ADA news news reviews to peruse.

              ADA NEWS
1995
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" News Reviews to Peruse"
Number 11 January 20, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with your colleagues, supervisors and subordinates. Questions or comments, including requests foraccommodations needed to receive or apprehend this publication, should beaddressed to Patrick Bair ( Ed.).
─ SUPERVISOR- INDUCED DISABILITY - Can health problems allegedly caused by anemployee's conflict with a supervisor be a disability under the ADA? Justmaybe, according to a decision of an Illinois federal district court. Anemployee brought a suit claiming that she had developed Temporal Mandibular Joint Dysfunction ( TMJ), anxiety and depression caused by job- related stress brought on by criticism and harassment from her supervisor. The court, indenying the employer's motion to dismiss, stated that the employee'sillnesses met the ADA definition of " disability" because they substantiallylimited her ability to perform major life activities. [ One wonders whether, if the allegation as to causation is true, the employee is " substantiallylimited." If the employee's ailments could be remedied simply by separatingher and the supervisor, the conclusion that she is substantially limited isquestionable.] ( Weiler v. Household Finance Corp., N. D. Ill. 1994) ─ " NEW BROOM" AT EEOC - Gilbert F. Casellas, the newly- designated head ofthe EEOC, has set as his first priority the issuance of new guidelines foremployers on the ADA. New or revised guidance on " what is a disability" andlegal interviewing are anticipated, as well as an educational campaign whichit is hoped will reduce the number of new complaints filed with the agency. Mr. Casellas also told a Wall Street Journal reporter that some" house- cleaning" at the agency is needed to revamp the EEOC bureaucracy sothat complaints can be handled more efficiently. Mr. Casellas, most recently the general counsel to the U. S. Air Force, is a former head of the NationalHispanic Bar Association, special counsel to the Philadelphia Human RelationsCommission, and served on the Mayor's Commission on Puerto Rican and Latino Affairs.
─ INDIVIDUAL LIABILITY - A federal district judge for the Western Districtof Pennsylvania ruled in an August decision that individual employees cannotbe held liable for violations of Title VII of the Civil Rights Act. Judge Lancaster of the Western District held that the Act was designed to guaranteethat employers sued under the act answer legally for the misconduct ofemployees. It is likely, though not assured, that a similar interpretationcould now be argued and sustained in Pennsylvania under the ADA. The decisionis supported by a decision of the Eastern District issued on the same day andwhich reached the same conclusion. ( Barb v. Miles, W. D. Pa. 8/ 25/ 94; Verde v. City of Philadelphia, E. D. Pa. 8/ 25/ 94)
─ NEW L& I SECRETARY - Governor- elect Tom Ridge has nominated Johnny Butlerto be his Secretary for Labor and Industry. Mr. Butler formerly was thedistrict director for the Philadelphia office of the EEOC and was a lawyerfor the NAACP Legal Defense Fund.
─ WHO IS THE EMPLOYER? - A question of ongoing interest has been whetherunder Title I a State agency ( such as DER) is an " employer" for purposes ofreasonable accommodation, undue hardship, etc., or whether the Commonwealthgenerally is the employer. As those of you who attended ADA training willrecall, the Third Circuit in Nelson v. Thornburgh opined that a claim ofundue hardship by DPW had to be evaluated considering the resources of theCommonwealth, not DPW. More recently an article in the National DisabilityLaw Reporter reports that the EEOC has informed the ADA Coordinator for theNew Mexico State Personnel Office that an individual's employer " could be" anagency or the state, depending on the " facts and circumstances of theparticular situation.... In some cases, the operations of two or moreentities are so intertwined that they are considered a single employer. This may be the case with regard to state entities."
─ REASSIGNMENT AS REASONABLE ACCOMMODATION - In an opinion which recently came to your editor's attention, the Department of Justice directed theDenver Police Department to offer a reassignment to a police officer with adisability which prevented him from performing the essential functions of hisjob as a police officer. The DOJ letter clearly states that, if an employeeis unable to perform the essential functions of her/ his present job, reassignment to another position for which the employee is ( or may be?) qualified must be considered as a reasonable accommodation, even if the employee is assigned to an entirely different specialty. ( USDOJ, Civil RightsDiv., Complaint No. 204- 13- 4, City and County of Denver)
From the Editor
My apologies for the tardiness of this edition of the " News." ( I'msurprised no one has mentioned it.) I hope you all had a pleasant holiday andare now refreshed and reinvigorated for the new challenges that 1995 willinevitably present. The foregoing year indeed presented many challenges inthe ADA area and, in my opinion, we in DER handled them admirably. In myexperience, this agency has achieved a measure of respect among otheragencies and in the Governor's Office for its continued attention to thisarea and the sensitivity, wisdom and willingness of its employees in making accommodations where appropriate. My personal thanks to the members of theADA Task Force for acting as leaders in this continuing effort.
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" News Reviews to Peruse"
Number 12 February 15, 1995
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with your colleagues, supervisors and subordinates. Contributions, questions or comments, including requests for accommodations needed to receive or apprehend thispublication, should be addressed to Patrick Bair ( Ed.).
- FIRST JUSTICE SUIT - The Department of Justice has brought its first ADAemployment- related lawsuit against a public entity, the Pontiac, Michiganfire department, for refusing to hire an applicant blind in one eye for afirefighter position. The case was referred to DOJ by the EEOC, where theapplicant had filed originally. ( U. S. v. City of Pontiac, DC EMich, No. 94- 74997, 12/ 13/ 94)
- SEVENTH CIRCUIT DRAWS LINE - " An employer - even if it is large or wealthy - is not required to expend ` enormous sums in order to bring about a trivialimprovement in the life of a disabled employee,' according to the U. S. Courtof Appeals for the Seventh Circuit. Affirming a grant of summary judgment toa state employer in an ADA case filed by an employee in a wheelchair whosought the opportunity to work at home as well as other accommodations, ChiefJudge Richard Posner remarked that if employers have ` potentially unlimitedfinancial obligations' to 43 million people with disabilities, the ADA ` willhave imposed an indirect tax potentially greater than the national debt'." ( Excerpted from BNA ADA Manual, Vol. 1, No. 2) The employee in question, already the recipient of extensive accommodation, had requested a desk topcomputer and permission to work full time at home. The Court also refused torequire the employer to lower an office kitchenette sink when an accessible sink was available to the employee in a nearby bathroom. " Accessibility to aparticular sink, when access to an equivalent sink, conveniently located, isprovided, is not a legal duty of an employer ... [ T] he duty of reasonableaccommodation is satisfied when the employer does what is necessary to enablethe disabled worker to work in reasonable comfort." Interestingly, the Court also said in its decision an employer " is not required to accommodate adisability by allowing the disabled worker to work, by himself, withoutsupervision at home." Of course, the EEOC has listed " homework" as an exampleof a reasonable accommodation in its regulations. ( Vande Zande v. WisconsinDept. of Administration, 7th Cir., No. 94- 1884, 1/ 5/ 95)
- DRUG TESTING - In one of several cases brought under the ADA by the EEOCprior to the end of 1994, an action was brought against Chrysler Corp. for its refusal to hire an applicant for an electrician's position. Theapplicant passed a pre- hiring drug screening test, but the test also revealedhis diabetes, which the company used as its reason for revoking its joboffer. The case was filed by the Commission's Detroit office. ( EEOC v. Chrysler Corp., CA 94- 74979, DC EMich, 12/ 13/ 94) Effective January 1, 1995, new Dept. of Transportation regulations impose new testing requirements onemployers with more than fifty employees who are requiredto possess commercial drivers license and drive heavy vehicles. Conflicts with the ADAare apparent, especially with respect to alcoholism, which is a protecteddisability under the ADA but grounds for removal under the new DOT regs.
- COLLECTIVE BARGAINING AGREEMENTS - A much discussed question in theemployment field - whether an individual can be barred by an arbitrationclause in a collective bargaining agreement from bringing an employmentdiscrimination action against her employer? - has been presented to the Fourth Circuit Court of Appeals. The lower court concluded that anindividual can be barred. Oral argument on the case was scheduled forFebruary 3. ( Austin v. Owens- Brockway Glass Container, No. 94- 1213, CA4)
- FROM CAPITOL HILL - The ADA and the Individuals with DisabilitiesEducation Act ( IDEA) are exempted from recently introduced legislation in theSenate and House of Representatives banning unfunded federal mandates. Reportedly, the bills exempt " the ADA and other laws that enforceconstitutional rights or prohibit discrimination on the basis of race, religion, gender, national origin or disability." In other Congressionalnews, the first major law enacted by the 104th Congress, the CongressionalAccountability Act, will apply 10 federal civil rights laws, including theADA, to Congress.
- WHERE AMERICA SHOPS - According to a recent study by the AnnenbergWashington Program in Communications Policy Studies of NorthwesternUniversity, Sears, Roebuck and Company is at the " cutting edge" of accommodating workers with disabilities. Approximately 20,000 of Sears' 300,000 workers have some sort of disability. According to Sears, fewer than10% of self- identified employees with disabilities required anyaccommodation. Between 1978 and 1992, Sears made 436 accommodations, ofwhich 301 cost nothing. Average cost of an accommodation was $ 121.42, with only thirteen accommodations costing over $ 1,000. A copy of Sears' policiesfor accommodating employees with disabilities isavailable on request. ( BNA ADA Man. Vol. 4, No. 1)
- HIV TRANSMISSION RISK - According to the U. S. District Court for theEastern District of Pennsylvania, the risk of transmission of HIV duringinvasive surgical procedures is such that reasonable restrictions on an HIV- infected surgeon are not prohibited. The hospital where the orthopedicsurgeon is employed required that the surgeon in question inform each of hispatients of his HIV status and secure a release prior to performing surgery. The Court concluded that the surgeon posed a " direct threat" to the healthand safety of his patients, thus permitting reasonable restrictions to beplaced on his practice by the hospital. ( Scoles v. Mercy Health Corp., No. 92- 6712, DC EPa. 12/ 18/ 94)
- PERSONAL LIABILITY REVISITED - This appears to be an issue which isdestined to come up again and again. An ADA and Section 504 lawsuit wasbrought against an Ohio hospital, which refused treatment for a " verystraightforward" allergic reaction to a patient who had AIDS. The patient was refused admission to Fremont Memorial Hospital by Dr. Hull, the on- call admitting physician, who remarked " if you get an AIDS patient in thehospital, you will never get him out." ( Apparently a " bottom line" kind ofphysician.) The U. S. District Court for Northern Ohio held that Hull couldbe found personally liable, stating " to hold differently would allowindividuals with both authority and the discretion to make decisions based ona discriminatory animus to violate theADA with a degree of impunity notenvisioned by Congress." ( Howe v. Hull, N. D. Ohio 1994) [ Contrast this withJudge Lancaster's opinion in Barb v. Miles, reported in " ADA News" No. 11, 1/ 20/ 95.] Agents of an employer, such as supervisors, managers and other decision- making personnel may be held personally liable under the ADA, according to a decision by the U. S. District Court for Northern Illinois. The decision has created a split between courts of that district as well ascourts of appeal. ( Jendusa v. Cancer Treatment Centers of America, No. 94 C 2211, DC NIll, 11/ 2/ 94)
- HOW LARGE IS THAT BACKLOG? - The EEOC estimates that, if no additionalcharges were filed with the agency, it would take nearly a year and one halfto process the current backlog. As of June 1994, over 92,000 charges wereunresolved, of which 34,877 are ADA- related. Allegations have been made thatEEOC investigators have falsified witness statements in order to forcesettlements of long- standing charges. Meanwhile, appellate courts inthree California cases have declared that workers compensation is the " exclusiveremedy" for injured workers and provides immunity for employers by precludingrecovery of damages under any other statute. The decisions seem to ensurethat employee/ employer disputes will be forced into federal courts, wherestate exclusive remedy provisions do not apply.
- TITLE II SUPPLEMENT - The Department of Justice has issued a 1994supplement to its Title II Technical Assistance Manual, further explaining and illustrating points concerning public entities, program accessibility, new construction and alterations, etc. Please advise anyone who is ( or shouldbe) using the DOJ TAM of the supplement.
- DRUNK EMPLOYEE - An employer may legally fire an employee who comes towork drunk, so long as the employer does not apply such restrictionsselectively, according to a federal court in Massachusetts. The firedemployee claimed his discharge was based on the fact that he is analcoholic, that other non- alcoholic employees were not fired under similarcircumstances and that some employees were retained and offered treatment. The court found that the ADA's express provision allowing an employer torequire that an employee not come to work intoxicated was a defense so long as no proof was produced that the employer's policy on drunkenness wasadministered selectively. ( Flynn v. Raytheon, D. Mass. 1994)
- FMLA and ADA - The Labor Department has published final rules implementingthe Family and Medical Leave Act, stating that the FMLA was not intended tomodify or affect the ADA, and clarifying situations where the two laws appearto overlap. The rules can be found in the January 6 edition of the FederalRegister ( 60 FR 2180).
That's all for this month. Hope to see many of you at the Task Forcemeeting on the 21st! @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 13 March 15, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with your colleagues, supervisors and subordinates. The views and opinion expressed herein aresolely those of the editor, except where noted, and do not represent theviews of the Office of Chief Counsel or the Department of EnvironmentalResources. Contributions, questions or comments, including requests foraccommodations needed to receive or apprehend this publication, should beaddressed to Patrick Bair ( Ed.).
- WELCOME ABOARD - The " ADA News" welcomes our four Regional Park Officesto its subscriber list. We hope you find this monthly a valuable andinteresting tool. Thanks to Dave Hernandez for suggesting the Regions beadded.
- CHANGES - The new administration has made changes in the way theGovernor's office ADA function is structured. Former ADA Director SandraChristianson has left State government. Leslye Herrmann, formerly Ms. Christianson's assistant, and the ADA function have been reassigned out ofthe Office of General Counsel and relocated to the Governor's Bureau ofAffirmative Action/ Contract Compliance, which itself has a new reportingrelationship. The Bureau, which reported directly to the Secretary ofAdministration under the Casey administration, will now report to thenewly- named Deputy Secretary for Administration, Charles Sciotto.
Copies of Ms. Christianson's " Report on the Status of Implementation ofthe Americans With Disabilities Act in the Commonwealth," her final report to the Governor, are available by request from OAA/ CC or your editor.
- AND MORE CHANGES - Newly appointed General Counsel Paul Tufano reportedlyhas an impressive background in the field of labor and employment law, andhas published several articles on the ADA.
- AND FINALLY - Deputy Secretary for Management and Technical Services John Plonski has been designated by Secretary Seif as the Department's new ADACoordinator. Welcome to the Task Force!
- KUDOS - To Bob Oberman, John Braun and company, whose perseverance wasfinally rewarded on February 23rd with completion of the installation of anautomatic opener on the door from MSSOB to the basement garage. Iunderstand that appreciative comment was not long in coming. Thisinstallation is a long- standing Task Force initiative. Congratulations, Bob, and HAVE A GREAT DAY!!!
- VANDE ZANDE REVISITED - Some of you may remember this decision reportedin law month's " ADA News." The decision, from the Seventh Circuit appealscourt, held an employer not liable for refusing to grant homework as areasonable accommodation to an employee who used a wheelchair. Now the U. S. District Court for Eastern Louisiana, which is in the Fifth Circuit, hasdenied an employer's motion for summary judgment on virtually the sameissue. The Louisiana court stated that its decision was distinguishablefrom Vande Zande, in particular because the employee in its case did notperform the majority of his duties in an office, but a substantial part ofhis job duties required him to work outside the office, and because theemployee had presented evidence that homework had been permitted for otheremployees. The Vande Zande court had emphasized that the absence ofsupervision with the potential reduction in the quality of the employee'sperformance was key to its decision. ( Anzalone v. Allstate Insurance Co., No. 93- 2248, DC ELa, 1/ 19/ 95)
- NCD ROUNDTABLE RECOMMENDATIONS - Participants in a recent roundtablesponsored by the National Council on Disabilities made recommendations, published in a Council report, regarding implementation of the Act. Some ofthe recommendations from the roundtable are attached below.
- TAKE YOUR TIME - In a confusing and, to public employers, disturbingdecision, the U. S. District Courtfor Eastern Wisconsin held that no expressstatute of limitations applies to claims brought under Title II of the ADA, including employment- related claims. What this means in layperson terms isthat there is no limit to the amount of time that may pass between the timethat a public employee with a disability experiences alleged discriminationand when that employee must file a legal claim. ( Statutes of limitation arecommon to all laws, including those prohibiting discrimination.) UnderTitle I of the Act, which covers all non- public employees, the practical time limit is 180 days, since such an employee must bring her/ his claiminitially to the EEOC which has a 180- day statute of limitations. Public employees, however, may bring their claims under Titles I or II.
The Wisconsin court observed that no statute of limitations is includedin the Act with respect to Title II claims, which generally concernchallenges to accessibility of public services or programs. Under federallaw, a federal court must apply state procedural law where no federal lawsupersedes, so the court applied what it saw as an analogous Wisconsinstatute which has a six- year statute of limitations. ( Perhaps publicemployees under Title II of the ADA are finally getting the " longer end ofthe stick," first with the ability to go directly into federal court and, now, the apparent ability to do so at their leisure.) ( Doe v. County of Milwaukee, No. 93- C- 1097, DC EWisc, 1/ 10/ 95)
- TOWN MEETINGS - The National Council on Disabilities is sponsoring aseries of " town meetings" around the nation to " compile success stories" about the ADA. A town meeting was held in Harrisburg on March 10. ( Ifanyone was able to attend the meeting in Harrisburg, we'd like to hear from you about your experience.) For dates and locations of other meetings, callMark Quigley at the NCD at ( 202) 272- 2004 or TTY ( 202) 272- 2074.
- SCOLES SETTLED - A case first reported in last month's " News" - Scoles v. Mercy Health Corp. - was ended by way of a confidential settlement agreementon February 7. The case involved a hospital's restrictions imposed on anorthopedic surgeon's practice in 1992 when it learned he was HIV- positive. The doctor claimed the restrictions - which he maintained violated the ADA - essentially destroyed his practice. ( Scoles v. Mercy Health Corp. of Southeastern Pennsylvania, No. 92- 6712, DC EPa, 2/ 7/ 95)
- STATE LOTTERY SUED - A group of Pennsylvanians with mobility impairmentshas sued the Commonwealth and the State Lottery Commission in federaldistrict court, claiming that by licensing agents to sell lottery tickets instores and businesses that are inaccessible, the state has violated the ADA. The West Virginia Supreme Court of Appeals recently decided a similar lawsuit in favor of the plaintiffs. Stay tuned ... ( Von Schmetterling v. Kline, No. 95- CV- 599, DC EPa, filed 2/ 1/ 95)
- WOLF AT THE DOOR? - The following item appeared in the February 23, 1995issue of BNA's ADA Manual Newsletter:
- ADA TRANSPORTATION COSTS: During a House Appropriations TransportationSubcommittee meeting Feb. 7 with Transportation Secretary Federico Pena, Subcommittee Chairman Frank Wolf ( R- Va) said he is interested in reviewingthe cost of numerous regulations associated with transportation funding, including the impact the ADA has on transit and Amtrak. Wolf urged Pena toprovide the subcommittee with specifics on what the various federal laws addto the cost of transportation projects and systems, saying that byeliminating some of these regulations, transit authorities and others mightbe better able to shoulder funding cuts.
- SENATORS REFLECT ON ADA IMPACT - In a recent issue of the " Iowa LawReview," Senators Tom Harkin ( D- Iowa) and Robert Dole ( R- Kan.) expressed their views on the impact of the ADA in separate articles. Both menapplauded the efforts made by both government and businesses to implementthe law, but each voiced concern that the Act had not yet resulted in thesort of broad change envisioned by its proponents. Senator Dole proposed anational strategy to bring the employment rate among persons withdisabilities in line with that of the non- disabled by the year 2000.
- FMLA UPDATE - As you may remember from last month's issue, the U. S. LaborDepartment issued final regulations in January implementing the FamilyMedical Leave Act (" FMLA"). The FMLA entitles eligible employees to take upto 12 work weeks of unpaid leave a year for various circumstances, includingchildbirth, adoption or a bona fide " serious health condition" of theemployee or a close relative. In January it was reported that the FMLA wasnot intended to override the ADA. There are some other interesting aspectsof FMLA interpretation which could have some bearing on the ADA, e. g.
- According to the Labor Department, individual supervisors can befound liable for violations of the FMLA. The Labor Department reasonedthat, since the definition of " employer" in the FMLA is the same as in theFair Labor Standards Act ( FLSA), it includes any person who acts directly orindirectly in the interests of the employer to any employee.
- FMLA regulations provide that an employer is required to assign areturning employee to an " equivalent" position, though not necessarily thesame position as vacated. The conflict with the ADA, therefore, remainsinsofar as the ADA would likely require a qualified employee's return to thesame position.
- Under the FMLA, an employer may select any 365- day period as thecalendar year, so long as the standard is uniformly applied. No obligationwould remain under the FMLA toward an employee who has exhausted her year'sentitlement. Under the ADA, a duty would still exist to consider reasonableaccommodation, even where the employee has exceeded the FMLA's 12- workweek maximum.
- FMLA leave is a " superior right" to a reasonable accommodationreassignment under the ADA. In other words, if an employee's healthprevents him from performing the essential functions of his position, theemployer must grant the employee's request for FMLA leave before consideringreassigning that employee to a vacant position as a reasonableaccommodation.
- Questions on the FMLA optional certification form for medical leavesolicited more medical information from the employee than needed under thatlaw, thus making the inquiries unlawful under the ADA. The Labor Departmentis issuing a revised form.
- MULTIPLE CHEMICAL SENSITIVITY POLICY - About one year ago, the University of Minnesota School of Social Work adopted a " no scent" policy which bansthe use of fragrances and scents in order to protect students and facultywith Multiple Chemical Sensitivity (" MCS"). Not everyone is happy about the policy. There is some debate in the medical/ scientific community aboutwhether MCS exists, as well as debate in the legal community whether MCSshould be recognized as a " disability" under the ADA.
Persons with MCS claim toexperience severe allergic reactions tocertain fragrances, such as cleaning solutions and perfumes; reactions mayinclude headaches, fatigue, muscle aches, and irritated eyes, ears, nose, throat and/ or skin. Although the " jury is still out" on whether MCS will be found to be a disabling condition entitled to legal protection, there is noquestion in the minds of those who suffer from it. Says Donna Armstrong, " Some people look at you and think you're just weird ... but when they seeyou have a reaction, all doubt is wiped away."
- REMINDER - The next ADA Task Force Meeting is scheduled for next Tuesday, March 21, in the 10th floor conference room. Hope to see you there! Recommendations of the NCD Roundtable, by Title:
TITLE I
- More enforcement resources for EEOC
- More information regarding environmental/ chemical sensitivity issues
- Medical professionals need to learn more about " essential jobfunctions"
TITLES II & III
- More exploration needed on how to meet the needs of individuals with" invisible" disabilities
- More use of sign language interpreters by law enforcement personneland uniform qualification standards for interpreters
- More " front- end" planning to avoid the costs of retrofitting
- Training at the highest level of an organization if real change is tooccur
- Clarification of ADA requirements for barrier removal
- Development of a certification program for ADA consultants
TITLE IV ( TELECOMMUNICATIONS)
- Software developers must ensure that new products are accessible topersons with disabilities ( e. g. icon- driven programs, such as Windows, are generally not accessible to persons with visual impairments)
- Making voice mail technology more accessible to persons with hearingimpairments requiring the use of TDDs @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 14 April 15, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with your colleagues, supervisors and subordinates. The views and opinion expressed herein aresolely those of the editor, except where noted, and do not represent theviews of the Office of Chief Counsel or the Department of EnvironmentalResources. Contributions, questions or comments, including requests foraccommodations needed to receive or apprehend this publication, should beaddressed to Patrick Bair ( Ed.).
- " THE ADA DOES NOT REQUIRE CLAIRVOYANCE" - That was the opinion of the Court of Appeals for the Seventh Circuit when it determined that an employerwhich is unaware of an employee's disability cannot be found liable fordiscriminating under the law. The employee's supervisor in this case wasaware of the employee's symptoms, diagnosis and his extensive use of leavefor medical appointments, but had kept the information confidential at theemployee's request. After the employee was laid off in a company downsizingand brought suit under the ADA, the employer demonstrated that it had noknowledge of the disability. ( Hedberg v. Indiana Bell Telephone Co., 4 AD Cases 65, CA7, 2/ 21/ 99)
- DOJ TITLE III SETTLEMENTS - The Department of Justice has recentlyannounced the settlementof actions under Title III of the ADA against" Nobody Beats the Wiz" music stores and the Lone Star Steak House and Saloonrestaurant chain. Each had claims filed against it charging that facilitieswere not accessible under the Act. As part of their settlements, each will" donate" a substantial portion of earnings to disability rights groups. - REVIEW DENIED - The U. S. Supreme Court denied review of two appellatecourt decisions which affirmed the denial of lawsuits brought by twoemployees. Each court had found an employee not to have a disability basedon the employee's inability to perform just the essential functions of aspecific job. One case - Bolton v. Scrivner - was reported in the November 1994 edition of this publication.
- CARPAL TUNNEL CLAIM - The claim of an assembly line worker at Toyota'smanufacturing plant in Kentucky that her carpal tunnel syndrome was adisability entitling her to protection under the ADA was denied by a federalcourt. The court found that the employee had failed to prove that she was" significantly restricted in her ability to perform a class of jobs or abroad range of jobs" as required by EEOC rules. " Merely because [ theemployee] can no longer perform repetitive factory work does not render her significantly limited under the ADA," according to the decision. ( McKay v. Toyota Motor Manufacturing, U. S. A., Inc., No. 93- 492, DC EKy, 2/ 27/ 95)
- PERSONALITY TRAIT OR MENTAL DISORDER? ( REVISITED) - In September, Ireported what was to become one of the most often discussed decisions ofwhich I am aware. In Hindman v. GTE Data Services, Inc., a federal court inFlorida refused to grant summary judgment in favor of an employer where ithad fired an employee who brought a firearm into the employer's premises. The court said that if the incident was the result of a mental disorder, itcould present a bona fide disability- related claim. Now that same court hasgranted the employer's motion to dismiss at the close of the employee'scase, stating that bringing a loaded gun into the workplace " doesn't admitof an extenuating circumstance." Whew! ( Hindman, No. 93- 1046- CIV- T- 17( C), DC MFla, 1/ 20/ 95)
- EXPANDED DISABILITY DEFINITION - On March 15, the EEOC issued amemorandum " clarifying" the definition of " disability" under the ADA. Issued as Section 902 of the EEOC Compliance Manual, the memorandum, including a four- page " Executive Summary," is sixty- two pages long. Representatives of the Office of Affirmative Action/ Contract Compliance and I are reviewing the document and will comment as appropriate in futureeditions.
- INTERVIEWING REMINDER - Those of you who attended the Department's ADATraining Course a few years ago should remember that interviewer's arerequired to ask of all candidates for positions the question, " Are you ableto perform the essential job functions of this position with or without anaccommodation?" ( If you were unable attend the course, I hope someone hasrelayed this information to you, especially if you conduct interviews.) As those who regularly ask this question will affirm, the question elicits awide variety of responses, from " Huh?" to a detailed explanation of acandidate's medical history. Regardless of the response you get, the only information you need is " Yes" or " No." Once you get a yes or no answer, write only " Yes" or " No" in your interview notes and move on. Do not writeany notes that may indicate a candidate's disability status. Recording aresponse such as " Can do job without accommodation" can get us in moretrouble than you may think! Keep it succinct!
- CORRECTION - In an article in last month's " ADA News," the time forfiling a charge with the EEOC was declared to be 180 days. If one takesinto consideration that the EEOC has an agreement with the PennsylvaniaHuman Relations Commission which makes the PHRC a " Fair Employment Practice" agency, the practical limitation for filing a charge under EEOC regulationsin Pennsylvania becomes 300 days.
I hope you are all having a pleasant Easter/ Passover holiday, or justenjoying a beautiful weekend in a secular manner. See you on Tuesday at theTask Force meeting!
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" News Reviews to Peruse"
Number 15 May 15, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with colleagues, supervisorsand subordinates. The views and opinion expressed herein are solely thoseof the editor, except where noted, and do not represent the views of theOffice of Chief Counsel or the Department of Environmental Resources. Contributions, questions or comments, including requests for accommodationsneeded to receive or apprehend this publication, should be addressed toPatrick Bair ( Ed.).
- AADAC CONFERENCE - Your editor recently attended the annual conference ofthe Association of ADA Coordinators in Atlanta, Georgia. The three- day conference, which brought together state and municipal coordinators from overa dozen states and Puerto Rico, was interesting and informative. Informationfrom the conference has already been shared with some of you. Thanks to allwho were responsible for my attending this worthwhile conference.
- BAR MEMBERSHIP QUESTIONS - A U. S. District Court has recently ruled thata question on the Virginia Board of Bar Examiners' membership examination - " Have you within the past five years been treated or counseled for anymental, emotional or nervous disorders?" - and requiring further explanation of affirmative responses is overly broad and violates the ADA. In caseafter case, similar broad- based questions about an applicant's treatmenthistory have been struck down. Pennsylvania is one of only seven stateswhich asks no mental health related questions on its bar application. ( Clark v
. Va. Board of Bar Examiners) - PROPOSED EEOC/ OCR/ OFCCP MERGER - Local Congressman William Goodling has joined with Wisconsin Representative Steve Gunderson to sponsor legislation which would merge the federal Department of Education with the LaborDepartment. Under the proposal, the activities of the Equal EmploymentOpportunity Commission ( EEOC), Education's Office of Civil Rights ( OCR) andthe Labor Department's Office of Federal Contract Compliance Programs ( OFCCP) would be coordinated by a single deputy secretary for civil rights in thereconstituted Department of Education and Employment. EEOC Chairman GilbertCasellas said the effort to put the EEOC into an even larger bureaucracy seemed " counter- intuitive." Declining to debate the merits of theindividual programs, Gunderson claimed that the consolidation would save thefederal government $ 21 billion over five years.
- " DISABILITY" FURTHER DEFINED - You will remember that last month it wasreported that the EEOC had issued further guidance on the definition of theterm " disability" as it is used in the ADA. The guidance was issued asSection 902 of the EEOC Compliance Manual, which is designed for EEOC staffas well as for employers and employees. EEOC's policy chief on ADA PeggyMastroianni says it is hoped that the guidance will help eliminate some ofthe confusion about the law and cut down on so- called " peripheral" disability cases such as those involving body odor or infertility treatments. Guest editor Donna Hoskins, OAA/ CC has contributed an article in which shetries to briefly explain the additions from Section 902. The article isattached to this edition. Thanks, Donna.
- INDEFINITE LEAVE NOT A REASONABLE ACCOMMODATION - The Fourth CircuitCourt of Appeals in a recent decision has stated that an employer does nothave to grant indefinite leave as a reasonable accommodation. The employee, who experienced complications from diabetes, asked the employer to place him on indefinite leave at half salary until his medical problems were resolved. The employer refused and offered the employee termination or retirement, of which he chose the latter, then sued under the ADA. The Court stated thatthe ADA does not require an employer to wait indefinitely for an employee'shealth problems to be corrected. In the Court's opinion, reasonableaccommodation means a change that presently or in the immediate future willenable the employee to perform the essential functions of the job. ( Myers v. Hose, CA 4, No. 94- 1840, 3/ 29/ 95)
- ADA/ NLRA CONFLICTS - EEOC Chair Gilbert Casellas was scheduled to meetMay 1 with NLRB Chair William Gould to resolve possible conflicts betweenthe ADA and the National Labor Relations Act. This debate has been going onsince before the ADA's passage in 1992. Gould has indicated that conflictsbetween the laws should be submitted to the collective bargaining procedure; Casellas said the EEOC " has a slightly different opinion."
- CELLULAR DISCOUNTS - Responding to the needs of the disability community, Cellular One has established a program called Enable- Link which offers peoplewith vision or mobility impairments discounts on cellular telephone equipmentand service. Enable- Link customers pay $ 10 a month instead of the minimum $ 25monthly paid by other accounts, and only 45 cents per minute at peak times. Cellular One also dedicates one customer care representative exclusively to the Enable- Link program as a point of contact.
- BUILDING CODE CERTIFICATION - Under Section 308( b) of the ADA, the U. S. Attorney can certify that state and local building codes meet or exceed therequirements of Title III for alterations or new construction. Suchcertification would present a rebuttable presumption that any buildingconstructed or altered to be in compliance with a certified code would alsobe in compliance with the Act. On March 30, 1995, the Justice Departmentannounced that it had granted final certification to the State ofWashington's building code, the first code so certified. Applications forcertification are currently pending from Florida, New Mexico, Texas and Utah. The proposed New York code has been denied certification.
That's all until next month! New EEOC Guidance on " What is a Disability?" - Donna Hoskins
The EEOC has now published a document ( Compliance Manual Section 902), which is designed to help its investigators determine whether an individualhas a disability under the ADA. The full document is 56 pages long. Pertinenthighlights are being included in this article, but if you are interested inreading the entire document, please contact the OAACC for a full copy of thedocument. For an individual to have a disability as defined by the ADA, the person must:
- have a physical or mental impairment, or have a record of such animpairment, or be regarded as having such an impairment; and,
- this impairment must substantially limit a major life activity.
To determine if an individual has a disability as defined by the ADA, you need to ask the following three questions:
1) Does a physical or mental impairment exist?
2) Does this impairment limit a major life activity?
3) Is the limitation substantial?
Does a physical or mental impairment exist?
EEOC defines impairment as " physiological disorder affecting one ormore of a number of body systems or a mental or psychological disorder." Thefollowing are not impairments under the ADA:
- Environmental, cultural and economic disadvantages.
- Homosexuality and bisexuality.
- Pregnancy
- Physical characteristics
- Common personality traits
- Normal deviations in height, weight or strength.
Does the impairment limit a major life activity?
The EEOC had previously provided examples of major life activities. Examples of physical major life activities are such things as caring foroneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, sitting, standing, lifting and working. The Compliance Manualhas provided expanded examples of mental major life activities. These now include learning, thinking, concentrating, and interacting with others.
Is the major life activity that is affected by the impairment substantially limited?
The EEOC has provided the following guidelines for determining if animpairment is substantially limiting:
- Is the ability to perform a major life activity significantlyrestricted, compared to the ability of the average person in the generalpopulation? * Does the impairment prevent or significantly restrict theperson from performing a class of jobs, or a broad range of jobs in variousclasses?
- Is the impairment a temporary condition that is taking significantlylonger to heal than usual, or potentially long term?
- Is the impairment a chronic/ episodic disorder that is substantiallylimiting when active, or does it have a high likelihood of recurrence?
- Does the individual have two or more impairments that are notsubstantially limiting by themselves, but together substantially limit amajor life activity?
If the answer to any of the above three questions is no, then theindividual does not have a disability as defined by the ADA. Keep in mindthat if the employer believes the individual to have a physical or mentalimpairment, and believes that the impairment substantially limits a majorlife activity, the individual does meet the ADA definition of disability.
SPECIAL NOTE: The Compliance Manual deals only with the definition ofdisability, and does not deal with essential job functions and/ oraccommodations. An individual who has an impairment that meets the ADAdefinition of " disability" is not necessarily a " qualified individual with adisability", if that person is not capable of performing the essentialfunctions of the job, with or without an accommodation. @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 16 June 20, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with colleagues, supervisorsand subordinates. The views and opinion expressed herein are solely those ofthe editor, except where noted, and do not represent the views of the Officeof Chief Counsel or the Department of Environmental Resources. Contributions, questions or comments, including requests for accommodations needed toreceive or apprehend this publication, should be addressed to Patrick Bair( Ed.).
- ADAAG REVISIONS - Stating that the ADA Accessibility Guidelines is a " living document," technical assistance coordinator Marsha Mazz of the ADAAGReview Advisory Committee announced that the ADAAG are due for a revision. After working with the guidelines for several years, the Access Board islooking for " real refinement." The changed ADAAG are expected in Septemberthis year and will incorporate new guidelines for state and localgovernments. Subcommittee meetings are open to the public; information canbe obtained by calling ( 202) 272- 5434 ( voice) or ( 202) 272- 5449 ( TDD).
- ATTENDANCE A HEADACHE, BUT IS IT AN ESSENTIAL FUNCTION? - A court in Nebraska found that regular attendance is not an essential function where theemployer had no written policy on unscheduled absences, never documentedmeetings with the employee, never requested a doctor's note despite frequentabsences and never gave her a written evaluation. Ruling that the employee'smigraine headaches were a disability under the Act, the court wrote that anaverage of nine unexpected absences per year for five years was notexcessive. The employer was awarded judgment, however, because the court found that the employee had never notified the employer of her disability. ( Carlson v. Inacom Corp., DCNeb, No. 4: CV94- 3008, 2/ 21/ 95.)
- SPECTACOR SUIT - The EEOC has filed suit against Spectacor, Inc. - which manages the Spectrum Arena in Philadelphia, among other sport/ entertainmentvenues - on behalf of an employee with AIDS. The EEOC charges that Spectacorfailed to reasonably accommodate the employee by allowing him to work athome, and violated the ADA when it disclosed the employee's condition to others not privileged to the information. ( EEOC v. Spectacor Management Group/ Spectacor Inc., DC EPa, No. 95- 2688, filed 5/ 5/ 95)
- INTERVIEWING VIDEO - A new video entitled " Interviewing Individuals WithDisabilities: Techniques for a Better World" is available from theIndustry- Labor Council. The video focuses on applicants for professional andtechnical positions and points out subtle mistakes often made bywell- intentioned, but untrained interviewers. For information, call ILC at ( 516) 747- 6323.
- PRODUCTS CATALOGUE - " ADA Accessibility, Assistive, Supportive or JobAccommodation," a catalogue of ADA- related products and their manufacturers, has been published by John Costa and is available. The catalogue listsmanufacturers of accessible alarms, bathtubs, calculators, carrels, chairs, clocks, desks, computer accessories, telephones and more than 1100other items. The catalogue, which will be updated annually, costs $ 195.00 and isavailable from the author at Box 22G, RR2, Walwallopen, PA 18660.
- SMOKE FREE FAST FOOD - The federal appeals court for the second circuithas reversed the decision ofa lower court to dismiss the ADA claims of threeasthmatic children and a woman with lupus against the smoking policies ofMcDonald's Corp. and Burger King Corp. The plaintiffs charged that therestaurants' policies of allowing smoking in their restaurants violated Title III of the Act. The district court had decided that Title III did notmandate a total ban on smoking in fast food restaurants and that to imposesuch a ban would be an unreasonable burden. In overturning the decision, theappellate court said " we see no reason why, under the appropriatecircumstances, a ban on smoking could not be a reasonable modification." The case will be returned to the district court to conduct a fact- specific inquiry as to whether the requested relief - a total ban - was unreasonable. ( Staron v. McDonald's Corp., 2d Cir. 1995)
- REASSIGNMENT/ CBA CONFLICT - A federal district court in Texas has deniedan employer's motion to dismiss which argued that its efforts to reasonablyaccommodate an employee's disability by reassignment were precluded by theseniority provisions of the applicable collective bargaining agreement(" CBA"). The employee, who has multiple sclerosis, refused severalreassignments offered him during a company downsizing, then filed a claim alleging discrimination under the ADA. The court denied the employer'sdismissal motion, stating that the reassignment/ CBA conflict is " merelyanother factor in examining the reasonableness of the proposed accommodation." The court rebuffed the employee's argument, however, thatthe employer was required to offer him any vacant position for which he wasqualified in any of its facilities as a reasonable accommodation. The courtheld that the potential for reassignment to another facility was only necessary if that same option was also available to any non- disabled employee. ( Emrick v. Libbey Owens Ford Co., 4 A. D. Cases 1, EDTex. 1995)
- EEOC ADA CLAIMS NOT TO BE STREAMLINED - According to Naomi Levin, an ADA specialist at the EEOC, the EEOC's move in April to streamline its complaintprocedure by giving greater discretion to the general counsel and fieldoffices in the handling of complaints will not apply to disability claims, because of the scarcity of case law on the ADA.
- MOST ADA CASES HAVE MERIT - Addressing criticism that the ADA is beingused to protect malingerers, EEOC Chairman Gilbert Casellas told the annualconference of the President's Committee on Employment of People withDisabilities that the cases he sees are meritorious. He cited several casesinvolving " blatant and pernicious discrimination," among which are a casewhere an employer refused to provide a stool to an employee with a partiallyamputated leg; an employer who fired an employee with AIDS after polling hisco- workers to see whether they wanted to continue working with him; and anemployer who refused to hire an individual who used a wheelchair for a job asa schoolteacher. Casellas stated that the hiring process is still receivingmuch of the Commission's attention. He added that in fiscal year 1994, theEEOC received more than 71,000 private sector charges, and obtained over $ 175million in relief for charging parties through litigation and non- litigation measures.
- EMPLOYER/ EMPLOYEE? - A federal courtin Philadelphia has shed some lighton the question " What constitutes an ` employee' for purposes of the ADA?" The court refused to grant summary judgment to Prudential Insurance Co. in alawsuit filed by a computer services contractor who worked on- site for Prudential. The court said that the contractor, who was employed by BancTecInc., was entitled to a trial on the issue, adding that the question ofwhether Prudential is the worker's " employer" would be resolved under acommon- law agency test, addressing whether Prudential had the right tocontrol the manner and means by which the work was accomplished. ( Poff v. Prudential Insurance Co., 4 AD Cases 589, DC EPa, 5/ 2/ 95)
- DISABILITY- BASED HARASSMENT? - In yet another ground- breaking Pennsylvania case, a community college student has brought suit in theEastern District alleging that a professor deprived her of the benefit of aneducation by harassing her on the basis of her mental disability. The suitwas brought against the college and the professor in his individual capacityunder Title II of the Act. In a dismissal motion filed by the professor, itwas argued that he was not a public entity subject to Title II and that theADA does not cover private harassment by public employees. The court denied the motion, stating that such harassment by a " public actor" falls within theambit of the ADA. Shades of personal liability? ( Read on.) ( Doe v. Marshall, 4 AD Cases 487, DC Pa, 4/ 13/ 95) - PERSONAL LIABILITY - Can supervisors/ managers be held individually liable for ADA violations? That question was answered with a resounding " no" recently by a federal appeals court in a familiar case, EEOC v. AIC SecurityInvestigations, Ltd. Those of you who participated in the Department's ADAtraining course years ago will remember this case as the one in which thecompany's owner fired its executive director after finding he had terminalbrain cancer. The trial court found in favor of the employee in a lawsuitbrought by the EEOC, awarding punitive damages of $ 250,000each against thecompany and its owner. ( Total damages were later reduced to $ 200,000 each.) The 7th Circuit court affirmed the verdict and most of the award, butreversed the lower court's finding of personal liability against the owner. The court decided that the definition of " employer" under the ADA does notlend itself to individual liability. While no other circuit court has ruledon the question of individual liability under the ADA, six other courts haveexamined the question under Title VII of the Civil Rights Act. Only theSixth Circuit has recognized individual liability under the Civil Rights Act. ( EEOC v. AIC Security Investigations, Ltd., 4 AD Cases 693, CA7, 5/ 22/ 95)
This is the last issue of the " ADA News" to be published under the auspices of the Department of Environmental Resources ( making it a realcollector's item!). The ADA networking we've all done together in the pastthree years has been of invaluable assistance to the Department in makingadjustments necessary under the ADA. Here's hoping we can continue thesebeneficial relationships after we are sister agencies. See you in July! @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 17 July 14, 1995
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisorsand subordinates. The views and opinion expressed herein are solely thoseof the editor, except where noted, and do not represent the views of theOffice of Chief Counselor the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodationsneeded to receive or apprehend this publication, should be addressed toPatrick Bair ( Ed.).
- WAIVER OF FHWA DENIED - The federal appeals court for the District of Columbia has denied an application submitted by three truck drivers withhearing impairments who asked for a waiver of the Federal HighwayAdministration's hearing requirement for interstate drivers of commercialmotor vehicles. The drivers argued that the FHWA requirement violatesSection 504 of the Rehabilitation Act by excluding individuals with adisability based on an absolute standard, rather than allowing for anindividualized assessment of each person's ability to drive. The courtstated that the drivers' application for waiver of the standard wasinappropriate and that the proper forum for the drivers was to petition formodification or repeal of the rule itself. ( Buck v. U. S. Dept. ofTransportation, 4 AD Cases 833, CA DC, 6/ 13/ 95)
- CURB CUTS DELAYED? - Several U. S. Senators, including Senators Bob Dole, Orrin Hatch, Tom Harkin and Ted Kennedy, have requested that the Departmentof Justice permit an extension of time for installing curb ramps inexisting curbs, as required by the ADA. The request, which is seen as a common sense adjustment to reality, has the support of the National League of Cities andthe Paralyzed Veterans of America. Maureen McCloskey of PVA stated that, while it would have been better to see ramps installed on time, a timetablefor future installation is better than numerous " individual lawsuits beingfiled." Meanwhile, disability groups in Philadelphia have conducteddemonstrations and are threatening lawsuits for that city's failure to meetthe Act's timetable for installation.
- EEOC BACKLOG " UNACCEPTABLE" - A representative of the General AccountingOffice recently testified at an oversight committee hearing that, whilesteps to reduce the EEOC backlog are " steps inthe right direction ... we doubt that these new steps alone can solve EEOC's charge processing problem." The backlog has precipitated a move to shift more responsibility forprocessing complaints to state " fair employment practice agencies" ( FEPAs), ( e. g. the Pennsylvania Human Relations Commission). On May 22, the EEOCadopted recommendations of its FEPA task force designed to reduce costly, time- consuming and unnecessary duplication and lessen micro- management of FEPAs by the EEOC.
- JULY IS THE FIFTH ANNIVERSARY OF THE ADA'S ENACTMENT!
Just a short edition of the " News" this month. Don't forget - next meeting of the Task Force is at 9 on Tuesday, 7/ 18. See you then! @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" NEWS REVIEWS TO PERUSE"
Number 18 AUGUST 14, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with colleagues, supervisorsand subordinates. The views and opinion expressed herein are solely those ofthe editor, except where noted, and do not represent the views of the Officeof Chief counsel or the Department of Environmental Protection. Contributions, questions or comments - including requests for accommodationsneeded to receive or apprehend this publication - should be addressed toPatrick Bair ( Ed.).
- FAILURE TO PROVIDE LEAVE - A federal district court in Philadelphia hasfound that an employer violated the ADA when it refused to grant a leave ofabsence to an employee to seek treatment for alcoholism. The employer alsowas found to have fired the employee for seeking treatment. [ You know wewill hear more of this.] ( Corbett v. National Products Co., 1995 U. S. Dist. Lexis 6425 ( EDPA. 1995))
- MULTI- MILLION DOLLAR VERDICT AGAINST COKE - A federal jury in Dallas has awarded $ 7.1 million to a Coca- Cola executive fired while being treated foralcoholism. The company defended its action by claiming that the firing wasbased on " performance issues" and the executive's " violent and threatening" behavior. In addition to not accepting the company's excuse, the jury wasapparently upset that none of the company's managers had been trained todeal with alcoholism. The jury verdict will be reduced by the court - the current ceiling on total ADA damages is $ 300,000. ( Burch v. Coca- Cola Co., DC NTex, No. 3: 94- CV- 1894- BD, 6/ 28/ 95)
- EXXON VALDEZ WAKE SWAMPS EMPLOYEES - A company- wide substance abusepolicy, implemented after the Exxon Valdez oil spill, has caused the demotionof at least two Exxon employees with treatment histories. The policydesignates certain " safety" positions and excludes anyone with a history ofsubstance abuse from those positions. In the case of one employee, treatmentfor substance abuse had ended 25 years ago when the employee was 18, andExxon had known about the treatment when he was hired. The EEOC has filedsuit against the company, claiming that the general policy violates therequirement for an " individualized assessment" of each employee's ability toperform a job. The company responded, declaring that an employer may facepunitive damages in one case for returning a rehabilitated drug or alcoholuser to work, and in another case for not returning the employee. ( EEOC v. Exxon Corp., DC NTex, No. 395- CV1311- D, 6/ 28/ 95)
- SMOKING & PREGNANCY - DISABILITIES, OR NOT? - Here's one that escapes me. A federal district court in Illinois has denied an employer's motion todismiss the ADA claim of an employee who was experiencing complications withher pregnancy and who violated the employer's " no smoking" policy. The courtcharacterized pregnancy as a " recognized disability" under the ADA and foundthat the firing based on the smoking violation could be pretextual. ( I know, I know - we told everyone that neither smoking nor pregnancy is a coveredcondition under the ADA. Until proved wrong, I stand by that statement.) Stay tuned. ( Chapsky v. Baxter, DC NIll, No. 93- 6524, 3/ 1/ 95)
- IMPROPER INTERVIEW - In the first award of its kind, a jury in Houstonhas awarded a total of $ 45,000 to a job applicant who had been askedquestions during a pre- offer interview about the nature and severity of hisdisability. According to the EEOC, this is the first award of punitive andcompensatory damages for an unlawful inquiry under the ADA. The same jury, however, refused to find that the company had discriminatorily refused to hire the applicant for the job in question. ( EEOC v. Community Coffee Co. Inc., DC STex, No. H- 94- 1061, 6/ 28/ 95)
- ATTORNEYS GENERAL SPEAK ON ADA - In what will hopefully not be a futilegesture, present and former U. S. Attorneys General Janet Reno and DickThornburgh recently editorialized in the Wall Street Journal about the" record of substantial achievement" of the ADA. In a joint editorial in the July 26 edition, Reno and Thornburgh responded to charges that the Act hasproved too expensive and burdensome for American business, contending insteadthat "[ m] ost people in the business community understand that the ADA hasbeen good for business." " The ADA strikes a carefully calibrated balancebetween the rights of people with disabilities and the legitimate concerns ofbusiness and government, including cost. It merely codifies common sense." Reno and Thornburgh concluded by reaffirming their commitment to making thegoals of the ADA a reality.
That's all, folks! I was disappointed to learn that this month's TaskForce meeting was canceled. Please place the September - Tuesday, September18 - meeting on your calendars, especially those of you who have missed a few meetings. It sure would be nice to see some fresh faces! @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 19 September 15, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with colleagues, supervisorsand subordinates. The views and opinion expressed herein are solely those ofthe editor, except where noted, and do not represent the views of the Officeof Chief Counsel or the Department of Environmental Resources. Contributions, questions or comments, including requests for accommodations needed toreceive or apprehend this publication, should be addressed to Patrick Bair( Ed.).
- WELCOME! - To our newest Task Force member Audrey Kembel. Audrey, formerlyof Water Supply and Community Health, recently moved into the position inM& TS left vacant by the departure of Janis Dean and will assume the role ofDEP ADA Coordinator. Best of luck, Audrey!
- SAFEWAY STORES SETTLEMENT - Safeway Inc. has recently reached anagreement with the Department of Justice and others to provide greater accessto its stores. Primary among the complaints was that Safeway's stores weremade inaccessible by shopping cart security " bollards" ( poles) used toprevent the theft of shopping carts. Safeway will undertake a nationwidesurvey of its stores to correct this and other accessibility barriers.
- EMPLOYEE VOTES INAPPROPRIATE - You wonder sometimes, don't you, if thesestories are made up? The EEOC has recently settled a lawsuit it broughtagainst Gulf Grinding Co., in which the EEOC charged Gulf Grinding withviolating the ADA's confidentiality provisions, among others. Upondiscovering that an employee ( John Doe) had AIDS, the company convened its other employees, told them about the AIDS- infected employee and asked them to vote on whether he should be permitted to continue working. Doe lost thevote and was fired. In the settlement, Gulf Grinding agreed to never againconduct a similar employee vote on personnel decisions; to keep employeemedical information strictly confidential; to ensure equal opportunityregardless of disability status; provide training for its managers andsupervisors; and paid Doe $ 65,000. Gulf Grinding did not admit any violationof the ADA.
- THE STREETS OF PHILADELPHIA, PART II - The city of Brotherly Love has onceagain been sued under the ADA. Many of you will remember ( I hope) that thecity was ordered to install curb cuts in sidewalks adjacent to all newlyresurfaced streets in Howard v. Yerusalim. Now, plaintiffs have alleged thatthe city has failed to adopt a transition plan which requires curb ramps forstreets serving businesses, hospitals, libraries and othermunicipal and governmental entities and public accommodations. ( Koch v. City ofPhiladelphia, C. A. No. 95- CV- 4270)
- DISABILITY MUST BE KNOWN OR REVEALED - The 8th U. S. Circuit Court of Appeals has recently held that where a disability is not manifestedobviously, employees must tell their supervisors that they need to beaccommodated. The Court reaffirmed the ADA's provision that " it is theresponsibility of the individual with a disability to inform the employerthat an accommodation is needed." The case involved an employee with manicdepression who never revealed her condition or requested an accommodationuntil after she was terminated. ( Miller v. National Casualty Co., 8th Cir. 1995)
- ADA, ADEA AND TITLE VII HAVE COMMON PURPOSE - The Third Circuit court has joined the courts in the Fourth and Seventh circuits in holding that theburden shifting rules of Title VII and the ADEA also apply to the ADA, andthat the methods and manner of proof should be the same for claims under eachstatute. In a typical setting, an employee charging discrimination mustfirst make a prima facie case of discrimination, thus shifting the burden tothe employer, who must then show a legitimate, non- discriminatory reason forthe personnel action. If the employer carries its burden, the burden shifts to the employee who must show the employer's reasons to be pretextual. ( Newman v. GHS Osteopathic Inc., 4 AD Cases 1051, CA 3, 7/ 17/ 95)
- HARASSMENT CLAIM ALLOWED - A federal district court in Georgia haspermitted a claim of disability- based harassment go forward to a jury trial. The court observed that the EEOC's implementing regulations for ADA Title Iprovide that harassment on the basis of disability is unlawful. Permittingharassment- based claims serves the purposeof protecting employees with disabilities from workplace discrimination, according to the court. ( Haysman v. Food Lion, DC SGa. No. 494- 175, 7/ 18/ 95)
- NEW EEOC TOLL- FREE NUMBER - The EEOC has a new toll- free telephone numberfor public requests for EEOC publications: 1- 800- 669- EEOC. - NCD FUNDING CUT - Appropriations bill HR 2127, passed August 4, would cutfederal money for the National Council on Disability as well as reducing oreliminating federal funding for research, demonstration, training and technical assistance for programs for people with disabilities. PresidentClinton has promised to veto the bill if it reaches his desk in its presentform.
- RIVERA ARTICLE - The attached article was published in a recent editionof the " Handicap Digest," an online periodical to which you editorsubscribes. I thought some of you may find it interesting. Your comments, asalways, are welcome.
Hope to see you all at the Task Force meeting on the 19th. ------
Subject: Re: Poll: Technology and the Disabled, please help From: jarivera@ ccwf. cc. utexas. edu ( Jorge Arturo Rivera) Organization: TheUniversity of Texas at Austin, Austin, Texas
Cultural Awareness Project - CAP Jorge Arturo Rivera
TECHNOLOGY AND THE DISABLED
BACKGROUND
Human disability can be thought of as the inability or extreme difficulty toclearly perceive external signals ( like light, vibration or sound), processthem, or produce them ( likemuscular movements or speech) ( Rivera, 1993). The first case, known as sensory disability, includes blindness and deafness. The second case usually includes certain cognitive disabilities, likeautism, mental retardation and dyslexia. The third case applies to paraplegia, spasticity and certain cases of speech impairment, among others.
Special technology, understood as a set of man- made tools, can help disabled individuals cope with the limitations that affect their everyday life. Thisis known as assistive technology, and can be classified as rehabilitationalor adaptive technology. Rehabilitational technology attempts to eliminate ordiminish the effect of the disability by going to its source. This is thecase of therapeutic equipment intended to help individuals to restore the original mobility. On the other hand, adaptive technology is used if thereis no way to fix the faulty biological system. It can be further subdividedin alternative, augmentative and substitute technology. Alternative aids route signals that would normally be used by a certain organ through another. For example, a cane indicates through the tact the presence of objects thatwould otherwise be perceived by sight. Augmentative equipment preserves theoriginal functionality of the original system, while increasing its range. This is the case of reading glasses. Finally, substitute technology bypassesthe original system altogether, replacing it by a new, artificial one. Attempts at this, like the cochlear implant, are new and scarce.
The implementation of technology to aid the disabled involves a certain costwhich, without pressure, would not often be accepted, possibly resulting indiscrimination to handicapped individuals. American legislation has come along way in creating the necessary momentum to bring equal opportunities tothe disabled. Major milestones are the Rehabilitation Act of 1986, theTechnology- related Assistance for Individuals with Disabilities Act of 1988, and, above all, the American with Disabilities Act ( ADA) of 1990. This last piece of legislation attempts to prevent work discrimination and providesguidelines for the implementation of accessible public facilities andtelecommunication systems.
OBJECTIVE
The main purpose of this study is to achieve contact with members of theAmerican community. Therefore, true scientific rigor has been waived. This study does not intend to constitute a reference document for researchers inthe field, and can be considered an informal information- gathering task.
METHODOLOGY
A simple instrument was developed that included basic demographic informationand questions about the ADA and the use of technology that should derive fromit. Five members of the community of Austin, Texas, where asked to completethis questionnaire through direct interviews. The instrument was also postedto several disability- related and general- interest newsgroups on the Usenet. Four complete answers were received through this medium.
RESULTS
Demographic Information
Average Age: 39.7 yearsSex: Male ( 5), Female ( 4) Place of Birth: US ( 7), England ( 1), Philippines ( 1) Race: White ( 8), Oriental ( 1) Education Level: Some college ( 1), BS/ BA ( 5), Master's ( 3) Main Activity: Student ( 3), Work ( 5) Field of Study/ Work: Accounting ( 1), Management ( 1), Economics ( 1), Computer Systems ( 1), Education ( 4), Notspecified ( 1) Economic Level: Lower ( 2), Lower- Middle ( 1), Middle ( 3), Upper- Middle ( 3) Disabilities: Paraplegia ( 1), Scringomy ( 1), MetastaticCancer ( 1), None ( 6)
Knowledge and Attitudes Towards ADA
Heard about ADA: Yes ( 77%), No ( 11%), Barely ( 11%) Facilities required tocomply with the ADA:
Ramps 6 Bathrooms 4 Computer 2 Automatic Doors 1 Wide Aisles 1 Elevators 2 Transport 1 Large Print 1 Braille signs 1 Braille Reader 1
Equipment seen as surpassing the requirements set by ADA: Screen reader, Sign- language interpreter, students/ employees, talking computers, chairliftnear area with steps, adaptive computer/ keypad
Opinions about the ADA: two of the subjects did not provide an opinion on thesubject. Those who did approved unanimously of it. Some concern was raisedthat the ADA might be underimplemented legislation. One of the subjectexpressed that it was costly to implement, but that it was necessary to giveequal opportunity. Another subject feels that the ADA indicates increasingsensitivity towards disabled individuals.
Assistive technology in workplace
Disabled in study/ workplace: Yes ( 6), No ( 1), Sometimes ( 1), Don't Know ( 1). Two of the subject indicated that in their workplaces all kinds ofdisabilities could be found. Blindness and mobility impairments where foundin two cases, while deafness, autism, cerebral palsy and mental retardation were only found once. Facilities available to the disabled instudy/ workplace:
Braille signs 2
Ramps 7
Automatic doors 6
Adaptable furniture 5
Accessible software 4 CCTV 2
Adaptable keyboards 2
Scanners with OCR and speech synthesis 3
TDD 3
Augmentative Communication Devices 1
Speech Recognition 1
Wheelchairs 1
Swimming Facilities 1
Elevators 1
Benefit of assistive technology: Mildly beneficial ( 1), Radically beneficial( 8). It is perceived that this kind of technology allows individuals torealize their full potential and give a contribution to society, by makingaccess to existing facilities easier. An opinion was expressed that disabledworkers tend to be better workers than able- bodied counterparts, because of their appreciation for the opportunities they are given. A similar opinion, backed by a study, can be found in ( Burnett, 1985).
Disability that would, in present situation, be considered more damaging: Blindness ( 7), Deafness ( 3), Speech ( 3).
Value of on- line services to the handicapped: Valuable ( 8), Don't know ( 1). A salient argument indicates that this kind of technology is actually useful to everyone, regardless of disability. One person indicated that theseservices eliminate the bias and prejudice that usually surround handicappedindividuals. Two people considered this services to be valuable forproducing new ideas and opportunities.
Opinion on the fact that private employers and taxpayers have to pay foradaptive facilities: the general perception is that, in the long run, disabled individuals are turned into a valuable asset to society, whichovercompensates the cost of implementation. This kind of technology isperceived as necessary to give effective equality, as part of the buildingstones of American society.
Ease of finding information on assistive technology: Easy ( 4), Hard ( 3), Don't know ( 2) Price of assistive technology: Reasonably priced ( 4), Expensive ( 3), Don't know ( 2)
CONCLUSIONS
American public seems to be aware of the needs of the disabled and therelated legislation, and seems to have a good idea of the type ofaccommodations that are required under the law to allow access to disabledindividuals. General agreement on the use of this technology and the need topay its cost was surprising, and in contrast to discussions in which theauthor had engaged in 1991. It is interesting to note that none of thesubjects considers that mobility impairments would be the most damagingdisability for their everyday activities. American public still considersthat acquisition of adaptive technology is not inexpensive. Finally, it isimportant to point out that disabled individuals seem to have achieved agreater presence in both schools and workplaces, since most of the participants had disabled colleagues.
REFERENCES
Burnett, N. ( 1985, January). DP and the disabled. Datamation, 31, 22.
Rivera, J. ( 1993). Unidad de Acceso a la Computadora para Personas conLimitaciones. Guatemala: UFM Technology and the Disabled
POSTNOTE
Thanks to all those who took the time to answer my questions via e- mail. Unfortunately, some of the answers arrived too late to processed for thepresentation and to be included in this report. I believe that those answersare not inconsistent with the result of the others, although I am perfectlyaware that such a sample is too small to be of statistical significance. ------ @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 20 October 13, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with colleagues, supervisorsand subordinates. The views and opinion expressed herein are solely those ofthe editor, except where noted, and do not represent the views of the Officeof Chief Counsel or the Department of Environmental Resources. Contributions, questions or comments, including requests for accommodations needed toreceive or apprehend this publication, should be addressed to Patrick Bair( Ed.).
- OCTOBER IS NATIONAL DISABILITY EMPLOYMENT AWARENESS MONTH!
- OBESITY GAINING CREDIBILITY - The credibility of the premise that obesityis a disability was given a boost recently by two state court decisions. Trial courts in Florida and California awarded $ 163,000 and over $ 1 million, respectively, to claimants who claimed disability discrimination on the basis of their weight. In California's first major verdict in favor of an obeseperson, an Oakland jury made the award upon finding that an employer'stermination of an obese employee because of his weight violated the stateFair Employment and Housing Act. The case applied the standard newlyannounced by the California Supreme Court in Cassista v. Community Foods, Inc., which requires that a person claiming discrimination based upon her orhis weight " must adduce evidence of a physiological, systemic basis for thecondition." The employee, who weighs over 400 pounds, presented experttestimony that obesity is 80 percent physiological and genetic and 20 percentenvironmental. ( Rossi v. Northern Automotive Corp., CA SuperCt, No. 702424, 9/ 1/ 95)
In Florida, a 454- pound equipment operator with diabetes was reinstatedand granted $ 163,000 in back pay plus attorneys' fees by a jury whichdismissed the employer's defense that the employee was terminated because hewas physically incapable of performing his job duties and because his sizecreated a safety hazard. The jury found that the employer had failed toreasonably accommodate the employee. ( Nickson v. Escambia County, FL CirCt, No. 93- 0101 Division B, 8/ 8/ 95)
- CONDUCT- BASED TERMINATIONS UPHELD - In three recent decisions, two federalappellate courts and a state appellate court have affirmed employers' rightsto fire employees for egregious or criminal conduct regardless whether theemployee has a disability related to substance abuse. A university was justified in firing a football coach who was arrested for drunk driving. Theuniversity argued that the coach had permanently impaired his ability toperform the essential functions of his job, namely to act as a positive rolemodel, portray the university in a positive light and counsel players on drugand alcohol abuse. The court dismissed the coach's claim that he wasterminated because of his alcoholism, stating that his conduct would havebeen equally intolerable if engaged in by a sober or non- alcoholic employee. ( Maddox v. Univ. of Tennessee, 4 AD Cases 1253, CA 6, 8/ 21/ 95)
The federal Ninth Circuit Court of Appeals found that an employer didnot violate the protected rights of eight employees it fired for buying orusing drugs at work, despite the employees' claim that they were protected asrehabilitated drug users. The court observed that the Act's exclusion fromprotection of employees who are " currently engaging" in the use of illegaldrugs was not meant to exclude only those found using drugs on or within a matter of days or weeks of the adverse employment action, but applies toillegal drug use recent enough to indicate that the employee is activelyengaged in such conduct. ( Collings v. Longview Fibre Co., 4 AD Cases 1278, CA9, 8/ 14/ 95)
In Massachusetts, a state court found an airline justified in firing analcoholic flight attendant who, using unused " drink chits" returned to herby customers, boarded a flight, became intoxicated and loudly complainedabout her employer. The court said that an employee who engages in conductsignificantly inimical to the employer's interests and in violation of theemployer's rules is not an " otherwise qualified" person. ( Garrity v. United Airlines, 4 AD Cases 1215, Mass SupJudCt, 8/ 2/ 95)
- ACCESSIBLE PUBLIC TRANSPORTATION IS LACKING - A survey by the American Public Transportation Association found that municipalities and other publicentities do not have the money to continue to provide necessary accessiblepublic transportation. According to the survey, " current and projectedshortfalls are expected in the funding levels needed to provide ADA mandatedservices to people with disabilities." While a majority of the survey'srespondents reported operating some paratransit services in their area, they also reported a widening gap between demand and the financial ability to meetthat demand. The ADA deadline for public transport compliance was July 26, 1995.
- MORE SURVEY RESULTS - Of 1,192 workers employed at the onset ofa disability who were surveyed by the National Bureau of Economic Research, 73percent continued to work, a majority of them for the same employer. Morethan one- third of those remaining with the same employer reported receivingsome sort of specific accommodation, most commonly an adjustment in workschedule or duties and assistance with the job.
- CUSTOMER HARASSMENT - A federal District Court in Illinois has decided aninteresting claim the effect of which may eventually be seen in disabilitieslaw. The Court held that a sexual harasser's status as a non- employee does not necessarily shield an employer from liability under Title VII. The caseinvolved a retail clerk who was being sexually harassed by a customer, incidents of which were witnessed by several co- workers and a manager, who did nothing to stop the harassment. Logically, this interpretation couldalso be applied to disability- based harassment. ( Menchaca v. Rose Records, 67 FEP 1334, N. D. Ill. 1995)
- PERVASIVE ATMOSPHERE OF HARASSMENT - Back home in our own 3d Circuit, thefederal appeals court, in reversing a district court decision, found that apervasive atmosphere of sexual harassment preceding a disciplinary action, actively encouraged and participated in by the decision- maker, could be " direct evidence" of discrimination. The finding means that the plaintiffwill be able to proceed to prove her claim in the district court under alighter burden of proof, that normally used for " mixed motive" cases, insteadof the more rigorous " pretext" test under McDonnel- Douglas. ( Wilson v. Susquehanna Police Dept., 67 FEP 1345, 3dCir. 1995)
- EXPERIMENTAL TREATMENT PROGRAM - A federal appeals court in Missouriordered an employer to enroll a cancer patient in an experimental treatmentprogram, apparently finding that the employer had violated the ADA byadopting a health plan which excluded certain expensive cancer treatments. The decision by the 8th Circuit Court is expected to prompt other cancerpatients to use the Act to achieve coverage insurance coverage.
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" News Reviews to Peruse"
Number 21 November 17, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinion expressed herein are solely those ofthe editor, except where noted, and do not represent the views of the Officeof Chief Counsel or the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodationsneeded to receive or apprehend this publication, should be addressed toPatrick Bair ( Ed.).
- DRUNK DRIVING NOT A DISABILITY - The U. S. Court of Appeals for the SeventhCircuit has decided a case involving a maintenance worker with alcoholism. The worker was demoted to a custodial position after losing his driver'slicense upon a fourth conviction for driving under the influence. Drivingwas a requirement of the maintenance position. The worker complained that his alcoholism caused him to lose his license and the loss of his licensecaused him to lose his job. In its opinion, the court stated that whilealcoholism is a disability, the condition " contributed to but did not compelthe action that resulted in a demotion." In other words, the worker did notlose his job because of his alcoholism, but because of his decision to drivedrunk. ( Despears v. Milwaukee County, 4 AD Cases 1313, CA7, 8/ 21/ 95)
- GOVERNOR'S COMMITTEE CONFERENCE - The 42d Annual Conference of thePennsylvania Governor's Committee on Employment of Peoplewith Disabilitieswas held at the Harrisburg Hilton on October 26, 1995. The theme of theconference was " Integrating Diversity: It's Everybody's Business." Governor Ridge, prevented from attending due to a last- minute obligation, reaffirmed his commitment to the aims of the ADA and, in remarks delivered for him byLabor and Industry Secretary Johnny J. Butler, announced a major Commonwealthinitiative aimed to increase employment of persons with disabilities. Theconference included addresses from representatives of the EEOC, DisabilitiesLaw Project, Paralyzed Veterans of America ( PVA) and L& I's Office ofVocational Rehabilitation ( OVR). Giving the Keynote Addresswas John Kemp, Executive Director of the National United Cerebral Palsy Associations. In anoften humorous but powerful address, Kemp, who has artificial arms and legsas a result of multiple birth defects, said that people with disabilities areno longer going to apologize for their disabilities. Stating that the world" ecology" must change, he said that the focus is no longer on the" malfunction of the individual," but on the " lack of fit" between theindividual and society. Kemp noted that the rate of people with disabilities living in poverty is 2 ½ times that of non- disabled people, and that working men with disabilities average $ 2600/ year and working women with disabilities$ 3600/ year less in salary and wages than non- disabled workers. " If you are poor, you have a greater chance of being disabled; if you are disabled, youhave a greater chance of being poor." He said the disabilities movement isabout " empowering people to take control of their lives." Kemp announced theformation of the American Association of Persons with Disabilities, a groupcreated on July 25, 1995 to assemble and represent the views of persons withdisabilities. The association's ten- point agenda calls for:
1. Equal opportunity for persons with disabilities
2. Employment
3. Disincentives for resorting to the use of Social
Security laws to deal with persons with disabilities
4. Prevention of disabling accidents and diseases
5. Transportation accessibility
6. Housing accessibility
7. Accessible health care
8. Education of children with disabilities
9. Greater emphasis on independent living
10. Increases in the availability of assistive technology
" The struggle is long, hard and taking too long," he concluded. Exhortingthe riveted crowd to get behind the committee's aim of diversity, he observed" We are a part of this world, we are part of the rich diversity that Americaenjoys."
- FINAL EEOC REGULATIONS ON PRE- EMPLOYMENT QUESTIONS - The EEOC has issuedfinal regulations on pre- employment disability- related questions and medical exams. With little exception, the final guidelines re- establish that questions regarding an applicant's disability, or potential disability, areforbidden in interviews. The most significant change from the Commission's prior absolute prohibition is that an employer may now ask an applicant withan " obvious disability that the employer reasonably believes will need to beaccommodated, or any applicant with a disability who volunteers that anaccommodation is needed" what, if any accommodation will be needed. In thesesituations other disability- related questions are still prohibited and, if the applicant responds that no accommodation is needed, the employer may notpursue the issue. Questions about an applicant's ability to perform job- related functions with or without an accommodation are, of course, stillpermissible.
- REASSIGNMENT AS REASONABLE ACCOMMODATION - In Emrick v. Libbey Owens Ford Co., the federal district court for the Eastern District of Texas held that an employer must offer transfer to another facility as a reasonableaccommodation only where the employer regularly transfers employees betweenfacilities. That interpretation of an employer's obligation to accommodatehas recently been reinforced in the U. S. District Court for the WesternDistrict of North Carolina. In its decision, the court ruled that effortssuch as " bumping," promoting unqualified employees to vacant positions ortransferring employees even though that is not company policy are unreasonable accommodations not required by the ADA. In granting summaryjudgment to the employer, the court concluded that the employee was not" otherwise qualified," could not be accommodated in other positions due tohis lack of qualifications and that reassignment to another facility was not required because the company did not routinely transfer hourly employeesfrom one facility to another. Riley v. Weyerhaeuser Paper Co., 1995 U. S. Dist., LEXIS 13119 ( W. D. N. C. 1995)
- ELECTION OF REMEDY - The U. S. District Court for the Eastern District ofPennsylvania has recently ruled that a discharged employee could not maintaina claim under the ADA where he had earlier filed an application fordisability benefits on which he had stated he was " unable to work" and" totally and permanently disabled." ( The ADA protects only qualifiedindividuals with disabilities.) The benefits had been granted. Recognizingthe " apparent unfairness" of forcing individuals to choose between seekingdisability benefits and suing under the ADA, the court neverthelessdetermined that Congress did not intend to provide disability benefits topersons capable of working. McNemary v. Disney Stores, 1995 U. S. Dist., LEXIS9454 ( E. D. Pa. 1995)
- ADA COMPLIANCE TRAINING - The Pennsylvania Small Business DevelopmentCenter of the University of Pennsylvania was among sixteen organizationsnationally which shared $ 1.6 million in small business education grants fromthe U. S. Department of Justice. The grants are to help the organizations teach local businesses and governments about the ADA. You'll find three attachments to this month's newsletter culled from theInternet. The first is an article about the " Ability OnLine Support Network;" the second about the National Institute on Life Planning for Persons withDisabilities; and the third for you fellow net surfers out there, a listingof disability- related web sites you might find interesting or useful. Happysurfing! = 8->
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Ability OnLine Accessible Via The Internet ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
( Toronto, ON - Oct. 2 1995) - The Ability OnLine Support Network is nowaccessible to anyone on the Internet, either by direct or dial up connection. Using " telnet" technology, callers from across the country and around theworld can access Ability OnLine for the cost of a local call to an InternetService Provider ( ISP).
Ability OnLine is a free electronic mail system ( BBS) providing a platformfor children and young adults with disabilities or chronic illness, and theirfamilies, to easily communicate by computer and modem with their peers, disabled or not, as well as adult mentors, in a barrier- free and friendly environment.
" We are very excited about this new development. It provides a direct andinexpensive link to our program", says Ability OnLine President and co- founder, Dr. Arlette Lefebvre. " The cost of long- distance calls has alwaysbeen a financial burden on families living outside the local Toronto dialingarea."
In conjunction with Hookup Communications, in Oakville, Ontario, and withtechnical support from Bell Canada, Ability OnLine has taken one more steptowards providing " cost free" access to this unique program. Once a callerhas connected to their local Internet service, they only need to telnet to" bbs. ablelink. org", and will be connected to Ability OnLine as if they haddialed in directly by modem, but without the long- distance charges.
" The technology for providing this accessibility has been available toInternet users for years", explained Brian Hillis, Director and co- founder of Ability OnLine, " but it has only been recently that all the pieces were inplace to make it work with the platform we use. The resources of AbilityOnLine are now available to thousands of families across the country."
With over 4500 active members, Ability OnLine handles over 30,000 calls amonth ( over 38,000 in August/ 95) on 15 modem lines. This new capability willadd 16 telnet ports, and should easily double the number of callers veryquickly.
Ability OnLine is a registered Canadian Charitable Organization, and isfunded primarily by private donations from the Max Bell Foundation, Bell Canada, The Gerald Schwartz & Heather Reisman Foundation, and The Hospital for Sick Children Foundation.
Dial up access to Ability OnLine is free of charge to anyone with a computerand modem by calling ( 416) 650- 5411, seven days a week, 24 hours a day. Donations can be sent to the Ability OnLine Support Network, 919 AlnessStreet, North York, ON, M3J 2J1, Canada.
For Information contact:
Anna Pileggi ( 416) 650- 6207 Voice; ( 416) 650- 5073 Fax;
( 416) 650- 5411 Modem
Ability OnLine Support Network 919 Alness Street
North York, ON M3J 2J1 Canada
Internet: info@ ablelink. org
Telnet: bbs. ablelink. org
Ability OnLine & Bell - Working together in the community
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Subject: Members Only From: rfee@ sonic. net ( Richard Fee)
*************************************************** Here's a GreatOpportunity to Support a Great Program***************************************************
The Board of Directors is pleased to announce the first membership drive forthe National Institute on Life Planning for Persons with Disabilities. Hereis a great opportunity as a person with a disability, family or professionalto support the new Institute to help it achieve its important mission - help persons with disabilities and their families plan for the future.
If you were to ask any family who had a child, sibling, spouse or parent witha disability what was their greatest concern, you would find that the answeris a very basic and human one- how can we guarantee that our loved one willhave a comfortable and meaningful life after we are gone. A person with adisability also is very concerned because he or she knows that the familysupport system often means the difference between poverty and quality oflife.
During the spring of 1995, the National Institute on Life Planning forPersons with Disabilities was established as a 501( c)( 3) nonprofitorganization in affiliation with the California Institute on Human Services at Sonoma State University to serve as a national resource for persons withdisabilities, families and professionals on how to make sure that the personwith the disability will enjoy a comfortable lifestyle after the family isgone. This is not a paternalistic organization looking after persons withdisabilities, but rather one that works WITH persons with disabilities tohelp them plan.
MISSION
There is a three fold mission: 1. To serve as a national clearinghouse forpersons with disabilities, families and professionals on all aspects of LifePlanning including government benefits, advocacy, transition, aging, etc. 2. To provide formal training and certification to all professionals who servepersons with disabilities including Advocates, Attorneys, Clergy, SocialWorkers, Trust Officers, Financial planners, Transition specialists inschools, etc. 3. To serve as a national center and focus for research on allissues relating to life planning.
ADVISORY BOARD
At the present time, NILP is the only nonprofit or university center which isdevoted EXCLUSIVELY to the topic of life planning. It is indeed a pioneer inthis way. The leading experts in life planning issues and leaders of manycharities have joined the National Advisory Board to help promote thevaluable work of NILP.
John Markham, Chairperson, Anthony Appoloni, California Institute on HumanServices and National Continuity Program, Robert Carlin, Spina BifidaAssociation of America, Doreen Croser, American Association on Mental Retardation, Robert Daugherty, KYPLAN, Tom Emmons, DisAbility Works, DouglasKaplan, National Guardianship Association, Frank Murphy, National DownSyndrome Association, Carol Obloy, National Alliance for the Mentally Ill, National PLAN, Leslie Parks, Life Services for the Handicapped, Mark Russell, Attorney, Daniel Scarborough, Disability Benefits Association, JamesShepherd, Kaleidoscope TV, James Stone, Third Age, Joseph Valenzano, Exceptional Parent Magazine, Theresa Varnet, Attorney, James Weaver, Weaver- Morrisey, Michele Whitmore, Structure Settlements, Inc. and Others.
The Advisory Board has members with disabilities, parents and siblings ofpersons with disabilities.
We want to represent all interests in this very important field and
WELCOME new Advisory Board Members. Please e- mail me your
recommendations.
MEMBERSHIP
There are many types of membership.
Sustaining Member Benefits Individual $ 35 Newsletter Organization $ 100 Newsletter Associate Member $ 150 Newsletter ( Anyoneinvolved in Life Planning) Professional Clearinghouse DiscountedTraining Courses
Member( Professional) - $ 300 Newsletter( Professional, 1 yr. exp., Resume Professional Clearinghouse 2 letters of reference, Discounted Training Courses Approvalby Board) Phone Consultation on Cases-
reduced rates
Right to use Member on stationery
Fellow - $ 500 Newsletter Professional, 3 yr. exp., Resume ProfessionalClearinghouse 2 letters of reference, formal 2 free training courses/ year( after training courses approval by ChLAP completion Board) 2 hours permonth free professional consultation per month( no carry- over) Right to useFellow on stationery
ChLAP Association Same benefits and dues as Fellow ( one set of dues only)
IF YOU ARE INTERESTED IN MEMBERSHIP IN THE NATIONAL INSTITUTE ON LIFEPLANNING, PLEASE LEAVE AN E- MAIL MESSAGE AND WE WILL SEND YOU THE FORMALAPPLICATION.
Richard W. Fee, Executive Director National Institute on Life Planning forPersons with Disabilities CIHS- Sonoma State University, 1801 E. Cotati Ave, Rohnert Park, CA 94928- 6922 707- 664- 4235 Fax 707- 762- 2657 E- mail: rfee@ sonic. net
Home Page: http// sonic. net/ nilp
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Disability- related web sites:
http:// www. access. digex. net/~ edlawinc http:// www. rit. edu/~ easi ( EASI Law & related documents) http:// www. annenberg. nwu. edu ( Annenberg WashingtonProject) http:// disability. com ( Evan Kemp Assoc.)
http:// library. uwaterloo. ca/ discipline/ Disability_ Issues/ index. html Univ. of Waterloo Library Disability Issues Web Page) gopher:// val- dor. cc. buffalo. edu (" Cornucopia of Disability Information)
http:// ssvi. union. utah. edu/ http:// www. albany. net/~ dsw (" Disability Solutions") @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 22 December 15, 1995
Items regarding the Americans with Disabilities Act which may be ofinterest to you. Please share this information with colleagues, supervisorsand subordinates. The views and opinion expressed herein are solely those ofthe editor, except where noted, and do not represent the views of the Officeof Chief Counsel or the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodationsneeded to receive or apprehend this publication, should be addressed toPatrick Bair ( Ed.).
- TEMPORARY IMPAIRMENTS NOT COVERED - The Third Circuit Court of Appeals( the circuit including Pennsylvania) has recently reinforced that an employeewith a disabling but transitory physical or mental condition is not protectedby the ADA. The case involved a nurse who requested an accommodation of twomonths of unpaid leave following surgery; her recovery period was of limitedduration. The Court stated " to apply the Rehabilitation Act and ADA tocircumstances such as those presented here would be a massive expansion ofthe legislation and far beyond what Congress intended." ( McDonald v. Pennsylvania Department of Public Welfare, CA3, No. 95- 3005, 8/ 4/ 95)
- JAN ON THE NET - The Job Accommodation Network is now on the Internet! JAN's home page, found at http:// janweb. icdi. wvu. edu, contains many usefullinks to disability- related sources. The free resources of JAN - employment, reasonable accommodation, accessibility, etc. - have long been available by toll- free phone at 1- 800- 526- 7234 or 1- 800- 232- 9675. JAN, a free consulting service of the President's Committee on Employment of People withDisabilities, is headquartered at West Virginia University, Morgantown, WV.
Just a short " News" this month. Hope you'll use the " extra time" tocheck out the really interesting articles attached. Or just consider it anearly holiday present from yours truly! See you next Tuesday!! Happy holidaysand New Years!
ATTACHMENTS
1. " Pennsylvania Internet Support Group for Parents of Kids with Special Needs" - Family Service of Montgomery County
2. " What Kind of Place is Cyberspace for People with Disabilities?" - Marie Deatherage
3. " Telephonic Resource Listing from AADP on Disability Issues" - Philip Kirschner
4. " Reducing Barriers" - EASI
5. " DOIT Project" - Sheryl Burgstahler
6. " Title II Proposed Rulemaking"