ADA news news reviews to peruse.

              ADA NEWS
1996
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" News Reviews to Peruse"
Number 23 January 16, 1995
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinion expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick Bair ( Ed.).
- SEPTA SETTLEMENT - The Southeastern Pennsylvania Transportation Authority ( SEPTA) recently settled a lawsuit brought against it by four advocacy groups and several individuals, which alleged that SEPTA was violating the ADA by failing to provide next- day scheduling for paratransit. Without admitting liability, SEPTA agreed to install a $ 1.9 million computer scheduling system, implement a system of next- day scheduling, give priority on lift- equipped vans to persons using wheelchairs and other relief.
- PREGNANCY- RELATED DISABILITY - According to EEOC regulations, pregnancy alone is not a disability under the ADA; however, the EEOC adds that complications associated with pregnancy may be impairments. While no clear indication has yet come from the courts, your editor doubts whether a case can be made that an impairment which is solely connected with a pregnancy could survive the test for disability. An impairment which is caused by pregnancy and which continues indefinitely after the pregnancy could meet the definition.
Two recent cases illustrate the thinking on this question, at least in these two instances. In Patterson v. Xerox Corp., the employee requested accommodation for her severe back pain experienced during her pregnancy. The employer refused to grant her request for stretch breaks. The employee brought an ADA claim after her pregnancy alleging disability- related harassment and failure to accommodate. The employer moved to dismiss her claim, arguing that the employee did not have a covered disability and that her condition was a transitory impairment. The U. S. District Court for the Northern District of Illinois denied the employer's request, stating that the employee had not claimed she was disabled by her pregnancy, but by her severe back pain which substantially impaired her ability to sit. The court held that the employee had sufficiently alleged a disability to withstand the dismissal motion.
In Erickson v. Board of Governors, the same court found reproduction is a major life activity under the ADA and that infertility is a condition that substantially impairs that major life activity. The court denied an employer's motion to dismiss the ADA claim of a terminated employee who had taken sick leave to treat her infertility.
- PAST OR CURRENT DRUG USE? - The ADA excludes current drug users from coverage under the Act, but provides that past drug use can be a disability. The question arises, how long must one be drug free to qualify as a former drug addict? This question was recently addressed by the U. S. District Court for the Eastern District of Louisiana, which reviewed a case involving an employee terminated for drug use who claimed that he was not a current drug user, that he had last used drugs illegally seven weeks prior to his firing and that he was enrolled in a treatment program. Taking note that the ADA provides coverage for chemically dependent persons who are enrolled in a treatment program, the court nevertheless held that a person must have been free of illegal drugs and in recovery long enough to have become " stable." The court found seven weeks insufficient to be considered a prior drug addict.
- REQUEST FOR ACCOMMODATION REQUIRED - Some of you may remember the case Derbis v. U. S. Shoe Corp., reported in an earlier edition. In that case, an employer's decision to deny accommodation to an employee who had never revealed her disability to the employer was found not in violation of the ADA. That decision has now been confirmed by the 4th Circuit Court of Appeals.
- BRUCE, ARE YOU LISTENING? - The Washington, D. C. restaurant Planet Hollywood was recently required to install ramps to make the restaurant accessible, resolving a complaint brought by two wheelchair- using patrons. Previously, patrons using wheelchairs had to enter through a back door, go through the kitchen and other employee- only areas and were unable to access several levels within the club. A spokesperson for the restaurant said, " we're pleased to comply and we hope other restaurants will follow our lead." Uh- huh.
- NAME CHANGE - The Association of ADA Coordinators ( AADAC), of which this Department is an organizational member, has announced that it is changing its name to the National Association of ADA Coordinators, or NAADAC. The name change was undertaken " in order to more accurately reflect" the Association's membership.
- NATIONAL INSTITUTE ON LIFE PLANNING FOR PERSONS WITH DISABILITIES ( NILP) - The NILP, an organization which provides assistance in various areas associated with disabilities, has announced its new Internet presence. The site can be used to access numerous other disability and life planning sites. Please see the attached announcement from NILP for details.
- EEOC GUIDANCE DOCUMENT - INTERVIEWING - The EEOC has recently published " ADA Enforcement Guidance: Preemployment Disability- Related Questions and Medical Examinations," a pamphlet for employers. The twenty- six page, indexed pamphlet sets out in question and answer format some of the most troublesome situations which persist in the interview process and suggests employer responses. I will provide copies of this publication on request unless requests become overwhelming. ------
Subject: NILP On- Line News- December- 1995 From: rfee@ sonic. net ( Richard W. Fee- San Francisco, USA)
NILP OnLine News ****************************************************************** National Institute on Life Planning for Persons with Disabilities, Inc., Sonoma State University, 1801 E. Cotati Ave., Rohnert Park, CA 94928- 6922 ****************************************************************** December, 1995 Volume I, No. 2 ******************************************************************
NILP OnLine News The National Institute on Life Planning for Persons with Disabilities( NILP) is pleased to announce the publication of the new NILP OnLine News bulletin which will be distributed via fax or e- mail each month. The main purpose of this informal NILP OnLine News is to bring NILP members the latest information concerning all aspects of life planning for persons with disabilities. We welcome your comments. We would also be very interested in publishing any news briefs on important life planning concerns. NILP will begin publishing a standard quarterly newsletter for members in early 1996. The quarterly newsletter will meet your traditional expectations and include regular columns on life planning, government benefits, legal issues, advocacy/ guardianship, aging and financial planning.
Richard W. Fee, Editor
Published monthly by the National Institute on Life Planning for Persons with Disabilities, Inc. 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
****************************************************************** Internet Page- Big News!! We are truly wired to the world!! The formal NILP Internet Page is up and running. It looks great and it provides a valuable service to families and professionals. Many organizations simply use their net pages to announce their services. Since one of our major goals is to serve as a national clearinghouse on all aspects of life planning, we decided to make the NILP page completely interactive. Anyone with access to the Web can contact NILP. Once on our page, they can ask personal questions on any life planning topic which will be answered by an expert. They simply click onto a topic such as " Government and Community Benefits," read the brief summary about the different types of benefits and then click on the NILP button. Up pops an e- mail screen where they can send a personal question. They hit the " send" button and the question goes directly to an expert, in this case, Daniel Scarborough of Disability Benefits Association, at the University of Texas. Daniel retrieves the message in his e- mail box, provides a brilliant answer, hits send and the person gets the needed information within 48- 72 hours. Slick! We would like to thank the many experts who have signed up to answer questions: Legal and Structured Settlements- Michele Whitmore, Settlement Strategies, Inc., Parker, CO. Aging - James Stone, Third Age, Lexington, KY. Financial - Robert Daugherty, KYPLAN, Georgetown, KY Legal - Various attorneys. The questions come to California and we send them onto a lawyer in the appropriate state. Government and Community Benefits - Daniel Scarborough, Disability Benefits Association, University of Texas, Austin, TX General Life Planning and Transition - Richard W. Fee, NILP. If you know of any other topics we should offer or professionals who would be willing to answer questions, please let us know. We do put in a little plug about their qualifications and services, so it is a little like a free ad for them. The Net Page offers other information which we will discuss below. The Net site is: http:// sonic. net/ nilp
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Net Professional Database
If a family needs a professional to assist them to plan for the future, they can click onto the NILP professional database. They can then request the name and other details of a qualified ChLAP planner, attorney, advocate, trust officer, etc. in their geographical area. Without a doubt, this is the hottest section thus far. We answer 5- 10 requests a day. Where do we get the names of qualified professionals? Many different sources... We have ranked professionals in the following order for recommendation to families: 1. ChLAP planner- someone who has completed the formal ChLAP program- we know he or she is properly trained. 2. EPPD planners - we know this person is also trained because we trained them prior to setting up NILP. 3. Other professionals - referred to us by reputable charities and government agencies. We make it very clear to families that we do not endorse any professional. We are a good starting point. If you know of any professional we should include in our special database, please let us know. Fax or e- mail us their name, address, telephone, fax and e- mail address. Please provide a brief summary of professional experience.
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Burial Insurance- Yes, Real Life Insurance for Persons with Disabilities It is almost impossible to find a good burial policy for a person with a disability. Few life insurance companies would to take on this risk. We are working very hard to offer families a " membership" benefit of low cost burial insurance for their loved one with a disability. For the last six months, we have tried to locate companies willing to offer this type of policy. We now have a few that will provide it with no questions or minimum questions. Families pay a $ 35 NILP membership fee and we refer them directly to the broker who handles the policies. NILP is not an insurance company by any stretch of the imagination, but we do want to offer our members a true benefit. Can they order over the Internet? You bet! Just click onto the NILP page and hit the Burial Insurance button. If you know of any life insurance companies we should include in our listing, please let us know.
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ChLAP Training Program- December School The first professional training program for professionals who want to work in this area continues to forge ahead. We held our second 3 day pre- examination school at the Courtyard by Marriott in Washington, DC from December 5th to 7th. The following candidates completed their last examination and were awarded the ChLAP: Gordon H. Biescar, Houston, TX Benjamin M. Braun, Columbus, OH Randee K. Cook, Greeley, CO Benjamin Franklin, Dallas, TX Robert B. Hurley, Charleston, WV Linda Kahn, Somerset, NJ Angeline J. O'Malley, Lexington, KY Cynthia Thorp, Newport News, VA David E. Toothman, Marietta, GA Ann J. Travis, Miami, FL AND Sharon Toothman completed the first Module- Social Aspects with honors. We would like to thank Patricia Williams, California attorney, for assisting with this pre- examination school. Patricia is an assembly person who was in Washington for the public policy meetings. She came over to the school and gave us a 3 hour presentation on the latest congressional changes to IDEA, ADA and Section 504. She also updated us on the congressional battles with Medicare and Medicaid. Patricia and another California attorney, Stephen Dale, are the authors and instructors in the Legal Aspects Module of the ChLAP program. We have a number of candidates working towards this professional qualification. The ChLAP program consists of 3 correspondence courses on the Social, Legal and Financial Aspects of Lifetime Assistance Planning. Candidates study the course materials and take a final examination on each module. NILP offers a free 3 day pre- examination school prior to each final examination. The school is not required.
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Special Note to Families, Charities, Government Agencies, etc. When the time comes to do your special planning or recommend someone to do the planning, ask your professional about his or her qualifications. You can rest assured that those professionals who have completed the ChLAP program know their " stuff" and have subscribed to a strict code of ethics. The ChLAP logo is important. The ChLAP logo in combination with the words " Fellow" or " Member" of NILP indicate the professional also receives the latest life planning information from NILP.
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So when is the Next Training Program? The next examinations will be held on Saturday, February 10th in San Francisco. The pre- examination schools will go from Thursday, February 8th at 1pm until the Saturday exam at 3pm. This Saturday exam will help you access cheap weekend fares and enjoy an extra day or two in San Francisco and/ or Napa Valley. For more information about enrolling the ChLAP program and the next series of pre- examination schools, please call us on 707- 664- 4235 or by the modern e- mail method on rfee@ sonic. net.
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Other NILP Services - Three Major Ones 1. Seminars and Workshops - We are more than pleased to provide informative, we might even say, thrilling life planning seminars and workshops at your next local, state or national meeting. Set the date and time and we will be there. 2. In- House ChLAP Programs - We offer in- house ChLAP pre- examination schools for agencies with 6- 8 candidates. 3. Consultation Services - Our team of experts are also available to assist you with any research project. We can help your agency or company analyze their life planning service, etc. In other words, use us! We don't mind.
****************************************************************** NILP Membership Unlike many groups, our income streams come from training school fees and memberships fees. Therefore, we welcome your membership. Okay, you sold me. Can I join, please? Okay, but only if you send in this application along with a check. I/ We hereby apply for membership in the National Institute on Life Planning for Persons with Disabilities as indicated below. I have attached a check/ money order for the membership along with copies of the supporting documentation, as required. Please type
Name
Title
Organization/ Company
Address ( City, State, ZIP)
Telephone
FAX
E- MAIL
Membership Categories Type of Member Annual Dues Benefits
Sustaining Member - Individual $ 35 Newsletter Sustaining Member - Organization $ 100 Newsletter Associate Member $ 150 Newsletter Professional Clearinghouse, Discount Training Programs, Anyone involved in Life Planning for Persons with Disabilities Professional Member $ 300 Newsletter Professional Clearinghouse, Discount Training Program 900 number for professional consultation with experts, Right to use Member on professional stationery, Professional with 1 year experience in Life Planning, Resume, 2 letters of reference, Approval by Board Fellow $ 500 Newsletter As above, plus 2 hours of free consultation each month( no carry- over), 2 free training programs each year after ChLAP award. Right to use Fellow on professional stationery, Professional with 3 years experience in Life Planning, Completion of approved training program, Resume, 2 letters of reference, Approval by Board
Please send to: National Institute on Life Planning for Persons with Disabilities, CIHS- Sonoma State University, 1801 E. Cotati Ave, Rohnert Park, CA. 94928FAX 707- 762- 2657 PHONE 707- 664- 4235 E- MAIL rfee@ sonic. net ****************************************************************** @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 24 February 16, 1996
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinion expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- EMPLOYER " AMNESIA" - In a recently- decided First Circuit case, the appeals court held that an employer is not prohibited from asking for medical documentation of fitness to return to work from an ex- employee who had been automatically terminated from disability leave. The ex- employee had been on disability leave for a psychological condition which made it impossible for him to work. When he reapplied for work with the former employer, he was asked for certification and medical documentation of his fitness for duty and information about needed accommodations, most of which the ex- employee refused to provide. The ex- employee, alleging an illegal pre- offer medical inquiry, sued the employer when it refused to hire him. The district and appeals courts both agreed that the employer's actions had been appropriate, and that employers should not be forced to have " amnesia" with respect to former employees with known disabilities. ( Grenier v. Cyanamid Plastics, 1995 U. S. App. 1st Cir)
- " MITIGATING MEASURES" - A federal district court in Kansas has taken on the EEOC by refusing to follow the Commission's guidance on disability and the effect of " mitigating measures." The case involved a police officer dismissed for various infractions - one of which resulted in his unattended police car being stolen - who alleged in a lawsuit that his termination had been a result of his disability, diabetes. Diabetes is listed in the regulations of the EEOC as a disability. The Commission's guidance also provides that the existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices. For example, an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine.
The Kansas court disagreed with the EEOC position, stating that to the extent it altered the ADA's definition of disability by creating a " checklist" of approved disabilities, it is invalid. The court, noting that the officer had not shown that his condition substantially limited his ability to perform any major life activity, granted the employer's dismissal motion. This decision stands in contrast to a 1994 decision of a federal appeals court in Oklahoma - Sarsycki v. UPS, 862 F. Supp. 336 ( W. D. Okla. 1994) - in which that court accepted the EEOC's guidance that diabetes is a covered disability. ( Deckert v. City of Ulysses, U. S. D. Kan. 1995)
Compare these with the recent decision of the 7th Circuit Court of Appeals. That Court found a diabetic employee who did not monitor and control his condition, resulting in an incident for which he was fired, had no cause of action under the ADA. The Court opined that the employee was totally to blame for the incident since modern technology and proper monitoring allow most diabetics to almost eliminate the possibility of a severe reaction. The only possible accommodation was a second chance, which the Court found was not required by the Act. ( Siefken v. Village of Arlington Heights, 4 AD Cases 1441 { 7th Cir. 1995})
- PARKING ACCOMMODATION GRANTED - In an important new decision, the 2d Circuit Court of Appeals ( the circuit which includes the states of New York, Vermont and Connecticut) instructed the New York City Legal Aid Society to provide paid parking to an attorney employee with a mobility impairment. The attorney had asked for paid parking near the work site as a reasonable accommodation following her return to work from disability leave, which she took after an auto accident in which she suffered permanently disabling leg injuries. Her request was denied by Legal Aid. The 2d Circuit, which overturned a trial verdict in favor of Legal Aid, cited EEOC interpretive guidance that providing parking may be a reasonable accommodation, and stated that " employer assistance with transportation" was within the scope of the ADA as envisioned by Congress. [ We are sure to hear more on this issue.] ( Lyons v. Legal Aid Society, 68 F. 3d 1512 { 2d Cir. 1995})
- KEEPING YOU UP WITH THE NET - Please note the attachments, gleaned from the Internet. You'll find notices regarding new web sites, including one for Pennsylvania parents who have children with disabilities; a new book about computer resources; a federal announcement regarding curb ramps; and a little " humor." - AND THE CASE WENT ON FOREVER - Well, it's time for our regular update on EEOC v. AIC Security Investigations, a case we've been following since 1992. In our last installment (" ADA News," No. 16, June 20, 1995), I reported that the 7th Circuit Court of Appeals had dismissed a punitive damage award against Ruth Vrdolyak, the company president and the person who fired Executive Director Charles Wessel, who had inoperable brain cancer. ( In June I reported in error that punitive damages had been assessed in the amount of $ 250,000 each against the company and Vrdolyak; in fact, the separate awards were $ 75,000.) Finding that individual damages are not available under the Act, the appellate court returned the case to the trial court to reaccount the damage award. The district court found that the entire $ 150,000 punitive damage award should be assessed against the company. Vrdolyak is the owner and sole shareholder of AIC. ( EEOC v. AIC Security Investigations, 55 F. 3d 1276 ( 7th Cir.), on remand, 1995 U. S. Dist. N. D. Ill. 1995)
- PUBLIC SCHOOLS GUIDE - The U. S. Department of Education has published a 278- page document titled " Compliance with the Americans with Disabilities Act: A Self- Evaluation Guide for Public Elementary and Secondary Schools," in an effort to teach educators about the requirements of the ADA. The document provides guidance on establishing ADA compliance in a school, gives tips on reviewing policies and procedures, and highlights differences between and similarities to Section 504 of the Rehabilitation Act. Copies are available to school districts from their regional Disability and Business Technical Assistance Center; additional copies at $ 21 each are available to anyone from the U. S. Government Printing Office.
- " FBI TOOK THE ADA TO THE NCAA" - A Dallas newspaper is reporting that the FBI is investigating the NCAA's so- called " core" course requirements to see if they discriminate against athletes with learning disabilities in violation of the ADA. The investigation is said to stem from a complaint filed by the parents of a Chicago teen who is a champion swimmer and who was diagnosed as having learning disabilities in sixth grade. According to the NCAA, the courses the student had taken did not meet association standards, thus preventing his school- paid recruiting visit to a college.
- PRIMA FACIE CASE FOR " REGARDED AS" DISABILITY - The 9th Circuit has handed down criteria for what a plaintiff must prove in a lawsuit claiming discrimination based on a perception of disability. The case involved an employee who experienced severe lower back pain from a degenerative disk disease and who was returned to work despite fear that he could be at risk for further injury if he performed certain heavy work. He was subsequently terminated based on that risk. The Court found the employee had stated a prima facie case since, though he had no disability, the employer regarded him as having a disability. The Court went on to state an employer cannot terminate an employee because of a physical impairment which might endanger the employee's health at some future point if the employee continues his job. ( Jimeno v. Mobil Oil Corp., 9th Cir. 1995)
- COMPANY'S BEST EFFORTS - The 9th Circuit Court, in another case, found that an employer had acted reasonably when it tried to find a new job following a restructuring for an employee with epilepsy and, when a new job could not be found which did not aggravate the employee's condition, offered to return the employee to his former job. The employee rejected the return and sued. The Court found that the employer had done all it needed to and that it was not required to create a new position for the employee. ( Sharpe v. AT& T, 9th Cir. 1995)
- LIGHT DUTY NOT REQUIRED - An employer is not required to create a light duty position, permanent or temporary, in order to accommodate an employee with a disability, according to a federal district court in Georgia. The Court reviewed the matter of an employee who returned to light- duty work following a back injury, was later placed on unpaid leave, then returned again to a less demanding position. Not satisfied, the employee sued, claiming the employer had failed to reasonably accommodate him. ( Mott v. Synthetic Industries, 4 AD Cases 1393, DC NGa. 1995)
ATTACHMENTS
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Subject: New Medical Breakthroughs web site From: webdoctor@ ivanhoe. com
A 72- year- old California man is alive only because of a heart transplant he almost didn't get. Doctors can now repair diseased hearts for transplant and give them to senior citizens. This is one of many such ground breaking news stories to be found at a new Medical Breakthroughs web site at http:// www. ivanhoe. com.
Since health information affects all of our lives, were cross- posting this message so this vital medical news reaches the people who need it most.
The free Medical Breakthroughs site has 3 new reports every Monday, as well as a keyword search of archives, interviews with experts, a First- To- Know e- mail Bulletin, and Quicktime video clips of the news reports. The stories are reported by an independent news organization that's been producing medical news for 15 years.
We invite you to visit, and be sure to tell us what medical topics you'd like to see, or if someone you know was helped by information you found on our site.
WebDoctor Ivanhoe Broadcast News, Inc. webdoctor@ ivanhoe. com
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Subject: Pennsylvania
From: famserv@ omni. voicenet. com ( Larry Fiebert) Organization: Family Service of Montgomery County
If you are a Pennsylvania parent of a child with developmental disabilities, hearing, vision, motor, or cognitive disabilities, mental retardation, or other chronic health conditions and would like to participate in an Internet support group ( via e- mail) we would like to hear from you.
Family services, the non- profit agency that I work for obtained a small seed to get such a group off the ground. We currently have 50+ participants. If you are interested in giving and receiving support, information, advice, and resources as well as an opportunity to discuss issues such as parenting, inclusion, medical concerns, stress, siblings, etc. with others who may be dealing with some of the same concerns we would love to have you join us.
To obtain more information and the subscribe commands, please contact me. In your message let us know what kind of disability your child is dealing with, and what newsgroup you read this in as I have posted it to several.
Looking forward to hearing from many Pennsylvania parents of children with special needs.
Larry Fiebert, LSW, BCD Assistant Director Family Services 180 W. Germantown Pike Suite B- 3 Norristown, PA 19401 ( 610) 272- 1520 e- mail: famserv@ mail. voicenet. com
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Subject: 10 Reason to Marry a Crip
From: mmf1@ ix. netcom. com ( Mary Fowler)
Organization: Netcom
Ten Reasons to Marry a Guy with a Disability
10. You won't have to feed parking meters.
9. You get discounts at restaurants ( if the 2 of you can get in) 8. You can take the family dog into hotels and restaurants.
7. His parents will be thrilled when they hear that you said " Yes". ( They won't have to worry about him)
6. He has a really neat computer that's easy to use.
5. He has a steady income ( small but steady).
4. He'll carry all your packages.
3. You get to learn another language.
2. He is your knight in shining armor ( chrome).
1. You won't be bored.
Copyright Mary Fowler 1996
-- Please note: Mary Fowler is employed with the Oakland Mayor's Commission on Disabled Persons. Her husband, James Gonsalves, uses a wheelchair.
------ ADAPTING PC'S FOR DISABILITIES BOOK/ CDROM
-- An Electronic Bill of Rights: Adapting PCS for Disabilities
Reading, MA - For persons with disabilities, a properly equipped computer breaks barriers to information access and communication. Adapting PCs for Disabilities is a complete guide to assessing an individual's needs and outfitting a PC with the latest assistive hardware and software. Individuals with disabilities and governmental and educational agencies will need a copy of this book-- it's a practical reference not only to what is possible with a PC, but what is affordable and readily available.
The book's CD features:
o over 60 demos of adaptive software packages
o the complete text of the print book in ASCII o a handy text file viewer
o megabytes of articles and newsletters on assistive technology
o complete text of the ADA and more
o Internet newsgroups and web page resources
Add adaptive products to your PC quickly, affordably, and easily- Adapting PCS for Disabilities shows you how!
Joseph Lazzaro is the Technology Director for the Massachusetts Commission for the Blind, author of numerous articles on computers and technology, and an emerging science fiction writer.
Addison- Wesley is a worldwide publishing company based in Reading, Massachusetts. The Trade Computer Books Group publishes high- quality books for business users, programmers, and computer enthusiasts.
Adapting PCS for Disabilities book/ CD package is available from your local bookstore at a suggested retail price of $ 39.95. ISBN 0- 201- 48354- 8 paperback, 320 pages. -- DEPARTMENT OF JUSTICE NOTICE OF EXTENDED PUBLIC COMMENT PERIOD ON CURB RAMPS.
On November 27, 1995, the Department of Justice published a notice of proposed rulemaking to amend the Department's regulation implementing title II of the Americans with Disabilities Act of 1990 ( ADA) to provide an extension of time for State and local governments to meet their obligation to install curb ramps at existing pedestrian walkways. The public comment period for the proposed rule was scheduled to close on January 26, 1996.
From December 16, 1995 to January 5, 1996, Department of Justice employees were furloughed because of the Federal budget controversy. The government shutdown forced the closing of the ADA Information Line and prevented the Disability Rights Section from receiving or processing requests for copies of the proposed rule. Due to the length of the furlough, the Department is extending the comment period to ensure that all interested individuals are able to obtain copies of the rule and to provide comments. Public comments will now be accepted until March 1, 1996.
A formal notice of this extension will be published in the Federal Register within the next two weeks.
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" News Reviews to Peruse"
Number 25 March 15, 1996
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinion expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- HIGH COST OF COMPLIANCE - According to a preliminary report released by the Advisory Commission on Intergovernmental Relations, the ADA's requirements should be suspended or made voluntarily for communities without the fiscal ability to comply. The Unfunded Mandates Reform Act of 1995 excluded the ADA from its coverage, but instructed the Commission to conduct a study of laws generally regarded by state and local officials as unfunded mandates. Commission member and Philadelphia mayor Ed Rendell ( see related item below) praised the ADA but said the law is too vague to ensure compliance and that the cost of compliance is too high.
The Committee recommended that the law be modified to focus on flexible goals and goal attainment schedules rather than rigid requirements; extend deadlines for compliance; permit only the U. S. Attorney General to enforce the ADA or designate a single federal ADA enforcement agency; provide federal funding to retrofit existing facilities; and increase technical assistance. Also under the Commission's recommended changes, no individual would be permitted to sue a state or local government for noncompliance. Reacting to the report for the disabilities community, Paralyzed Veterans of America attorney Robert Herman stated that replacing requirements with goals would turn the clock back on the disabilities rights movement. " To revert to goal attainment is to revert to the way things were before the ADA," said Herman.
- CUBBIES AND DISABILITIES - The Chicago Cubs have settled a Title III lawsuit with four individuals who use wheelchairs and the Chicago- based Legal Clinic for the Disabled by agreeing to make changes at Wrigley Field, home of the Cubs. The changes will make the 82- year- old ballpark more accessible by this baseball season. Plans are currently under way to provide a minimum of 88 accessible seats and 120 companion seats in three levels, install an elevator, install appropriate signage, and make concession stands, ticket windows, parking, public telephones, bathrooms and water fountains more accessible. The Cubs will also pay $ 20,000 in court costs to the plaintiffs. An attorney for the organization characterized making the 1914 structure located in crowded downtown Chicago accessible an incredible challenge.
- ACCOMMODATION A TWO- WAY PROCESS - According to the 7th U. S. Circuit Court of Appeals, the party which causes a breakdown in discussions about possible accommodations is responsible for any resultant failure to accommodate. After a secretary refused to allow her employer to talk with her doctor about possible accommodations for her osteoarthritis and depression and canceled a scheduled meeting to discuss accommodations, and following a history of attempts to accommodate by the employer, the secretary sued charging failure to accommodate. The trial court granted the employer's motion for summary judgment which argued that the employer never understood exactly what accommodations the employee needed or wanted. The Appeals Court affirmed, stating that " liability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown." Beck v. University of Wisconsin Board of Regents, 1996 U. S. App. LEXIS 1111 ( 7th Cir. 1996)
- LONG- TERM DISABILITY BENEFITS - A federal district court in Illinois has declared that an employee's qualifying for certain long- term disability benefits may disqualify that employee from ADA coverage. In a recent decision, the court examined a case involving an employee- plaintiff who was receiving disability benefits for her severe depression under a long- term disability policy. She was informed that her plan was being modified to limit benefits for certain mental and nervous disorders, while not affecting coverage for other disabilities. The employee filed a claim with the EEOC contending that the modification violated the ADA ( see related " Mason Tenders" item below). The Commission, seeking to enjoin the change on behalf of the employee, argued that although the employee's total and permanent disabilities prevented her from working, she was still qualified for the purpose of receiving benefits. The court denied the requested injunction, stating that since the employee had stated on her disability application that she could not perform any of the functions of her job with or without a reasonable accommodation, she was not a " qualified person with a disability" and, therefore, was not entitled to the ADA's protection. Some may recall that a similar statement on an application was used in McNemary v. Disney Stores ( Issue No. 21, Nov. 1995) to bar ADA eligibility. See also a related item in this issue " Lifting Not a Major Life Activity?." EEOC v. CNA Insurance Cos., 1996 U. S. Dist. LEXIS 601 ( N. D. Ill. 1996)
- TOBACCO SENSITIVITY NOT A DISABILITY - The Northern Illinois court also decided a case in which it found that an employee's severe reaction to tobacco smoke was not a disability. The employee, who had chronic severe rhinitis, informed her employer that her condition was aggravated by cigarette smoke in its office. The employer told the employee nothing could be done and that she should look for another job. The employee sued, alleging a refusal to reasonably accommodate. The court held she did not have a covered disability, rejecting her claim that she was substantially limited in the major life activity of working. ( The 4th Circuit Court of Appeals has also held that an allergy to tobacco smoke is not a disability.) Homeyer v. Stanley Tulchin Associates Inc., 1995 U. S. Dist. LEXIS 17114 ( N. D. Ill. 1995)
- INTERPRETER NEEDED - Failure to provide a qualified sign language interpreter at a meeting where an employee's honesty is questioned may be a failure to provide a reasonable accommodation, according to a New York court. The Marriott Marquis Hotel in New York City was denied summary judgment in a case involving the hotel's dismissal of a deaf hotel worker. At the first predisciplinary meeting with the employee, who was accused of violating company policy regarding the handling of money, a manager who knew " some ASL" ( American Sign Language) made several mistakes in interpreting for the employee. The employee was fired and sued the hotel charging the employer's failure to provide a qualified interpreter at the meeting violated the ADA. ( The hotel, which employs approximately 50 people who are deaf or hearing impaired, formerly had a full- time interpreter.) The court refused Marriott's motion to dismiss, stating that there was no evidence that the employee had not acted reasonably under the circumstances, and that " misunderstandings that emerged at that first meeting ... set a tone of mistrust of [ the employee] that inalterably led to his discharge." Mohamed v. Marriott International, 1995 U. S. Dist. LEXIS 15762 ( S. D. N. Y. 1995)
As this case illustrates, the ADA requires employers to provide a sign language interpreter whenever needed as a reasonable accommodation and not an undue burden. The need may arise in job interviews, training, staff meetings or employee parties, according to the EEOC, as well as employee evaluations, counseling sessions or predisciplinary conferences. The level of training required of an interpreter in any specific situation depends mostly on the nature of the communications expected; the more complex the subject nature the more highly trained must be the interpreter. Whatever the setting, effective communications is required. Information on contracting for Department sign language interpreting services can be obtained through the Office of Affirmative Action/ Contract Compliance.
- STANDING IS ESSENTIAL FUNCTION - An employee brought suit against her employer Wal- Mart when her request for accommodation was refused. The employee, diagnosed with chronic tendinitis, asked for permission to sit while performing her " greeter" duties. Wal- Mart refused, stating that standing was essential for greeters to be " aggressively hospitable," monitor the large entryway and perform other duties, but offered alternative accommodations. In granting Wal- Mart's motion to dismiss, the Colorado District Court found that the employee failed to disprove that standing was an essential function. ( An employer's written essential job functions are presumptively valid and must be disproved by a litigant - an excellent reason to have written EJF's!) Just as significant, the court found that the employee - who was restricted from standing more than five hours per shift and needed 15- minute breaks every two hours - was not significantly restricted in performing a broad range of jobs; thus was not substantially limited in performing any major life activity, including working; and, therefore, did not have a disability for purposes of the ADA. Kuehl v. Wal- Mart Stores, 1995 U. S. Dist. LEXIS 17220 ( D. Colo. 1995)
- EMPLOYEE'S ALCOHOLISM DOES NOT EXCUSE MISCONDUCT - The City of Pittsburgh did not discriminate against its employee by discharging him for driving a city- owned vehicle while under the influence of alcohol, despite the employee's disability of alcoholism, because the city maintained a legitimate non- discriminatory basis for the discharge. The city discharged the employee, who was involved in an accident while DUI, without offering him participation in an employee assistance program (" EAP") to combat alcohol dependency. The city's human relations commission found that the city had discriminated against the employee on the basis of his disability, but that decision was reversed on appeal by the Commonwealth Court of Pennsylvania. The Court found that the city had properly relied on the employee's misconduct, which demonstrated a lack of responsibility and dependability. The Court ruled that the city's decision not to offer entry into the EAP was not arbitrary or a pretext for discrimination because the city was able to show that the EAP was offered only to employees who acknowledged their dependency; the discharged employee denied having a drinking problem. City of Pittsburgh, Dept. of Public Works v. Foster, 669 A. 2d 492 ( 1995)
- $ 1 MILLION SETTLEMENT IN MASON TENDERS - In settlement of a case which has been around as long as the ADA, the Mason Tenders District Council Welfare Fund, which provides employee health insurance benefits, has agreed to pay $ 1 million for excluding AIDS from coverage under its self- insured health insurance plan. A covered employee with AIDS filed a complaint against Mason Tenders with the EEOC in November 1992. The EEOC ruled in 1993 that Mason Tenders had violated the ADA by eliminating AIDS coverage from its health plan. That ruling provoked a suit by Mason Tenders against the EEOC and the employee, which prompted a counter- suit by the defendants. The ADA does not prohibit employers from excluding specified illnesses from health coverage, so long as the exclusion is based on underwriting or classifying risks and not on disability discrimination. AIDS/ HIV is typically targeted for exclusion, although treatment for cancer, neonatal intensive care, traumatic head injuries and heart disease is frequently just as expensive as that for AIDS.
- ACCESSIBLE TELEPHONE SERVICES - Employers of 15 or more persons would be required to install only wireline telephones which are hearing- aid compatible and have volume control if a recently proposed FCC rule is adopted. Employers would not be required to replace or retrofit existing equipment, except possibly as a reasonable accommodation or to make a program accessible, though it will be " presumed" that all wireline telephones are hearing- aid accessible by January 1, 2000. No date has been set for the volume control requirement. 60 Fed. Reg. 63667, 12/ 12/ 95
- STREETS OF PHILADELPHIA ( REDUX) - In a proposed settlement of a class action lawsuit ( see Issue No. 19, Sept. ' 95), the City of Philadelphia has agreed to install curb ramps throughout the city by December 31, 2001. The city plans to allocate more than $ 4 million annually to install the ramps on 10,372 city intersections. The city admits no liability in the settlement, which is pending approval by the U. S. District Court for the Eastern District of Pennsylvania. Koch v. City of Philadelphia, C. A. No. 95- CV- 4270 ( E. D. Pa. 1995)
In a related development, the U. S. Justice Department has proposed extending the Title II deadline to January 26, 2000 for curb cuts in walkways servicing state and local government facilities, transportation, places of public accommodation, other places of employment and residences of individuals with disabilities. The deadline for installation of all other ramps would be extended to January 26, 2005 under the Justice proposal. The extension of these deadlines was urged on the Department by several U. S. legislators ( see Issue No. 17, July 1995).
- NCAA FOLLOW- UP - As reported in last issue and just in time for " March Madness," the NCAA has come under Justice Department scrutiny for its " core course" requirement for student athletes, which may adversely impact students with learning disabilities. The NCAA reports that it is reviewing the effect of the requirement. A recommendation has been made that the association hire an LD consultant and " loosen up" what it considers core course classes for LD students. Also mentioned is the possibility of allowing students to make up core course credit during the summer following their senior year, not permitted under the current rules.
- LIFTING NOT A MAJOR LIFE ACTIVITY? - The U. S. District Court for Kansas has ruled that lifting is not a major life activity (" MLA") and, therefore, a former Boeing sheet metal worker who could not lift due to her carpal tunnel syndrome did not have a disability. The court asserted that the employee- plaintiff's claim, which asserted a substantial limitation on the ability to perform manual tasks, " interprets the ADA too broadly by reading too much into the term ` major life activity.'" Second, the court dismissed her claim that she had a substantial limitation on the MLA of working, opining that she could still work a broad range of other jobs. Next, the court stated that no reasonable accommodation was possible, rejecting the employee's argument that she could perform her old job with the installation of foot controls. Finally, the court determined that the employee was barred from arguing that she was able to perform other work in light of her testimony to the contrary in reaching a workers' compensation settlement. This decision is reminiscent of that in McKay v. Toyota Motor Manufacturing ( see Issue No. 14, Apr. 1995), in which a federal district court in Kentucky likewise found an assembly line worker's carpal tunnel syndrome to not be a disability. Lamury v. The Boeing Co., 1995 U. S. Dist. LEXIS 16262 ( D. Kans. 1995)
- DIABETES NOT A DISABILITY ‘ PER SE’ - The same Kansas federal court ruled in a September 1995 decision that a discharged police officer with diabetes does not have a disability under the ADA, since his diabetic condition did not substantially limit any of his major life activities. In taking issue with the EEOC's interpretive guidance which lists diabetes as a disability, the court is in agreement with the April 1994 decision of a federal court in Texas, Coghlan v. H. J. Heinz Co. ( reported in Issue No. 10, Dec. 1995). ( In Sarsycki v. United Parcel Service, ( 3 AD Cases 1039, D. WOkla., 8/ 31/ 94) a federal court in Oklahoma accepted the EEOC guidance without comment.) Noting that the officer had been involved in numerous incidents of negligence but had never asked for accommodation, and that his personal physician had stated that he was " physically fit and led an active life," the Kansas court found that the officer failed to prove that his diabetes " independently impairs any of his major life functions." The court also rejected the officer's contention that his employer failed to keep his condition confidential, finding the city had acted properly with respect to the information and that it was the officer himself who failed to maintain confidentiality. Deckert v. City of Ulysses, Kansas, 4 AD Cases 1569, D. C. Kans., 9/ 6/ 95
- LEARNING IMPAIRMENT OR POOR PERFORMANCE? - A draftsman discharged for making major mistakes in his work failed to convince the Kansas court that his learning impairment should be regarded as a disability. The employee alleged that his performance problems were a result of memory and vision defects he suffered in a 1971 plane crash. The court granted summary judgment to the employer, finding that the employee had not shown that his learning impairment substantially limited his ability to perform any major life activity, including working, as he was capable of performing a number of jobs even though not suited to be a draftsman. The court observed that " the ADA does not guarantee an individual will get the job he or she wants." Riblett v. The Boeing Co., D. C. Kans., 94- 1055- PFK, 9/ 22/ 95
- NEW ACCESSIBILITY GUIDELINES - The Access Board has announced that it is forming a new committee to study accessibility guidelines for new and altered play facilities ( such as swings, sandboxes and slides). 60 Fed. Reg. 66538
- INTERNATIONAL SYMBOL OF ACCESSIBILITY - The ADA Accessibility Guidelines specifies when and where signs displaying the international symbol of accessibility ( the stick figure in a wheelchair)
_________
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| 0 |
| |_ | | (_)\/ |
|_________|
must be used but requires no particular color scheme for the signs. However, the ADAAG does provide finish and contrast requirements in Section 4.30.5. Characters and symbols must contrast with their background - light on dark, or dark on light - and are most visible when the contrast is at least 70 percent.
- " SHIFT WORK SLEEP DISORDER" - A federal court in North Carolina found in a September 1995 decision that a night- shift police officer who was diagnosed as having " shift work sleep disorder" is not covered by the ADA, since the disorder is not a disability under the law. According to the court, evidence showed that the officer did not experience any effects of his work schedule not experienced by the " overwhelming majority" of night workers. Williams v. City of Charlotte, D. W. N. C. No. 3: 94CV179- P, 9/ 29/ 95
- MAKING ORDER OF BIPOLAR DISORDER - In what at first glance seem to be contrasting decisions, a jury in Washington state has granted a $ 912,000 judgment to a woman with bipolar disorder ( formerly known as manic- depression) fired from her job, while a man with a similar condition was found to have been lawfully discharged by an arbiter in Louisiana. In the Washington case, the jury found that the employee's requests for accommodation had been ignored by the employer, and that her disorder was a " substantial factor" in her dismissal. The case was heard under a Washington state statute which is similar to the ADA. Weaver v. KPLZ, Wash. Super. Ct. No. 93- 2- 31639, 9/ 26/ 95
In the arbitration case, the employee had been counseled, warned and suspended for his aggressive behavior and tendency to threaten and intimidate fellow employees. The record before the arbitrator showed that, despite being under a doctor's care, the employee frequently reduced or abandoned his medication. After a long series of incidents involving other employees, the employee was fired. The employee grieved the discharge, promising that, if reinstated, he would faithfully take his medication, undergo testing to determine the proper level, attend counseling and pay all costs of treatment. Upholding the discharge, the arbiter stated that an employer should not tolerate an employee who threatens the safety of others and that the employee never showed himself capable of controlling his outbursts or keeping his promises to change his behavior. In re Rohm and Haas Texas Inc. and Oil, Chemical and Atomic Workers Local 4- 367, 104 La. 974, 5/ 10/ 95
- MODELING COMPLIANCE - Sears, Roebuck company has agreed to make its modeling course for children ages 8 through 17 accessible to children with disabilities. The agreement is the culmination of an ADA complaint filed with the Justice Department by sixth- grader Summer Nicole Peavy, who uses a wheelchair and who was denied entry into Sears' " Model's Club Program." Under terms of the agreement, Summer will be admitted to the program without cost to her. Sears will train instructors about the ADA, ensure that ramps and walkways used in the program comply with the Act, and include children with disabilities in its promotional material for the program.
On that mention of " Summer," this edition ends. I hope the nice weather lasts long enough for each of you to enjoy it!
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" News Reviews to Peruse"
Number 26 April 15, 1996
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinion expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- APRIL IS NATIONAL OCCUPATIONAL THERAPY MONTH
- CURB CUT DELAY OPPOSED - According to the Justice Department, ninety- five percent of comments submitted are in opposition to the Department's proposal, reported in last issue, to extend the deadline for installing curb cuts by municipalities. Many comments emphasized the safety advantages of installing ramps as well as the economic benefit of allowing persons with disabilities freer access to the workplace. Not surprisingly, the majority of comments from local and state governments were in favor of the delay.
- KUDOS TO DALLAS HYATT REGENCY - The National Council on Disability, in search of a facility accessible to a wide range of disabilities for its National Disability Policy Summit this month, found its search to be an exercise in frustration. According to a Council representative, the search for an appropriate facility took more time than any other aspect of planning the summit. Until the Dallas hotel was investigated, that is. The Hyatt, located in downtown Dallas, is fast gaining a reputation in the disabilities community for sensitivity to the community's members. The hotel has devoted 28 guest rooms out of 939 for guests with mobility, visual or hearing disabilities. Amenities include roll- in showers and accessible tubs, touch- sensitive controls for lights and temperature, lowered peepholes and coat racks, closed caption TV decoders, telephones and door alarms which can be perceived by sight as well as sound, vibrating alarms clocks, Braille menus and signage, ramps and lifts, doors with accessible hardware, and accessible recreational facilities. The hotel has been completely renovated since 1993, when the hotel was the target of a Justice Department investigation in response to a complaint from the Spina Bifida Association.
The theme of the by- invitation- only NCD summit, scheduled for April 27- 29, is " Achieving Independence: Challenge for the 21st Century, A Decade of Progress in Disability Policy: Setting an Agenda for the Future." Summit topics will include employment, education, transportation, civil rights, health insurance and health care, housing, policy and program coordination, technology, long- term services, income maintenance and international/ foreign policy. Support for the summit is being provided in part by McDonald's Corp. and the Washington, D. C. law firm of Meyer Brown and Platt.
- COLLECTIVE BARGAINING RIGHTS AND THE ADA - The U. S. Seventh Circuit Court of Appeals is hearing an appeal on the question of the supremacy of an employee's seniority rights from a union contract over the ADA's reasonable accommodation obligation. A Conrail employee has alleged he was denied an accommodation because it conflicted with a seniority provision of his collective bargaining agreement. The EEOC, in an amicus brief filed with the Court, argues that a per se rule that a union contract will always prevail over a claim for reasonable accommodation is contrary to the ADA. Conrail argues that legislative history demonstrates that Congress never intended " bumping" another employee to accommodate an employee with a disability to be permitted. Eckles v. Consolidated Rail Corp., CA 7, No. 95- 2856
- ACCOMMODATION COSTS - A follow- up study on the costs of accommodations made by Sears, Roebuck and Co. found that Sears' average cost of accommodation made between 1993 and 1995 to be $ 45. The study, performed by the Annenberg Washington Program originally in 1994, found the average cost prior to 1993 to be $ 121. The new study also found that of more than 70 workplace accommodations studied at Sears, 99 percent required little or no cost. Eighty percent of informal complaints and 98 percent of formal complaints at Sears were resolved effectively without resort to litigation. The report highlights that every Sears manager interviewed for the report understood that the ADA is an antidiscrimination law, not a preferential treatment law. Free copies of the report - " Communicating the Americans With Disabilities Act: Transcending Compliance, 1996, Follow- up Report" - are available in accessible formats from Annenberg Senior Fellow Peter David Blanck at ( 319) 335- 9043 or by fax at ( 319) 335- 9019.
- EEOC APPOINTMENTS - Peggy Mastroianni, who has served as the EEOC's director of ADA policy since 1991, has been appointed by Chairman Gilbert Casellas to be the agency's associate legal counsel. In her new position, Mastroianni will develop Commission policy on the ADA, Title VII of the Civil Rights Act and the Age Discrimination in Employment Act ( ADEA). Her replacement as legal counsel for ADA policy is Lyn J. McDermott.
Also at the EEOC, it was announced that ADA policy attorney David K. Fram will be departing the agency to join the staff of the National Employment Law Institute as Director of ADA and EEO Training. In addition to his other duties at the NELI, Fram will continue his frequent public speaking appearances. Those of us who have been fortunate to hear David speak are glad to hear this news!
- DEADLINE FOR COMMENT ON AIRLINES EXTENDED - Because of the number of comments received in response to the Paralysis Society of America's survey to determine airline compliance with the Air Carrier Access Act, the deadline for comment has been extended to September 1996. If you wish to participate in the survey, or know someone who might, calls should be placed to 1- 800- 643- 8245, or a message can be sent via the Internet to http:// www. computek. net/ access95/.
- NEW ADA PUBLICATION - Your editor has received his first copy of " ADA in Action," a publication of the Mid- Atlantic ADA Information Center. The Winter 1996 issue ( Vol. II, No. 1) contains an article on " HIV/ AIDS in the Workplace," book and video reviews, and updates on cases, the EEOC, and the DOJ. The Center is a publicly- funded ADA assistance center located in Arlington, VA, offering free technical assistance, ADA regulations and materiel, training and informational seminars. A number of events are being planned by the Center, including a program on disability awareness in cooperation with the Northeast Pennsylvania Center for Independent Living in Scranton. For more information on the Center or to subscribe to its free publication, call 1- 800- 949- 4232( Voice/ TDD).
- AIDS/ HIV INFORMATION - For a " Manager's Kit" or a " Labor Leader's Kit" produced by the Centers for Disease Control and Prevention ( CDC) to assist in developing workplace strategies for addressing HIV/ AIDS issues, interested persons should contact: the CDC National AIDS Clearinghouse, Business and Labor Resource Service at 1- 800- 458- 5231; the National Association of People With AIDS at 202- 898- 0414; or the National Leadership Coalition on AIDS at 202- 429- 0930.
The Department of Justice has published its own guide for employers and local and state governments on AIDS/ HIV issues. Copies can be obtained by calling 1- 800- 514- 0301 ( voice) or 1- 800- 514- 0383 ( TDD).
- PROOF OF DISABILITY - A federal district court in Georgia has ruled that possession of a state- issued handicap parking placard is insufficient to prove that an employee needed a parking accommodation from her employer. The employer had asked for proof of disability in support of the employee's asserted right to use designated employer parking. The employee had returned to work following an automobile accident with no restrictions on her ability to work. Dumas v. Keebler Co., 5 AD Cases 69, DC MGa, No. 5: 95- CV- 242- 3, 11/ 14/ 95
- EXEMPLARY EMPLOYER - Blue Cross of Western Pennsylvania has received the 1995 Employer of the Year Award from the Governor's Committee on Employment of People with Disabilities for its role in providing career opportunities for people with disabilities.
- Attached you'll find articles which may be of interest to you:
- " National Library Service Information on the Internet"
- Equal Access to Software and Information ( EASI) " News for You," Vol. 6, No. 1, March 1996
- ITD " Online Information and Networking"
Welcome Spring!
DEPARTMENT: LIBRARIES
NATIONAL LIBRARY SERVICE ( NLS) INFORMATION ON THE INTERNET
Judith Dixon, Ph. D. National Library Service
The Library of Congress provides access to information about its resources and services over the Internet. The National Library Service for the Blind and Physically Handicapped ( NLS) is represented with its Union Catalog and with other NLS publications.
The Union Catalog and the catalog of books in process are available through a search system called LOCIS. LOCIS and other publications are accessible through the Library of Congress's gopher, called LC MARVEL; the Library of Congress's World Wide Web site; and through the Library's ftp site. These services are described below.
LC MARVEL
The Library of Congress Machine- Assisted Realization of the Virtual Electronic Library ( LC MARVEL) is a Campus- Wide Information System that combines the vast amounts of information available about the Library with easy access to diverse electronic resources on the Internet. Its goal is to serve members of Congress, Library of Congress staff, and constituents throughout the world. Documents are, for the most part, in ASCII text.
LC MARVEL can be accessed in several ways:
1. From another gopher server;
2. By using gopher client software and pointing to marvel. loc. gov, port 70; and
3. By using a World wide Web browser and connecting to gopher:// marvel. loc. gov/.
Main Menu
The Main Menu of LC MARVEL consists of the following selections:
1. About LC MARVEL
2. Events, Facilities, Publications, and Services
3. Research and Reference ( Public Services)
4. Libraries and Publishers ( Technical Services)
5. Copyright
6. Library of Congress Online Systems
7. Employee Information
8. U. S. Congress
9. Government Information
10. Global Electronic Library ( by Subject)
11. Internet Resources
12. What's New on LC MARVEL
13. Search LC MARVEL
Menus From the main menu select option # 2: Events, Facilities, Publications, and Services. Then select option # 6: Services to Blind and Physically Handicapped Individuals, and follow the available options to see NLS publications and databases.
World Wide Web
NLS has established a homepage on the World Wide Web. This hypertext document is available on the Library of Congress web site at: http:// lcweb. loc. gov/ nls
It includes an audio sample of a talking book and links to NLS information available on LC MARVEL and to regional and subregional libraries in the NLS network that offer information on the Internet. This page can also be accessed from the main Library of Congress homepage under " Research and Collections Services."
FTP Site
A limited number of files are also available through the Library's anonymous site. The address of the FTP host is ftp. loc. gov ( or 140.147.2.69). The directory / pub/ nls includes a SCORPIO search guide and subdirectories containing NLS bimonthly listings and annual catalogs.
E- mail
Internet users may also send messages to NLS. The NLS Internet address is nls@ loc. gov. EASI NEWS FOR YOU ( EASI: Equal Access to Software and Information, an affiliate of AAHE) Special National Science Foundation Edition Spring, 1996 Vol. 6, # 1
( Also available on the EASI web http:// www. rit. edu/~ easi in an interactive format)
PAGE 1
EASI ENTERS SECOND YEAR OF NSF PROJECT WITH PLENTY TO OFFER
As EASI moves into the second year of its National Science Foundation project to compile and disseminate materials on access to the fields of science, engineering and mathematics, chair of the organization and director of the project, Dr. Norman Coombs reports that a wide variety of materials have already been made available. " We're a little more than a year into the project, and so far I'm pleased with our progress. In December we did an awareness mailing to 5,000 science, engineering and math department heads at colleges and universities, we've got a Web page up on sem issues, we've released the first videotape of the ' EASI Street to Science, Engineering and Mathematics' trilogy of videos. The second one will be released by the end of this month, and we've begun shooting the third video already. " In addition, we're sponsoring the CSUN mini- conference on science, engineering and math issues, and we're getting ready to pilot our online sem course the first week in April. " We've really gotten to the point where the research and compilation that we did during the first year is paying off in resources that we can offer now." _____________
LEARN THE EASI WAY -- ONLINE, ANYTIME AND ANYWHERE
Historically people with disabilities have faced both social and technical barriers that have deterred them from studying or working in the fields of science, engineering and mathematics. While the barriers can be daunting, researchers are developing new tools that help people with disabilities work in these technical fields. EASI has developed on online workshop that focuses on access to science, engineering and mathematics. The course, called EASI- SEM , discusses access barriers and also describes simple access solutions and new technologies such as AsTeR, Dotsplus, and tactile graphics. The course development was funded by a National Science Foundation grant and includes videotapes and manuals developed for the project. The course facilitator is Carmela Cunningham, and the grant's team of consultants will provide continuing technical support. The two- week course will begin on June 3, with another course beginning on Oct. 14. The cost is $ 95 for the course plus $ 75 for the three videotapes. EASI also has other online workshops that focus on adaptive computing technology, disability law, and tools to assist educators who work with people with hearing impairments. All courses are provided over the Internet using e- mail and can be taken from anywhere and at any time. Previous workshops have reached more than 500 subscribers in two dozen countries.
ADAPT- IT This three- week course is ideal for administrators, teachers, librarians, computer support staff, ADA compliance officers and service providers. It focuses on how to set up computing technology and services for individuals with disabilities. There are components on the law, workstation access, compensatory computing tools, making computers accessible and planning services. This workshop also teaches participants how and where to locate the most recent, relevant information on disabilities located on the Internet. Taught by Carmela Cunningham, Dick Banks and Norman Coombs, people who have written and consulted extensively on adaptive technology and information access. April 22, July 8, September 16, November 4. $ 125.
ADAPT- IT II
This three- week, advanced course on adaptive technology focuses on the technical questions that arise with the rapid move to Windows and Windows 95. The rapidly changing face of the World Wide Web and developments related to structured electronic texts present another set of challenges for people with disabilities. Participants must have at least an intermediate proficiency with operating systems, adaptive hardware and software and a familiarity with the World Wide Web and modern Web browsers. Useful for adaptive technologists, computer support staff or systems administrators. Taught by Dick Banks, adaptive technologist. June 10, October 14 $ 125.
DISABILITY LAW: THE AMERICANS WITH DISABILITIES ACT
This two- week course includes an overview of the ADA, Equal Employment Opportunity Commission ( EEOC) terms, and the Civil Rights Act of 1991. Taught by Adam Klein of Levy Davis Maher & Klein, a law firm that specializes in employment disability cases. Useful to employers, affirmative action officials, human resource staff and individuals who want to know their rights. April 29, July 15, September 23, November 11. $ 75.
THE INTERPRETING CLASSROOM AND YOUR COMPUTER
This three- week workshop will explore computers and the Internet as tools for enhancing the classroom for interpreting educators. The workshop will demonstrate the uses of e- mail, listservs and bulletin boards as sources of valuable information. The workshop will be taught by Chris Monikowski, of the National Technical Institute for the Deaf and Elizabeth Winston, research director at the Educational Linguistics Research Center. March 27, July 15, October 7 $ 150.
DEAFNESS AND HEARING LOSS: AN INTRODUCTION
Deafness or significant hearing loss mean different things to different people. This can be confusing for a supervisor or administrator. This workshop is for those who have interaction with students, clients or employees who are deaf or hard of hearing. The course will assist them in knowing how to understand and to meet the unique needs of individuals with hearing impairments. Useful for professionals in education and business as well as for parents or other advocates for people with hearing impairments. Taught by Jimmie Joan Wilson, a faculty member and support specialist in the National Technical Institute for the Deaf of the Rochester Institute of Technology. June 10, September 30, November 11 $ 75. For further information on any online courses, contact Carmela Cunningham at: carmelac@ aol. com or call: 714- 830- 0301 or fax: 714- 830- 2159.
CSUN MINI CONFERENCE FOCUSES ON SCIENCE, ENGINEERING AND MATH ISSUES
As part of the California State University Northridge 10th Annual Conference on Technology and Persons with Disabilities, EASI consultants will conduct a one- day mini- conference on science, engineering and mathematics. The five presentations will be held on Thursday, March 21 and will be GIVEN by EASI's NSF project consultants. Presentations include: " Technology for Students with Learning Disabilities," by Carolyn Gardner, Linn- Benton Community College and Dr. Noell Gregg, University of Georgia. " How to Convert Text and Symbolic Information Into Braille," by Terri Hedgpeth, Arizona State University. " Audio System for Technical Readings: Interactive Computer Access to Science, Engineering and Math Documents," by T. V. Raman, Adobe Systems. " Teaching Science, Engineering and Mathematics to Deaf Students: The Role of Technology in Instruction and Teacher Preparation," Harry Lang, National Technical Institute for the Deaf. " Tactile Figures for Blind Students of Science, Engineering and Math," by John Gardner, Oregon State University and Dave Skrivanke, Repro Tronics. " Teaching Lab Courses to Students with Disabilities," by Sheryl Burgstahler, University of Washington and David Lunney, East Carolina University.
EASI News, Page 2
EASI ONLINE: INFORMATION AND ADVICE
A high school science teacher is trying to figure out what kind of screen reader will do the best job for his students with learning disabilities, and an analyst from an investment company needs information on voice recognition programs. A librarian from a college in the Midwest needs help determining what kind of hardware and software will most effectively help people with disabilities use the library. A new graduate, who happens to be blind, has just been offered his first job. His prospective employer is willing to make all the necessary accommodations, but the job's in a different city, and he's not sure whether to take it. He's looking for advice from others who have been in the same position. They all find what they're looking for on one of EASI's three electronic lists that focuses on providing information, support and a forum for people with disabilities. The lists were established to discuss adaptive computing technology and information access, and they do. But in the process, the people on the lists have established relationships with one another and no one is too shy to ask -- or offer -- personal experience and advice. The EASI lists include more than 1,800 subscribers from colleges, universities, businesses and non- profit organizations around the world. Most times an inquiry will get about four to six answers from people who are somehow involved with adaptive computing technology. But sometimes a question will provoke a debate that continues on for several days and involves people from all over the United States, Canada, and several other countries. The three lists that EASI administers are EASI, AXSLIB- L and ABLE- JOB. The EASI list focuses on general discussion about adaptive equipment, access issues and other disability and computer topics. AXSLIB- L focuses on library access issues, and ABLE- JOB discusses work transitions and job accommodations. To join the EASI list, send a message to: listserv@ sjuvm. stjohns. edu Leave the subject line blank. In the body of the text type: sub easi " first name last name" ( put your name in quotes as shown.). Send questions to nmcb@ nmsu. edu To join the library discussion list, send to the same address, the message: sub axslib- l followed by your first and last name in quotes as shown above. To join the job accommodations list, send to the same address, the message: sub able- job followed by your first and last name as shown above. EASI information and publications are also available on EASI's home page on the World Wide Web. URL: http:// www. rit. edu/~ easi _____________
EASI ON THE WEB
EASI established a home page on the World Wide Web in spring of last year. One of the prominent features of the page is the science, engineering and mathematics section, where you can find information on new technologies and programs. All of EASI's publications and information on projects and activities can be found on the Web Site, along with information about related projects and institutions, new disability- related legislation, and social issues. The page is updated frequently. EASI's home page URL is: http:// www. rit. edu/~ easi
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COMPUTER ACCESS AND SUPPORT ARE COVERED IN NEW ORYX BOOK
" Adaptive Computing Technology and Information Access," a book based on the EASI Seminar Series will be released by Oryx Press in August. The book was co- written by Carmela Cunningham and Dr. Norman Coombs. The focus of the book is setting up adaptive computing support services for people with disabilities, and although the book is aimed at colleges and universities, most of the strategies carry over into the workplace. The 200- page book has stories of individuals who use adaptive technology, practical information on how to set up and enhance labs, strategies on how to administer, plan and fund adaptive tech programs, and an extensive resource section. There are also comprehensive chapters on science, engineering and math access, K- 12 and workplace transitions, and library and electronic information access issues.
LIBRARY ACCESS FOCUS OF SPECIAL PUBLICATIONS
The Library Hi Tech Journal will publish a special section called " Libraries and the Empowerment of Persons with Disabilities." The issue is a compilation of articles that are also found in the current issue of EASI's electronic journal, " Information Technology & Disabilities." The journal tackles such issues as making libraries physically and informationally accessible. The Hi Tech Journal will be available in April. EASI's version is available now. Get the table of contents at URL: http:// www. rit. ed./~ easi/ easijrnl/ itdv02n4contents. html
EASI NEWS, Page 3
EASI STREET TO SCIENCE, ENGINEERING AND MATH
As part of its National Science Foundation project, EASI is creating a trilogy of videotapes and accompanying manuals that focus on access to science, engineering and mathematics. The " EASI Street to Science, Engineering and Math" series focuses on the barriers that people with disabilities encounter when they work and study in the technical fields and how to make the educational and business environment accessible to people with various kinds of disabilities. The first tape, which is already available, focuses on general adaptive computing technology as the foundation for providing access in any field. The second videotape, which will be available in late March, focuses on math and graphics. The manual that accompanies this videotape will have sections on AsTeR, Dotsplus, and Braille and the Nemeth Code. The third videotape, which will be available in July 1996 is a guide to accessible laboratory equipment. " The EASI Guide to Adaptive Computing Technology," is the first of the series. This videotape is a general overview that focuses on general adapted computing tools, and how those tools open doors for people with disabilities. The 22- minute video provides a brief overview of the types of technological solutions that provide access to computers and -- through computers -- to every field of endeavor. The handbook that accompanies the video gives descriptions of commonly used adaptive hardware and software, a list of resources for more information about adaptive computing, vendor names and phone numbers, contacts for state Tech Act offices and suggestions for further reading about how to provide access to science, engineering and mathematics. The handbook also includes an overview of the barriers that exist for people who are trying to study and work in the science, engineering and mathematics fields, and a brief section on sensitivity issues. " The EASI Guide to Adaptive Computing" focuses on discussions of adapted computing equipment such as: one- handed keyboards, on- screen keyboard emulators, single switch input devices, tongue- touch keypads, optical scanners, speech synthesizers, voice recognition and other types of adaptive equipment. Cost of the videotape is $ 30. For information on how to obtain a copy of the videotape and handbook, contact Carmela Cunningham at: carmelac@ aol. com or fax: 714- 830- 2159. Or write: EASI, Post Office Box 1095, El Toro, California 92630.
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BOOK REVIEW
by Tom McNulty
Reprinted from Library Hi- Tech Journal News
Adapting PCS for Disabilities by Joseph J. Lazzaro
Over the past few years, there has been no shortage of new books on technology and disability. As the world of libraries becomes increasingly dependent upon electronic means of organizing, retrieving and delivering information, access to the personal computer means independence for students, professionals, and other library users; this independent access is even more important to the user with a disability. Many librarians are aware of the technologies available to disabled individuals, but the world of access technology has grown so quickly that few of us know how or where to begin to integrate the technology into our libraries. Adapting PCS for Disabilities, by Joseph J. Lazzaro, provides an excellent overview of personal computers and the myriad hardware and software products available for users with disabilities. Adapting PCS opens with a description of the basic components of the microcomputer. Even the computer user with some experience might benefit from the clear, easy- to- understand definitions of expansion slots and circuit cards, parallel and serial ports, the motherboard, etc. This concise but thorough basic information is followed by a series of chapters organized not by disability group, but rather by the nature of the obstacle posed by the computer. Computers are basically input- output devices. Some disabilities, like low vision and blindness, pose output problems. Unable to see the traditional monitor -- the output device used by the vast majority of individuals -- these computer users need an audible or tactual solution. People who can't use the computer's standard input device -- the keyboard -- need work- arounds such as voice input in order to become independent computer users. These are just a few of the access solutions described in the book's main chapters -- " Adapting the Keyboard" and " Adapting the Video Monitor." In addition to the PC adaptive solutions indicated by the title, separate sections on adaptive communication ( for the individual with speech and/ or hearing disabilities) as well as computer workstation ergonomics make this an indispensable work for the complete novice. The exhaustive description and contact information for major producers of access technologies, as well as the CD- ROM full of software, further extends the usefulness of this primer to the more experienced teachers, librarians and rehabilitation professionals in this fast- changing field.
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EASI RECEPTION AT CSUN
If you're attending the CSUN Tenth Annual " Technology and Persons with Disabilities" conference in Los Angeles this week, stop by and meet some of the people you've only talked to via e- mail. EASI will be hosting its third annual reception at the CSUN conference at the Marriott Hotel on March 20 from 7 to 9 p. m. The reception will be held in the Chicago Room. Dr. Norm Coombs, chair of EASI, Carmela Cunningham, EASI editor, Dick Banks, EASI Lists manager, and other EASI members will be on hand to welcome you.
EASI News, Page 4
SUPPORTERS HELP EASI ACCOMPLISH GOALS
If EASI has helped you in the past, now is your chance to help EASI. You can make a tax- deductible contribution to the organization to help support projects such as offering free publications, electronic discussion lists, Web page maintenance and other EASI activities. EASI has received support from several individuals and organizations in the past and gratefully acknowledges that generous support. Past and present sponsors and contributors include: the National Science Foundation, the American Association for Higher Education, EDUCOM, Apple Computers, Inc., the Rochester Institute of Technology, the University of California, Los Angeles, the University of California, Irvine, the University of Washington, St. Johns University, the Bell- Atlantic Charitable Foundation, the NEC Foundation of America and Arkenstone, Inc. If you are interested in making a tax- deductible contribution to EASI, please contact Carmela Cunningham at carmelac@ aol. com or 714- 830- 0301. You may also send donations for EASI to: American Association for Higher Education c/ o Kristin May. One Dupont Circle, Suite 360, Washington, D. C. 20036- 1110. If you would like to charge your donation to your VISA or MasterCard, please send a note including your: name, address, phone number, type of card, account number and expiration date amount of contribution and your signature.
EASI Contacts
E- MAIL: EASI@ EDUCOM. EDU Postmaster: Bill McQueen
PHONE: Office: ( 714) 830- 0301 TDD:( 310) 206- 5155 FAX:( 714) 830- 2159
MAILING ADDRESS: EASI Post Office Box 1095 El Toro, CA 92630
Dr. Norman Coombs, Chair Professor of History Rochester Institute of Technology Phone:( 716) 475- 2462 FAX:( 716) 475- 7120 E- mail: nrcgsh@ rit. edu
Dr. Sheryl Burgstahler, Vice Chair University of Washington DO- IT Program Phone:( 206) 543- 0622 E- mail: sherylb@ cac. washington. edu
Carmela Cunningham, Editor Phone:( 714) 830- 0301 FAX:( 714) 830- 2159 E- mail: carmelac@ aol. com
EASI ( Equal Access to Software and Information) is an affiliate of: The American Association of higher Education One Dupont Circle Suite 360 Washington DC 20036 ( 202) 293- 6440. DEPARTMENT: ONLINE INFORMATION AND NETWORKING
Steve Noble, Recording for the Blind & Dyslexic slnobl01@ ulkyvm. louisville. edu
RFB& D NEWS
Recording for the Blind and Dyslexic's online catalog was moved in December to a new Internet host site, making the old r2d2 address inoperative. The new address is wais. jvnc. net 4445. Be sure to include the port number 4445 in your telnet command. You can also gopher to wais. jvnc. net and go through the Publishers Online menu, or use the EASI gopher via sjuvm. stjohns. edu.
RFB& D may be reached on the Internet by sending e- mail to our information center at INFO@ RFBD. ORG
DISCUSSION LISTS
Blind- Jobs- L
Blind- Jobs- L is a new mailing list for anyone interested in the discussion of jobs and employment related issues for persons who are blind. To subscribe, send email to:
majordomo@ winnie. freenet. mb. ca
leave the subject line blank, and send the following message:
SUBSCRIBE BLIND- JOBS- L
ACCESS
The Media Access mailing list is devoted to the discussion of alternate access to all forms of media, and includes such topics as film and video captioning, audio description, and computer based information.
To subscribe, send email to: listmanager@ hookup. net
leave the subject line blank, and send the following message:
SUBSCRIBE ACCESS
WORLD WIDE WEB
NFB
The National Federation for the Blind is now on the Internet. Services available online include access to NFB's monthly publication, _ The Braille Monitor_, and two quarterly publications, _ Future Reflections_ and _ Voice of the Diabetic_. Numerous other NFB publications and a variety of technological information also can be found at the NFB site. The web address is:
http:// www. nfb. org If you do not have Web access, you may also reach the NFB via FTP at the address nfb. org.
* Focus on News* There are currently a number of excellent news information resources available on the Web. Many of these make extensive use of graphical information, including photos and maps, but nearly all of them contain a major proportion of simple text. Here are a few sites of interest:
CNN at http:// www. cnn. com
This is one of the widest ranging sites, but also has a lot of graphics. Contains world news, U. S. news, business, sports, entertainment, weather, and other headings;
The Electronic Telegraph at http:// www. telegraph. co. uk
This London- based news service includes much the same types of stories as CNN, but without the usual U. S. slant on the news. Of particular interests to some may be the European cricket, rugby, and soccer scores. This service requires first- time users to register online; Reuters News Media at http:// www. yahoo. com/ headlines/ current/ news
The Reuters service is an excellent Web site for news and makes only minimal use of graphics. Story headings are laid out in such a way that fast retrieval of breaking news stories is fairly simple; Yahoo News Directory at http:// www. yahoo. com/ news/
This site is the ultimate news source. It provides literally hundreds of links to international, national and local news sources across the globe. At last glance, this site listed 252 newspapers, 281 newswires, 21 sports publications, 56 K- 12 newsletters, and 187 university papers-- just to mention a few subdivisions. @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 27 May 15, 1996
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinion expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
Hello! Today ( Tuesday) is a beautiful day, and presages more to come. Spring is here and Summer can't be far behind - the birds and buds are on the trees and the demonstrators are on the Capitol plaza. Life is good; for you, too, I hope!
- NAADAC & DEP - TOGETHER AGAIN - Thanks to the efforts of DEP ADA Coordinator Audrey Kembel, the Department is once again an active member of the National Association of ADA Coordinators. Membership in NAADAC gives DEP access to the association's conferences, libraries, membership and other services. The NAADAC Fall Conference is currently in the works for October 2- 4 in Pittsburgh, co- sponsored by Penn State University and the State Senate.
Speaking of NAADAC, an article in the association's April newsletter reported on EEOC Commissioner Paul Miller's unscheduled address to the NAADAC conference in San Diego. Miller highlighted the efforts of the EEOC to extend its outreach on ADA issues and indicated that the EEOC wanted to work closely with the NAADAC on those issues. A formal meeting in Washington with the NAADAC Executive Director and others is being planned.
Finally, David Fram, an attorney and former advisor with the EEOC's Policy Division has been named to the NAADAC's Board of Directors. Mr. Fram, one of the authors of the Title I ADA Technical Assistance Manual and a fine author and public speaker, is currently Director of Training for the National Employment Law Institute.
- ADA NOT A " SAFE HARBOR" FOR DRUG USE - A Court in Louisiana has stated that, while the ADA provides a " safe harbor" for persons in rehabilitation from drug dependency, it does not protect persons who are enrolled in programs but still using illegal drugs. The case involved a State employee fired when he was found with an illegal drug while driving a State vehicle. The employee claimed a drug- addiction disability and claimed he was enrolled in a program. The Court rejected the argument, holding the ADA provision applies only to long- term recovery programs and requires that the employee be stable and drug- free for a considerable period of time. ( Baustian v. State of Louisiana, 4 AD Cases 1692, DC ELa No. 95- 1072, 10/ 4/ 95)
Meanwhile, the U. S. Supreme Court has let stand a decision making it easier for employers in the Ninth Circuit to terminate employees who are guilty of drug- related misconduct. After an investigation, the employer fired 17 employees for their involvement in a sales and distribution network, mostly of marijuana. The employees sued alleging that they had been fired for their drug addiction disability. The Ninth Circuit Court of Appeals held that the employees had failed to prove that the employer's reasons for firing them were a pretext for discrimination. ( Collings v. Longview Fibre Co., US SupCt, No. 95- 764, 1/ 8/ 96)
These two decisions are generally consistent with previous court decisions on the question of how long a drug user must be " drug- free" in order to be covered by the ADA.
- YMCA LIFEGUARD POLICY CHALLENGED - A $ 20 million lawsuit was brought by 32- year- old David Schultz, who has been deaf since birth, against the YMCA when the association revoked his lifeguard certification because of his deafness. The YMCA contends its 1994 policy requiring lifeguard candidates to be able to hear is necessary to ensure the safety of its pools and that the ability to " hear noises and distress signals" is an essential function of a lifeguard. Schultz, who was also certified by the American Red Cross and the Professional Association of Diving Instructors, counters by saying that his deafness has, in fact, made him " more attentive." The suit, brought under various disability- related statutes including Titles II and III of the ADA, Section 504 of the Rehabilitation Act and a Massachusetts statute, seeks an injunction against the policy and the award of monetary damages.
- ADA PRICE TAG - According to a recent Government Accounting Office survey, more money will be spent by public elementary and secondary schools to comply with the ADA and Section 504 of the Rehabilitation Act than for any other federal mandate. Approximately $ 5.2 billion out of a total $ 11 billion spent in the next three years will be spent to comply with the disability laws. Respondents to the survey indicate that over the past three years, their schools have spent an average of $ 40,000 on accessibility ( though figures vary widely). In a previous report, the GAO estimated that as much as 35 percent of barrier removal efforts were unnecessary, and were initiated due primarily to misunderstanding of the law's requirements.
- SWIFT REMEDIAL ACTION PAYS OFF - Werner Bus Lines avoided what could have been a sizable judgment against it by the swift action of its corporate president. The lawsuit ensued as a result of a Werner bus driver, backed up by a corporate vice president, denying a blind couple with guide dogs access to his bus. In response, Werner's president personally apologized to the couple by phone, letter and on a television newscast; issued a corrective memo to all drivers, spoke to drivers at their next scheduled meeting and added a section on accommodation to the drivers' handbook; and invited the Montgomery County Association for the Blind to address the drivers. In dismissing the couple's suit, the U. S. District Court for the Eastern District of Pennsylvania determined that no risk of future harm existed in light of the president's actions and given the infrequency with which the couple utilized the service. ( O'Brien v. Werner Bus Lines, 1996 U. S. Dist. LEXIS 2119, E. D. Pa.)
While we're on the subject of buses, President Clinton extended the time for operators of over- the- road buses to comply with the ADA's accessibility requirements by signing the National Highway System Designation Act of 1995 in November. Based partly on the Transportation Department's failure to issue final regulations, the deadline for compliance was extended to 1998 for large and 2000 for small operators.
- INTERPRETERS OR NOT? - On many college and university campuses this year, " real- time" captioning is taking the place of sign language interpreters at lectures. In the former, a stenographer sits next to a deaf or hearing impaired student. The stenographer records the lecturer using stenography equipment and the text appears on a laptop computer screen the student can read. A student with a speech impairment can type questions into the laptop for the stenographer to ask. This system has the benefit of creating a computer " document" of everything said in class and is superior to interpreting in cases of higher- level scientific courses involving complex concepts. In addition, it appears to be more economical than hiring interpreters, especially in longer classes where more than one interpreter is required. Science marches on!
- MEDIA ACCESSIBILITY - The Telecommunications Reform Act of 1996, signed into law February 8, requires television broadcasters to make their programming accessible to people with vision and hearing impairments through use of closed captioning or visual description. The law requires the FCC to establish regulations and implementation schedules within 18 months to ensure video programming is accessible.
- OSCAR TREND? - Do you realize that in the past eight years, the Academy Award for lead male actor has been awarded six times for a portrayal of a person with a disability? It's true - Al Pacino for a blind veteran, Daniel Day- Lewis as a quadriplegic painter, Tom Hanks for an attorney with AIDS one year and a person with mental retardation the next, Dustin Hoffman as a person with autism and Nicholas Cage's portrayal of an alcoholic.
- SENIORITY NOT RESERVED - An employer's duty to provide reasonable accommodation for a truck driver did not include a responsibility to reinstate the driver with seniority. The trucker - who had multiple sclerosis - was reassigned to a non- union janitorial position as an accommodation. When he was cleared four years later to return to driving, he was hired as a new employee with no seniority. When he was laid off in a reduction in force two years later, he sued under the ADA, arguing that because of his disability he had lost 20 years seniority. The U. S. Court of Appeals for the Seventh Circuit affirmed the lower court's dismissal based on the trucker's failure to file his complaint within the applicable statute of limitations. In dicta, the Court added "[ i] f you are removed from a union position ... you lose the seniority accrued ... seniority does not vest." ( Kennedy v. Chemical Waste Management Inc., CA7, No. 95- 2987, 95- 3221, 3/ 19/ 96)
- MOHAMED V. MARRIOTT UPDATE - A federal District Court in New York has ordered the sign language interpreting abilities of a Marriott human resources manager evaluated to determine whether her interpreting in a pre- termination conference with an employee was, in fact, a reasonable accommodation. In this case first reported in the March edition, the employee, who has a hearing impairment, was fired for stealing after questioning by the employer and the HR manager. The employee alleges in his complaint that the HR manager made several significant mistakes in interpreting, including attributing a statement to him that he had stolen the money to pay his credit card debt. The Court has also denied Marriott's motion to dismiss the claim. ( Mohamed v. Marriott International Inc., DC SNY, No. 94 Civ. 2336, 3/ 7/ 96)
- ARBITRATION CLAUSE BARS CLAIM - The Fourth Circuit Court of Appeals has affirmed the decision of a lower court that an employee's failure to invoke a contractual grievance- arbitration mechanism served as a bar to her ADA lawsuit. [ The preclusive effect of these clauses is presently one of the hottest issues in labor and employment law.] While on leave for a work- related injury, the employee's job was eliminated. She sued, alleging among other things that the failure to offer her a light- duty position violated the ADA. Although the union contract stated that all disputes " may" be referred to arbitration, the Court found that such language is merely intended to give an employee " the choice between arbitration and abandonment of his claim." ( Austin v. Owens- Brockway Glass Container Inc., 5 AD Cases 488, CA4, 3/ 12/ 96)
Well, my attempt at " humor" a few issues back went over like the proverbial lead balloon; not to be deterred, here's another attempt to put a smile on your face. Ciao! (" Chow?") = 8->
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There's a guy with a Doberman pinscher and a guy with a Chihuahua. The guy with the Doberman pinscher says to the guy with a Chihuahua, " Let's go over to that restaurant and get something to eat."
The guy with the Chihuahua says, " We can't go in there. We've got dogs with us."
The guy with the Doberman pinscher says, " Just follow my lead."
They walk over to the restaurant, the guy with the Doberman pinscher puts on a pair of dark glasses, and he starts to walk in.
A guy at the door says, " Sorry, mac, no pets allowed."
The guy with the Doberman pinscher says, " You don't understand. This is my seeing- eye dog."
The guy at the door says, " A Doberman pinscher?"
He says, " Yes, they're using them now, they're very good."
The guy at the door says, " Come on in."
The guy with the Chihuahua figures, " What the heck," so he puts on a pair of dark glasses and starts to walk in.
The guy at the door says, " Sorry, pal, no pets allowed."
The guy with the Chihuahua says, " You don't understand. This is my seeing- eye dog."
The guy at the door says, " A Chihuahua?"
The guy with the Chihuahua says, " You mean they gave me a Chihuahua?"
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" News Reviews to Peruse"
Number 28 June 15, 1996
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinions expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Comments, contributions or questions, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- COMING SOON TO A THEATER NEAR YOU - Accessibility! The United Artists Theater Circuit, as part of a settlement with the Department of Justice, has agreed to make its more than 400 theaters ( and 2300 screens) accessible. Under the settlement, UA has agreed to provide sufficient integrated spaces so that wheelchair- using patrons can sit with family and friends; install ramps; install aisle seats with folding or removable armrests; and modify restrooms, concession stands, public telephones and drinking fountains. U. S. Attorney General for Civil Rights Deval Patrick, observing that UA had set out to do " not just the lawful thing but the right thing," called the settlement " a model for the entire industry." Patrick added that Justice is currently investigating other chains and individual theaters for compliance with the ADA.
- CUTBACKS AT JAN - As a result of federal budget cutbacks, the Job Accommodation Network has been forced to temporarily shutdown its electronic bulletin board and limit the number of copies of publications it provides to callers. The JAN, funded by the President's Committee on Employment of People with Disabilities and located on the campus of West Virginia University, provides free advice via a toll free telephone number on how to accommodate persons with disabilities. JAN's toll free number is 800- 526- 7234. It's web site can normally be found at http:// janweb. icdi. wvu. edu. ( See attachment for a JAN " true story.")
- NEW INTERNET SITE - The Thompson Publishing Group, publisher of the ADA Compliance Guide, has announced its new web site at www. thompson. com.
- CHRYSLER POLICY UNLAWFUL - A Chrysler Company policy that excluded any applicant with high blood sugar from hiring has been ruled unlawful by the U. S. District Court for Eastern Michigan. The blanket policy, challenged in a lawsuit by an electrician/ applicant who has diabetes, was found to be over broad. The plant physician did not conduct an " individualized assessment" of the applicant's ability to safely perform essential functions. ( EEOC v. Chrysler, C. A. No. 94- CV- 74979- DT, E. D. Mich. 1996)
- TEXT TELEPHONE NOT AN UNDUE HARDSHIP - A Maryland Court has denied the claim by the Better Business Bureau of Greater Maryland that providing a text telephone ( TT) for its hearing- impaired membership coordinator was an undue hardship under the ADA. The Bureau had claimed that the TT would slow operations and that members were unfamiliar with the use of a relay system. Calling the last argument " offensive," the court found no evidence that the TT or relay system is awkward or that the Bureau's membership is unfamiliar with relay systems.
- SMOKE- FREE ENVIRONMENT NOT PER SE UNREASONABLE - A federal court in New York has refused to dismiss the claim of a correctional officer who asked for a no- smoke work environment as a reasonable accommodation for his respiratory problems. The correctional facility had moved to dismiss the officer's claim on the basis that he did not have a disability. Citing Staron v. McDonald's Corp. ( reported in " ADA News" No. 16, June 1995), the court denied the motion, stating " it is plain that Congress did not intend to isolate the effects of smoking from the protections of the ADA." ( Muller v. Costello, U. S. Dist., N. D. N. Y. 196)
In another prison- related case, the 10th U. S. Circuit Court of Appeals affirmed the dismissal of a lawsuit brought under Title I of the ADA by a prison inmate. The Court held that the ADA does not apply to prisoners' employment.
- NOTICE OF DISABILITY - The 11th U. S. Circuit Court of Appeals has affirmed a decision that dismissed a lawsuit brought by an job applicant denied assistance to take a written pre- employment test because the applicant failed to give adequate notice of her disability to the prospective employer. The applicant, who has a learning disability, informed the prospective employer that she was illiterate and had taken special education courses, but did not say she had a learning disability. According to the Court's opinion,
While illiteracy is a serious problem, it does not always follow that someone who is illiterate is necessarily suffering ( sic) from a physical or mental impairment. Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA.
( Moriskey v. Broward County, U. S. App., 11th Cir. 1996)
- NCAA UPDATE - The National Collegiate Athletic Association has suspended its requirement that high school student athletes get their credentials approved by the NCAA clearinghouse to have early visits to colleges. The suspension is seen as a reaction to the complaint lodged with the Justice Department, and a subsequent letter from Justice to the NCAA, regarding the effect the NCAA's core curriculum requirements have on student athletes with learning disabilities. ( See " ADA News," Nos. 24 & 25, Feb./ Mar. 1996)
- ACCESSIBILITY OF PUBLIC SERVICES - According to an article in the June " ADA Compliance Guide Monthly Bulletin," " public services must be accessible not only in facilities owned by a local or state government but also at private businesses that help make public services available, such as stores that sell mass transit tokens." ( Your editor, being unaware of any, contacted the publisher for support for this statement. While the authority is not stated clearly in, e. g. a law, regulation or court opinion, it is likely given several secondary authorities that this statement is accurate.) This statement was used to illustrate a recent settlement by SEPTA of a suit brought against it by two individuals and Disabled in Action of Pennsylvania. By the settlement, SEPTA agreed to ensure all new sales outlets are accessible, provide notice to 44 stores that sell SEPTA tokens that their premises are inaccessible, and require the stores to install ramps or their involvement with SEPTA will be terminated.
- INTERPRETER FOR CPR COURSE - The San Francisco Bay Area Red Cross has agreed to provide a qualified interpreter for a cardiopulmonary resuscitation course, in settlement of a Justice Department claim brought on behalf of a deaf individual.
- CORRECTION - It was reported in last month's newsletter that the NAADAC Conference planned for October in Pittsburgh is co- sponsored by Penn State University and the State Senate. This information was extracted from the NAADAC Bulletin. It has now been brought to the attention of your editor that the Pennsylvania Senate is NOT sponsoring of this event. ATTACHMENT - FROM THE JAN CHRONICLES
Sometimes, common sense is all that is needed to come up with a suitable accommodation. The following is a true story related by Deborah Hendricks, JAN Assistant Manager:
A consultant received a call form a business man who had just hired a telephone sales representative. He said, " This man has a total hearing loss in his right ear and I need to know how I can accommodate him to use the phone." The consultant was quiet for a second, then said, " Well, can he hear all right out of his left ear?" The businessman said, " Oh yeah, he's got no problem hearing out of his left ear."
The consultant asked, " Well, don't you think he'll know to use the phone on his left ear?" There was dead silence on the other end of the line, then the man said, " You know, I'm sitting here with the telephone up to my right ear. All I could think of was, how in the world is this guy going to be able to do this? It never once dawned on me you just turn it around the other way."
It's okay to laugh, but which one of us hasn't been in that businessman's position at some time? @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 29 July 15, 1996
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinion expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- TERMINATING BENEFITS NOT DISCRIMINATORY - A federal district court in Kansas has held that terminating the benefits of an employee who was accommodated by allowing her to work part time is not a violation of the ADA. The employee, who has chronic fatigue syndrome, was permitted a reduced schedule as a reasonable accommodation. The employer's benefits policy provides that employees who work less than 30 hours per week are not entitled to health benefits. The court stated that nothing indicated that the employee was being discriminated against on the basis of her disability, but that she was being treated like all other employees. ( Tenbrink v. Federal Home Loan Bank, DCKan., No. 94- 4236- SAC, 2/ 6/ 96)
- SUPREME COURT REPORT - The U. S. Supreme Court heard argument in April on two important cases involving disability law. In Lane v. Pena ( US SupCt, No. 95- 365, 4/ 15/ 96), the Court is asked to decide whether a student dismissed from the Merchant Marine Academy because of his diabetes can collect monetary damages from the federal government. In the other case, the Court will address the question whether an accommodation under the ADA must be made even where it conflicts with the provisions of a collective bargaining agreement. This case involves an employee with epilepsy who was given a day shift job where he could work at ground level as an accommodation. He was later " bumped" from that position by another employee exercising the seniority provision of the collective bargaining agreement. The EEOC has entered the case on the side of the employee. ( Eckles v. Consolidated Rail, CA 7, No. 95- 2856, 4/ 5/ 96)( reported in " ADA News" No. 26, 4/ 15/ 96)
- RISK OF RELAPSE EVALUATED - Two federal courts recently examined questions regarding an employer's ability under disabilities laws to consider past substance abuse as a job- related criterion. In New York, the Second Circuit U. S. Court of Appeals ruled that a transit worker was not protected by the Rehabilitation Act because his past record of substance abuse - which included a relapse after previous treatment - and the opinion of two psychiatrists that the employee had a significant chance, " indeed a likelihood," of relapse, gave his employer reasonable grounds to doubt his ability to perform the job. The employee had been terminated after a succession of progressive disciplinary measures for chronic absenteeism, which he admitted was a result of his addiction. In an earlier review of this case, the Second Circuit stated that " conduct which is associated with or which is a manifestation of a handicap is quite relevant, as distinct from the handicap itself, in assessing whether a worker is ' otherwise qualified.'" ( Teahan v. Metro- North Commuter Railroad Co., CA 2, No. 95- 7123, 3/ 26/ 96)
In the second case, the U. S. District Court for the Eastern District of Louisiana ruled that a hospital could require a neurosurgeon who is a recovering alcoholic to undergo a medical evaluation of his risk of relapse prior to the reinstatement of his staff privileges. The Court found that the hospital had not acted " unreasonably" in requiring the evaluation, as " a doctor working while severely depressed or impaired by alcohol poses a ' direct threat' of ' actual risk' of harm to others" ( citing to ADA regulations construing " direct threat" under Title I of the ADA). ( Judice v. Hospital Service District No. 1 of the Parish of Terrebonne, DC ELa, No. 95- 986, 3/ 13/ 96)
- AFFIRMATIVE ACTION RULES NOT CHANGED - The Labor Department has abandoned planned changes to requirements for affirmative action plans by federal contractors. The changes would have reduced the number of contractors required under the Rehabilitation Act to have formal affirmative action plans by raising the threshold for the requirement.
- PRIOR INCONSISTENT STATEMENTS - Several courts have ruled on or are considering the question of the effect of prior statements made by persons seeking relief under the ADA. In Texas, an employee who claimed to have a mental disability due in part to harassment by his supervisor was found to be a " qualified individual with a disability" based, in part, on his application for long- term disability benefits. By his " own admission," according to the court, he was " totally disabled." ( Hatfield v. Quantum Chemical Corp., 5 AD Cases 765, STex., 4/ 2/ 96) A federal district court in Colorado similarly found it " logically impossible" for an employee to be sufficiently disabled to qualify for long- term disability benefits and yet be capable of performing the essential functions of her job. ( Cline v. Western Horseman, 5 AD Cases 714, DC Colo., 4/ 19/ 96)
Closer to home, the Third Circuit U. S. Court of Appeals ( which includes Pennsylvania) will review the decision of a federal district court which denied recovery under the ADA to a fired employee who had stated on Social Security and disability benefits applications that he was " totally and permanently disabled." ( The decision of the district court was reported in " ADA News" No. 21, 11/ 15/ 95.) The EEOC, which has filed a friend of the court brief, argues that the inquiry under the ADA differs in " fundamental ways" from the inquiry applicable to the award of disability benefits. ( McNemar v. Disney Stores, 4 AD Cases 897, DC EPa., 1995)( For another similar case, see " ADA News" No. 25, 3/ 15/ 96.)
- CLAIMANT MUST COOPERATE WITH EMPLOYER - A federal district court in Texas has dismissed the ADA claim of an employee who was fired because her disability could not be accommodated by her employer. The employee - whose diagnosed sarcoidosis made her unable to work around chemicals - was fired because the employer had no jobs which did not involve exposure to chemicals or chemical fumes. The court noted that the employee never requested a specific accommodation, refused to authorize release of information about her condition by her physician to the employer, never identified the alternative job she wanted, and never identified the chemicals that her condition required her to avoid. The court observed further that, in any event, there was no reasonable accommodation that would have been effective. ( It's just intuition, but I don't think we've heard the last about this case.) ( McAlpin v. National Semiconductor Corp., DC NTex., No. 4: 95- CV- 480- A, 4/ 17/ 96)
- DOG QUARANTINE UNLAWFUL? - Hawaii's 120- day quarantine requirement for all dogs entering the state may violate the ADA, according to the U. S. Court of Appeals for the Ninth Circuit. The decision overturns the summary judgment granted the rabies- free state by the lower court. The appeals court found that, without reasonable modification to the quarantine, persons who depend on assistance animals are effectively deprived of the benefits of Hawaii's services and activities. ( Crowder v. Kitagawa, CA 9, No. 94- 15403, 4/ 30/ 96)
- IMPERMISSIBLE INTERVIEW QUESTIONS - Questions about an applicant's workers' compensation history are the most frequently asked illegal questions in job interviews, according to a recent study. Questions regarding workers' compensation may not be asked of an applicant OR of an applicant's references or past employers.
- ACCESSIBLE AIRPORTS - " Access Travel: Airports, A Guide to Accessibility of Terminals," a booklet published by the Airports Council International - North America, contains a graphical listing of domestic and foreign airports accessible to persons with disabilities. Copies are available at no charge from the Consumer Information Center, Pueblo, CO 81009. ( The Internet web site for the CIC is at http:// www. pueblo. gsa. gov/) " New Horizons for the Air Traveler with a Disability" - which contains general information about air travel for persons with disabilities is also available from the CIC. Northwest Airlines provides its own booklet on the subject entitled " Air Travel for People With Disabilities," available free on request to Northwest Airlines Distribution Center, 8711 Lyndale Ave. South, Minneapolis, MN 55420- 0073.
- ACCESSIBLE OLYMPICS - Calling the Olympic Stadium in Atlanta, Georgia " the most accessible stadium in the world" and " a model for all future stadiums," U. S. Assistant Attorney General Deval Patrick announced an agreement May 15 between the Justice Department and the Atlanta Committee for the Olympic Games that ensures the stadium and four other venues will be completed in compliance with the ADA. The Atlanta Stadium will also play host to the Paralympics, set to begin August 15. After the games, the stadium will be converted for use by the Atlanta Braves.
- AFFIRMATIVE STEPS TO ACCOMMODATE REQUIRED - The U. S. District Court for the Eastern District of Pennsylvania has recently decided a case under Title II of the ADA involving access to a public facility. A person with severe arthritis and degenerative disc disease was summoned to appear before the Montgomery County court on a domestic matter. He informed court officials that his condition prevented him from waiting in court more than three hours and, based on a previous experience where he was forced to wait two to three hours, requested assurances that he would be accommodated. When none were forthcoming, he refused to appear in response to the summons and sued the county under the ADA for failing to make an accommodation for his disability. The federal court ruled that the county was required to provide " formal assurance about the particular accommodations which would be made for his disabilities or that he would not be required to remain beyond the limit of his endurance." ( Adelman v. Dunmire, 1996 LEXIS 2810, EDPa. 1996)
- " TODAY'S WORD BUILDER" - A speaker at a recent National Employment Law Institute meeting in Washington, discussing the broad range of accommodations requested by employees under the ADA, referred to the accommodation requested by an employee who claimed her supervisor was causing her disability as a " bossectomy." Hmmmmm.
Thanks for reading. See you next month!
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" News Reviews to Peruse"
Number 30 August 15, 1996
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinion expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Contributions, questions or comments, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- THIRD CIRCUIT AFFIRMS MCNEMAR - The Court of Appeals for the Third Circuit, which includes Pennsylvania, has affirmed a lower court decision reported on in an earlier edition of this newsletter, McNemar v. The Disney Store. By its decision, the Third Circuit has established that an ADA claim can be barred by statements made by a claimant on federal and state benefit forms. Subsequent to his discharge, the claimant in this case st