision from a lawsuit brought in federal district court, the City of Manhattan was found to have produced inadequate self- evaluation plans which essentially repeated those plans previously filed under the 1973 Rehabilitation Act without update. In addition, the city's transition plan was found faulty in that, among other things, it failed to include a schedule for installation of curb ramps. ( Tyler v. City of Manhattan)
─ ANXIETY DISORDER - The discharge of a postal worker for ignoring direct orders and punching his supervisor in the face was
upheld by the First Circuit Court of Appeals. The employee had claimed that, because of his post- Vietnam anxiety neurosis disorder, the employer was required to reasonably accommodate him by " protecting him from stressful situations." The Court found this to be unreasonable - " an agency must be able to give its employees instructions and expect them to comply without putting the supervisor at physical risk." ( Marino v. U. S. Postal Service)
─ YOU KNOW. WE COULD HAVE IT WORSE - A disability- rights group in Texas - Advocacy Inc. - last year filed 82 lawsuits against state agencies and private employers to force them into compliance with the ADA. The group has announced plans to file 40 - 50 additional suits within the next five months. While most of the lawsuits filed have been settled out of court, the settlements required the defendants to pay court costs and attorneys' fees.
─ ONE BIG COUNTRY - July 26, 1994, is the date for the last " phase- in" of the ADA. On the 26th, the Act will be applicable to all employers with 15 or more employees. ( Previously it applied only to private employers of 25 or more and all public employers.)
─ ACCESS BOARD INTERIM FINAL RULES - The Access Board has published and solicited comments on " final interim rules" for newly constructed state and local government facilities under the ADA. Jerry Yocum will be representing the Department on an ad hoc committee convened by Sandra Christianson, the Governor's ADA Director, to " coordinate presentation of comments to the Access Board." @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
" News Reviews to Peruse"
Number 6 August 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share with your colleagues, supervisors and subordinates. Questions or comments should be addressed to Patrick Bair ( Ed.).
─ CAN'T HAVE YOUR CARE AND EAT IT, TOO - A North Carolina federal District Court decided that the discharge of a physician did not violate the ADA where the physician and her attending physicians had certified on workers comp forms that she would " never" be able " to work in any capacity as a physician." The physician, who had suffered a shoulder injury, simultaneously claimed before the EEOC that her employer discriminated against her by failing to reasonably accommodate her disability. In a wonderful quote, the court stated the physician " cannot speak out of both sides of her mouth with equal vigor and credibility." The court found it unacceptable that she would seek damages claiming to be willing and able to work, while at the same time collecting disability payments.
─ THE NUMBERS ARE NOT IMPROVING - According to a recent Lou Harris poll, 79% of people with disabilities would like to work, though two- thirds are out of work. According to the survey, 81~ of those out of work believe it to be due to their disability. Of those employed, 69% needed no special equipment or technology to work effectively.
─ LATER TIMES FOR MEETINGS - A federal District court in Texas has ordered the board of the Austin Travis County Mental Health and Mental Retardation center, which serves the residents of Travis County, to change the time of their meetings from 7 a. m. to no earlier than 9: 30 a. m. A Title II complaint against the board contended that some persons with mental illnesses take certain medications the residual effects of which make it impossible for them to attend early morning meetings. The court found the board had failed to show that changing its meeting time would fundamentally alter the nature of the board or create an undue burden. ( Dees v. Austin Travis County Mental Health and Mental Retardation, DC WTex.)
Sorry to hear we're not getting together this month. Oh well, " see you in September" ( The Lettermen, right?).
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
" News Reviews to Peruse"
Number 7 September 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share with your colleagues, supervisors and subordinates. Questions or comments should be addressed to Patrick Bair ( Ed.).
─ DISABILITY OR TREATMENT, " MAKES NO DIFFERENCE" - The U. S. District Court for Eastern Pennsylvania, in an action to decide whether an employee's ADA claim should go to trial, found that it " makes no difference" if a major life function is substantially affected directly by a disability or indirectly by medication for the disability. The employee claimed he could not work in a closed, unventilated environment because medication he took for his hypertension and depression made him overly sensitive to heat. The employer moved for summary judgment on the grounds that the employee's disability did not substantially affect a major life activity. The Court, in denying the employer's motion, saw no distinction between disability and treatment for purposes of proceeding to trial under the ADA. ( Fehr v. McLean Packaging Corp., DC EPa., No. 93- 6108, 7/ 13/ 94)
─ ELIMINATING ESSENTIAL FUNCTION NOT REASONABLE ACCOMMODATION - A federal court in Georgia found that the request of a customer service representative, whose job involved answering phone calls from customers, to restructure her job to eliminate time spent on the telephone was not a reasonable accommodation. The employee experienced various psychological and emotional trauma which she claimed was triggered by having to handle calls. The court found answering the telephone was an essential function of the employee's job and eliminating telephone work would not be a reasonable accommodation. ( Larkins v. Ciba Vision Corp., 3 AD Cases 715, DC NGa., 7/ 16/ 94)
─ SYMPTOMLESS HIV STILL DISABILITY - A federal judge in Philadelphia has ruled that a person with HIV infection is a " person with a disability" under the ADA, even where the person has no symptoms of disease. ( Doe v. Kohn, Nast & Graf, DC EPa., No. 93- 4510, 8/ 4/ 94)
─ REMEMBER SELF- EVALUATION AND TRANSITION PLANS? - A federal court has invalidated the self- evaluation and transition plans of the city of Manhattan, Kansas, as inadequate. The city failed to include all city services, policies and practices in relying solely on a self- evaluation it had made ten years ago under the Rehabilitation Act. The court's order requires the city to make numerous facilities wheelchair accessible and forbids its use of a ball field which cannot be made accessible. ( Tyler v. City of Manhattan, 3 AD Cases 675, DC Kan., No. 93- 4030- DES, 7/ 7/ 94)
─ PERSONALITY TRAIT OR MENTAL DISORDER? - A federal judge in Tampa, Florida, has directed that an ADA claim go to a jury to decide whether a fired employee who brought a firearm onto his employer's property did so because of a " chemical imbalance" which affected his judgment, or merely because of bad judgment. The former, said the court, may qualify as a disability; the latter is a " personality trait" under EEOC regulations which would not qualify as a disability. ( Hindman v. GTE Data Services Inc., 3 AD Cases 641, DC MFla., 6/ 24/ 94)
─ AADAC CONFERENCES - The Association of ADA Coordinators ( AADAC) is sponsoring conferences on the ADA this fall in Washington, D. C., San Diego and St. Louis. Topics will include determining essential functions, developing reasonable accommodations, and transition planning. For more information, contact AADAC at 800- 722- 4ADA.
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
" News Reviews to Peruse"
Number 8 October 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with your colleagues, supervisors and subordinates. Questions or comments; including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick Bair ( Ed.).
─ LOCAL LAWSUITS - It pays to keep your eyes on the local papers. One case of local interest is the " Scott Doe" case in Philadelphia ( asymptomatic HIV- positive attorney suing former firm which fired him after learning of his HIV status; this case mirrors the movie " Philadelphia" - Doe v. Kohn. Nast & Graf. In a related case, a jury in Texas found that the city of Austin violated the ADA and state anti- discrimination laws by failing to accommodate an employee who is HIV positive.) Also, separate lawsuits were filed in federal court in Harrisburg this week by the Center for Independent Living and the Disabilities Law Project against CAT and the UA Theatres ( sic) at Capital City Mall ( both accessibility issues). Stay tuned ...
─ WARNING - DON'T JUMP TO CONCLUSIONS - In the second ADA case filed by the EEOC to reach a jury, a plaintiff was awarded approximately $ 21,000 in damages from a discharge based on a perceived disability. The employee was fired after she fainted on the job because the employer believed she was suffering from an unknown disability. The employer's physician had given an initial diagnosis but, after conducting tests, stated that all test results had been " within normal limits" and found no medical reason for the fainting. The employer fired her without any further tests, concluding she was a safety risk because she could faint again. The Commission argued that, though the employee had no disability, she was treated as if she did. ( EEOC v. Potlach Corp., CA No. PB- C- 93- 647, DC EArk., 8/ 23/ 94)
─ ABSENTEEISM UPDATE - In two recent decisions, courts have addressed the question of absenteeism under the ADA. The Fourth Circuit Court of Appeals ( MD, NC, SC, VA & WV) examined a case involving an employee with Lupus who also had a son with a disability and who, despite efforts by her employer to accommodate her disability, took almost forty sick days related to her or her son's disability in a seven- month period. The Court, on review, found that she was not protected by the ADA because she was unable to meet the job's attendance requirements and because most of her absences were for the care of her son, for which the employer did not have to make accommodation under the Act. The Court found a " strong inference of non- discrimination" supported by the fact that the person who fired her was the same person who had hired her two years earlier, knowing about the disability. ( Tyndall v. National Education Centers, 3 AD Cases 868, CA 4, 8/ 3/ 94)
In another case in Kansas, a federal District Court refused to dismiss the ADA claim of an employee fired for absences caused by migraine headaches. Observing that while regular attendance is an essential part of almost every job, " but the question is one of degree," the court found the employer had failed to show that allowing the employee to use unscheduled vacations to cover absences would be an unreasonable accommodation or create an undue hardship. ( Dutton v. Johnson County Board of County Commissioners, DC Kan., 3 AD Cases 808, 7/ 20/ 94)
─ LIGHT- DUTY POSITIONS - A federal district court in Alabama has denied an employer's motion for summary judgment in the ADA claim of an employee with a disability who claimed that his employer failed to reasonably accommodate him when it refused to reassign him to a permanent light- duty position. The employee, who had worked for 13 months in a temporary light- duty position prior to a re- injury, sued the employer claiming that, despite its policy of a 13 month limitation on light- duty positions, it had accommodated other employees for longer periods. The case was remanded to determine the truth of the employee's claims. ( Howell v. Michelin Tire Corp., 3 AD Cases 929, DC MAla., 8/ 2/ 94)
─ INTERIM FINAL ACCESSIBILITY GUIDELINES ─ As related by our own Gerry Yocum last month, the new guidelines require, in part, that state and local buildings which have at least one public pay phone have at least one TDD installed or made accessible to the public.
─ TITLE II LAWSUITS - A federal district court in Kansas has ruled that jury trials and monetary damages are unavailable in suits brought under Title II of the ADA ( the portion of the Act which affects public programs). The lawsuit involved a claim that the public entity had not filed proper transition plans. It did not involve an employment claim by a public employee, which would also be available under Title II, and which could be decided differently on those two issues. ( Tyler v. City of Manhattan) ─ PUBLIC ACCESSIBILITY ─ Two California cities and a Florida county have reached agreements with the Justice Department to provide auxiliary aids and services, including TDDs and interpreters, and provide enhanced access for services such as 911 emergency telephone services and interpreters, TDDs and access to 800 relay services for deaf inmates of county jails.
─ EEOC UPDATE ─ According to EEOC statistics through the end of June 1994, the Commission announced that over 92,000 charges were awaiting disposition, a 30.6 percent increase over last year. Estimates are that the agency will have received a new high of nearly 90,000 job bias charges by year's end. The ADA is cited as the major contributing cause of the increase.
─ " MAJOR LIFE ACTIVITY" LIMITED ─ A federal district court in California has dismissed an action brought under the California Fair Employment and Housing Act by a salesman who claimed a disability because his sinus condition prevented him from flying. The court refused to interpret the California law, which is similar to the ADA in its definition of " disability," as requiring that traveling by air be seen as a " major life activity." The court stated that the term " major~ or life activity~ cannot be construed as " embracing every possible activity in modern life." ( Schultz v. Spraylat Corp., DC CCalif., No. CV 93- 4777- RJK, 8/ 24/ 94)
─ AND FINALLY, FOR ALL YOU ATTORNEY HATERS - A large Boston law firm has been ordered to pay $ 3.2 million in damages to a former administrator at the firm who has multiple sclerosis and who was fired in January 1992. The administrator alleged that the firm had refused to reasonably accommodate his disability. The case was decided under a Massachusetts disabilities law. ( Remember, plaintiff's counsel will likely get a sizeable percentage of that award.)
Hope to see you all at the Task Force meeting on Tuesday! Have a GREAT WEEKEND!
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
" News Reviews to Peruse"
Number 9 November 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with your colleagues, supervisors and subordinates. Questions or comments, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick Bair ( Ed.).
─ UNDIAGNOSED DISABILITY? - An interesting ADA case has been filed in a federal district court in California by an employee of CitiCorp Credit Services Inc. The employee claims that her employer violated the Act when it refused to accommodate her " disability" - her declared uncontrollable body odor. CitiCorp maintains that, despite its efforts, the employee has not provided medical documentation of the existence of " a mental or physical impairment." The employee claims that several physicians have been unable to diagnose her condition, though no one disputes its existence. The Act provides an employer with the right to require proof of disability. The question this case presents is whether an employee experiencing an undiagnosed ( or " undiagnosable?") " mystery" condition is nevertheless covered by the ADA? Will the inability of the medical profession to pigeon- hole someone's symptoms result in that individual being ineligible for protection? Stay tuned ...
─ TITLE III AWARD - In the largest award achieved under Title III of the ADA to date, the Justice Department announced that a Houston dental office will pay $ 100,000 in damages and penalties for refusing dental services to a person who had tested positive for HIV. Title III prohibits discrimination against persons with disabilities in places of public accommodation. ( DoJ v. Castle Dental Center)
─ RECREATIONAL FACILITIES COMMITTEE REPORT - The report of the recreational advisory committee of the Architectural and Transportation Barriers Compliance Board is now available for your perusal. Included are recommendations for the modification of swimming facilities, outdoor facilities, playgrounds, playing fields, etc. A single copy of the report will be maintained in the office of Patrick Bair. Single copies are also available at no charge by calling the Board's automatic publication ordering number at ( 202) 272- 5434 and ordering publication S26.
─ CONGRESS WATCH - Prior to adjournment, the U. S. Congress failed to approve measures which would have applied ten anti- discrimination laws including the ADA to itself ( the Congressional Accountability Act, H. R. 4822) and that would have amended the ADA and other anti- discrimination laws to prevent the involuntary application of compulsory arbitration to claims arising thereunder ( the Civil Rights Procedures Protection Act, S. 2405 & H. R. 4981).
─ PRISONERS ARE PEOPLE, TOO - A federal district court has cleared the way for a lawsuit alleging disability discrimination brought by an inmate of the Virginia correctional system. The court denied the state's motion to dismiss the suit, thus rejecting the notion that the ADA did not apply to state prisoners. ( Torcasio v. Murray, E. D. Va. 1994)
─ PERCEPTION OF DISABILITY - A claim of disability based on a perceived disability cannot be made without a showing that the employer believed the claimant had a disability that substantially limited a major life activity, according to a recent decision by a federal district court in Illinois. This decision mirrors a similar finding relating to perceived disability by our own Pennsylvania Supreme Court in a 1991 decision. ( Flasza v. TNT Holland Motor Express, E. D. Ill.)
─ REHAB ACT CASE LAW APPLICABLE - According to a decision by the Tenth Circuit Court of Appeals, case law developed under the Rehabilitation Act should apply to define the term " disability" under the ADA. The decision involved a lawsuit by a man who claimed a disability under the ADA because he was not certified to return to work following a medical leave. In determining that he did not have a disability, the court relied on case law under the Rehab Act holding that the inability to perform only one job is not a disability. The court found that the claimant had failed to show a significant restriction in his ability to perform either a class of jobs or a broad range of jobs in various classes. ( Bolton v. Scrivner Inc., 10th Cir. 1994)
─ SUPERVISORY LIABILITY - A supervisor may not be sued in his or her individual capacity under Title I of the ADA, but only in his or her official capacity, under a decision by a federal district court in Illinois. This holding is not currently uniform throughout the federal circuits. ( Haltek v. Village of Park Forest, E. D. Ill. 1994)
That's all for now.
@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
@ @
@ *** ******* *** @
@ ***** ********** ***** @
@ *** *** *** *** *** *** @
@ *** *** *** **** *** *** @
@ *********** *** **** *********** @
@ ************* *** *** ************* @
@ *** *** ********* *** *** @
@ *** *** ******** *** *** @
@ @
@ ** ** ******* ** ** ****** @
@ ** ** ******* ** ** *** *** @
@ *** ** ** ** ** ** ** @
@ **** ** **** ** *** ** **** @
@ ** **** **** ** ***** ** **** @
@ ** *** ** ** ** ** ** * **** @
@ ** ** ******* **** **** *** *** @
@ ** ** ******* *** *** ****** @
@ @
" News Reviews to Peruse"
Number 10 December 15, 1994
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with your colleagues, supervisors and subordinates. Questions or comments, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick Bair ( Ed.).
─ EXPANDING NOTIONS OF " EMPLOYER" - In a recent case, a federal district court in Illinois has ruled that a pension fund for police and firefighters may be held liable under the ADA as an " employer." Although the fund is not technically an employer, the court held that the fund's control over employee benefits would bring it within the definition of employer for ADA purposes. The court's opinion states "[ t] he ADA is silent as to requiring a direct employment relationship for liability and ... such a requirement should not be read into the statute." Using the same logic, the court also refused to dismiss the State from the suit, even though it was not a : direct employer." ( U. S. v. State of Illinois, 3 AD Cases 1157, DC NIll, 9/ 9/ 94)
The decision lends support to another recent decision of the First Circuit Court of Appeals, which reversed a lower court's dismissal of an employee's ADA claim against his employer and the employer's self ─ funded multi ─ employer health reimbursement plan. The lower court had ruled that the plan, which had drastically cut employee benefits, was not an employer under the ADA. In reversing, the Court of Appeals stated that the lower court had erred in dismissing the case and that the plan could be liable under Title I of the ADA based on one of three theories: if it had acted as an employer with respect to health coverage, if it had acted as the employer's agent for those purposes, or if the ADA could be applied to entities which are " not technically employers." Additionally, the Court rejected the idea that liability could not also be based on Title III. The EEOC filed an amicus brief arguing that an entity which deprives an individual of benefits based on a disability can be liable under Title I. ( Carparts v. AWANE, U. S. App. 1st Cir., 1994)
─ LIGHT DUTY UPDATE - It was reported in the October issue that a court in Alabama had permitted a case involving an ADA case involving an employee's claim for permanent light duty as a reasonable accommodation to go forward. That court has now, based on pretrial motions, directed a verdict for the employer on the employee's claim for punitive damages and permitted the remainder of the claims to go to a jury. The jury found in favor of the employer on all counts. ( Howell v. Michelin Tire Corp., 3 A. D. Cases 929, DC MAla., 8/ 19/ 94)
─ NO ACCOMMODATION NEEDED - A store manager with U. S. Shoe, who claimed that she could return to work with no accommodation for her injured hand, lost her entitlement to a trial according to a federal district court in Maryland. The woman, who had been injured on the job more than a year prior, was asked by her employer to provide medical clearance to return to work. She submitted a physician's note stating she could return to work " as tolerated," but denied that she needed any accommodation. The employer suggested that if she could not get a complete medical clearance, she should apply for long- term disability. She did and disability was denied. The court found that, though she had established that her employer regarded her as a person with a disability, her insistence that she needed no accommodation prevented the employer from complying with its obligation to consider all reasonable accommodations. The court refused to require the employer to accept the employee's return on an " as tolerated" basis. ( Derbis v. U. S. Shoe Cor., 3 A. D. Cases 1029, DC Md. 9/ 7/ 94)
─ APPOINTMENTS, APPOINTMENTS - Three recently confirmed appointments to the Equal Employment Opportunity Commission - Gilbert Casellas as chairman and Paul Igasaki and Paul Steven Miller as commissioners - may lead to resolution of some thorny questions under the ADA, including the definition of " disability," according to Acting Commission counsel Elizabeth M. Thornton. Thornton said the " tough issues" before the Commission are whether infertility, morbid obesity and nicotine addiction are protected disabilities. Also to be addressed are conflicts between the ADA and local and state laws and collective bargaining agreements, and what constitutes " undue hardship" for an employer. Casellas, Igasaki and Miller join R. Gaull Silberman and Joyce E. Tucker on the Commission. The EEOC presently has a backlog of approximately 96,945 pending charges.
In addition to the EEOC appointments, President Clinton has appointed Pamela Young- Holmes of Ultratecc, Inc.; Donna L. Sorkin, executive director of Self Help for Hard of Hearing People, Inc.; and John H. Caitlin, a Chicago architect who specializes in designing space accessible to persons with disabilities; to positions on the Access Board. Also appointed as the new executive director of the National Council on Disability is Speed Davis, former director of the Massachusetts Office on Disability and a national authority on housing rights.
─ REASONABLE ACCOMMODATION PROCESS - The Job Accommodation Network ( 1- 800- 526- 7234), which assists employers in designing accommodations for persons with disabilities, has provided a diagram of its " thought process" involved in reaching accommodation solutions. According to JAN, it begins with the least expensive\ VA solution and progresses to the more expensive. The diagram is attached to this edition for your use or information. Calls to JAN are free and confidential.
─ ADA DRUG USE POLICY REFINEMENTS - According to a recent article by an ADA policy attorney at the EEOC, an employee who breaks the employer's rules regarding use of illegal drugs cannot avoid discipline or discharge by enrolling in a rehab program and claiming ADA protection as a former drug addict. The EEOC defines " current drug use" as " recently enough" to justify the employer's reasonable belief that drug use is an ongoing problem. " Current" is not limited to the day or week of the drug use, but is determined on a case- by- case basis.
Also, for those of you who remember our unanswered question whether the Act prohibits the " use of illegal drugs" or the " illegal use of drugs" ( as in abuse of a legal prescription drug) the same article may give us a clue. The author uses as an example of an employer's ability to enforce workplace discipline the case of an employee discharged for using marijuana, an " illegal drug." The author adds that, if the marijuana is prescribed by a health care professional for a disability, discipline or discharge would not be appropriate, since the employee would not be engaging in the " illegal use of drugs." Sounds to me as if that is the standard we should be utilizing.
─ HARASSMENT GUIDELINES RECONSIDERED - The EEOC has formally withdrawn a proposal announced in October 1993 that would have extended current EEOC guidelines regarding harassment based on gender to harassment on the basis of disability, race, religion, national origin and age, as well. The withdrawal was prompted by concerns raised by religious groups over potential First Amendment problems with extending the guideline to religion.
─ MULTIPLE CHEMICAL SENSITIVITY - In an almost unprecedented case filed in federal district court in Virginia, a woman with multiple chemical sensitivity has charged a condominium association and a lawn service company with discrimination because they continued to apply pesticides to her lawn despite her claims that the chemicals aggravated her disability. The suit alleges that the defendants refused to stop chemical application on the claimant's lawn, to give her notice of planned applications or to institute an integrated pest management program utilizing non- petrochemical products. The case could give the court an opportunity to rule whether such chemical sensitivity is a " disability" under the law. The suit was brought under the federal Fair Housing Act, which guarantees fair housing to people with disabilities and prohibits discrimination, including the failure to make reasonable accommodation, and contains a definition of " disability" which is virtually identical to that in the ADA. The Department of Housing and Urban Development ( HUD), which enforces the FHA, issued a memorandum in 1992 that stated that multiple chemical sensitivity can be a " handicap" under the law.] ( Lebens v. County Creek Assoc. Inc., DC EDVa, 7/ 94)
─ DIABETIC DRIVERS - In two cases decided by different federal district courts, the obligation of employers with employee drivers diagnosed as diabetic has been construed. A court in Oklahoma decided a case in which UPS transferred a driver to a part- time car washer job upon discovering he had diabetes, citing federal Transportation Department regulations. The court found that the DOT regulations did not prohibit the employee from driving vehicles weighing less than 10,000 pounds ( which the employee had driven) and found that UPS failed to show that the driver's diabetes, which was " under control," presented a direct threat to the health or safety of others. The court found the driver otherwise qualified so long as food was within reach and he carried neither passengers nor hazardous materials. [ Wonder what this court thinks about the " direct threat to self" defense espoused by the EEOC?]
In a parallel case decided in Illinois, a district court found a probationary police officer with diabetes not qualified. The officer was fired after experiencing a hypoglycemic episode while driving, which caused him to operate the marked police car erratically at a high rate of speed, then collapse into a diabetic coma when apprehended. Although the officer testified that he knew how to control his diabetes, the court expressed skepticism and held that the employer did not have to offer a second chance.
─ ACCOMMODATION OF EMPLOYEES WITH PSYCHIATRIC/ EMOTIONAL PROBLEMS - Two recent talks on the above topic - one by Howard H. Goldman, M. D., Ph. D., professor of psychiatry at the University of Maryland Medical School, at an October 17 seminar sponsored by the Washington Business Group on Health in Washington, D. C. and a second by Kathryn Shane McCarty of the ABA's Commission on Mental Health and Physical Disability Law - are summarized in the November 1994 issue of " BNA's ADA Manual Newsletter" ( Vol. 3, No. 11, p. 68). The summary includes a useful discussion of their respective remarks as well as a case study for any who are interested. Copies of the summary can be procured from OAA/ CC or your editor.
─ SO WHAT IF YOU'RE THE " EXPERTS"?- Federal courts seem to be
feasting on the EEOC lately. In the words of one publication, two recent decisions have " defied government interpretation of ADA regulations." The decisions, from federal district courts in Ohio and Texas, each rejected the EEOC's interpretation of its own regulations. In the Texas case, the court refused to automatically classify insulin- dependent diabetes as a disability, a position urged by the Commission. More recently, an Ohio court refused to accept the EEOC's expanded notion of what constitutes an " employer" under the ADA. The court stated that instead one should look to cases under Title VII of the Civil Rights Act to determine the definition of employer. ( Coghlan v. E. J. Heinz Co., N. D. Tex., 4/ 94; Pappas v. Bethesda Hospital Assn., S. D. Ohio, 6/ 94) ─ NEW TITLE III MANUAL AVAILABLE - The Department of Justice has recently issued its 1994 supplement to its Title III Technical Assistance Manual. While not normally applicable to state government, Title III is useful on questions of accessibility and architectural alterations.
I hope to see you all at the task force meeting on Tuesday!
AN ACCOMMODATION PROCESS
( As utilized by the JAN)
. ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ > Define the Problem
|
| Is it possible to modify the job?
|
| - Yes -----------------> Revise the job description
|
| - If no,
|
| Is it possible to modify the existing facilities?
|
| - Yes -----------------> Modify the facilities
|
| - If no,
|
| Does a product exist that would solve the problem?
|
| - Yes -----------------> Purchase the product
|
| - If no,
|
| Is it possible to use or combine available products | differently from how they are usually used?
|
| - Yes --------> Purchase and integrate the product
|
| - If no,
|
| Is it possible to modify a product?
|
| - Yes ------------> Purchase and modify the product
|
| - If no,
|
| Is it possible to design a new product?
|
| ─ Yes ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ > Design and produce the new product
|
| - If no, |
| Are there alternative placement possibilities?
|
| ─ Yes ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ ─ > Reassign to available position
|
| ─ If no,
|
`<------ Redefine the situation
